Thailand: Lèse-majesté today | New Mandala

Thailand: Lèse-majesté today | New Mandala

 

NICHOLAS FARRELLY, 

14 AUGUST 2015

Longtime New Mandala readers know that we have, over this past decade, paid a great deal of attention to lèse-majesté prosecutions in Thailand.

Flicking through our hundreds of old posts on the topic I am reminded of the big collective effort to put public criticsm of lèse-majesté on the agenda: remember “Arkong“, Suwicha Thakor and Darunee Charnchoengsilpakul, and Chotisak Oonsong and Chiranuch Premchaiporn, and all the rest.

Even those five names remind us that there have been many difficult cases over the years, where the heavy boots of Thailand’s royalist, militarist and even democratic forces have come down hard on individuals judged to have stepped out-of-line. There isn’t a Thai government I can name that hasn’t played the political game when it comes to lèse-majesté.

Some of our detractors like to claim that New Mandala‘s occasional emphasis on this topic distorts our analysis of the overall picture of Thai society and politics. Of course there is much more to the country’s current problems than the restrictions on free expression reinforced by Article 112 of the Criminal Code.

Yet since it seized power in the May 2014 coup, the military regime has insisted on some of the lengthiest lèse-majesté sentences in Thai history. The 30-year sentence recently imposed on Pongsak Sriboonpeng is a case in point. And sadly he’s not alone. The list of Thailand’s political prisoners grows by the month.

Robust international condemnation has followed these soul-destroying sentences, including hard-hitting statements from the United Nations. And yet there is no indication that Thailand’s power brokers are prepared to temper their aggressive prosecutions.

From their perspective the security, indeed the very existence, of the kingdom relies on such harsh punishments, and they make no apologies for stomping out dissent. It’s classic authoritarian posturing. It also works under conditions where many Thais have been led to believe that perceived opponents of the Thai monarchy are the lowest-of-the-low.

Under the current military regime it looks like there is almost no chance of reform to the law. It is just far too useful given the  politics of succession that are swirling around.

What does this mean for the country? Can anything be done about the chilling effect of lèse-majesté?

Nicholas Farrelly is the co-founder of New Mandala, a Fellow in the Bell School of Asia Pacific Affairs, ANU, and a strong advocate for the study of Thai society.

Crime and punishment under the Thai junta | New Mandala

Crime and punishment under the Thai junta | New Mandala

WAD RAWEE, GUEST CONTRIBUTOR, 

13 AUGUST 2015

Photo by Reuters/Chaiwat Subprasom.

Thailand’s latest coup was meant to end conflict and build reconciliation. With no chance of justice for one side of politics, nothing could be further from the truth. 

According to a report by Internet Law Reform Dialogue (iLaw), a NGO that has been recording lawsuits relating to freedom and human rights in Thailand since the coup of 22 May 2014, at least 751 people have been called to report to the National Council for Peace and Order (NCPO).  In addition, some 428 people have been arrested, 163 people have been prosecuted for political reasons, and 124 people have been prosecuted by the military court.

There are at least 68 people currently detained by the NCPO, among them 34 charged with offending the Thai monarchy (Article 112 of the Thai Criminal Code, or the Lèse-majesté law). Another 34 have been charged for committing crimes involving weapons and violence.

None of these figures include the number of lawsuits relating to Article 112 leveled against those who are accused of using the name of monarchy for their own benefit.

Among those who were prosecuted by the NCPO, the case of Tiensutham, against whom the military court issued a verdict on 31 March, represents one of most severe penalties we have recently seen. Tiensutham has been sentenced to 50 years in jail for posting five Facebook statuses deemed by the Military Court as insulting the monarchy. He pleaded guilty, so the sentence was reduced by half, to 25 years in jail.

However, the draconian penalty on Tiensutham is not the highest on record. The Military Court’s verdicts on Sasiwimon and Sam Parr on 7 August were in response to Facebook posts as well. Sasiwimon got 56 years in jail, 28 years after pleading guilty, because she posted seven messages on Facebook. Sam Parr got 60 years, 30 years after pleading guilty, for six posts.

A female journalist from Prachatai who is following the cases said:

The penalty imposed was twice as harsh as by before the [22 May 2014] coup. The military court gave 10 years per act, while the civil court gave six years per act at a maximum.

After the case of Amphon Tangnophakhun, who was jailed under Article 112 in 2011 because he was accused of sending SMS messages deemed to defame the Thai royal family and who later died in jail, the maximum penalty regarding Article 112 was reduced to five years per act.

The journalist went on to note that under the Military Court, currently if a suspect is a political activist [ie a Red Shirt supporter] the penalty could be 10 years per act. But if the suspect is not a political activist, the penalty might me less harsh. Unlike the Civil Court, the Military Court also has a very ambiguous range of consideration for what a penalty should be, without any general guidelines.

Yaowaluck Anuphan, chief of Thai Lawyers for Human Rights, established after last year’s coup to help those who were affected by human rights violations, has also given critical comment on the current situation. She said:

The junta gave a threatening message that the penalty for cases relating to Article 112 would be harsh. So we can see that the penalty could be as high as 10 years per act, even though the defendant has pleaded guilty.

According to the Thai Criminal Code, the penalty for cases relating to Article 112 are between three and 15 years. For the Civil Court, the penalty varies, but the more common punishment is five years per act, and could be reduced by half if the defendant pleads guilty. But the military’s conviction is 10 years in jail per act, and five years if the defendant pleads guilty. Anyone who insists on fighting the case, the military has threatened, will get 15 years. They claimed that they have to protect the monarchy.

Beside harsher punishments, there have been a number of political prisoners who have died in prison under suspicious circumstances, leading to allegations that they were beaten to death. Such was the case of Mr Surakrit Chaimongkol, 36, who died on 28 August 2014.

Surakrit was accused of killing a vocal member of the People’s Democratic Reform Committee (PDRC), which led mobs to disrupt the 2 February 2014 general election. He was arrested on 8 July and jailed not long after the coup.

Surakrit died shortly after being moved to Section Four of the prison. His mother met him for the last time during a visit on 21 August. Surakrit told his mother that he was beaten up in a secret prison, and he feared that he would not survive. Every time he was beaten, he heard that all the Red Shirt supporters would be killed.

“My son didn’t do it. How could he confess? We only have to wait until the truth is revealed,” Surakrit’s mother told Prachatai.

Torture to obtain confession was revealed to the public for the first time in the case of Sansern Sriunruean, 63, on 18 March 2015. Prachatai identified images of bruises and scars from electric shocks applied to his body. On the same day, Thai Lawyers for Human Rights issued a statement calling the military to stop using martial law to arrest people, and the officers responsible for torturing must be punished.

The organisation has also revealed that it received four complaints from those accused of detonating bombs in front of the criminal court building on 7 March 2015. The accused claimed that they were punched and hit in the head, chest, and back in order to obtain information. All of this happened when the accused were detained during a period of martial law between 9 and 15 March 2015.

Sansern was forced to confess that he was involved in the bombing plan, because he used to give lectures about politics. He was a taxi driver, and when he was studying at Chiang Mai University he joined democracy movements. Prachatai stated that Sansern called himself a socialist. In 2010, he was one of the founders of The Social Democratic Front Party [พรรคแนวร่วมสังคมประชาธิปไตย], which was aborted because it did not have enough members required by law to form a political party.

Sansern’s protest movements were based on peaceful means. He did not hide his political views and overtly disagreed with the coup. He declared that he was not the type that instigates terrorist attacks or bombings.

“I can only say what I think and can only talk about what I have done [to oppose the coup], but I cannot say that I did things that I didn’t do. They tortured me, but I won,” Sansern has said.

Eventually the soldiers stopped torturing him and turned to persuasion, by giving him water and food. It’s “for the sake of our friendship,” Sansern was told, before he was brought to a press announcement.

The Thai judicial system became a political tool for the anti-Thaksin conservative royalists long before the country’s most recent coup. Inconsistencies in the Constitutional Court and the Criminal Court caused grievances among the people.

Two verdicts that came out in July 2014 were obvious examples of legal inconsistency. The first verdict was on whether the PDRC thwarted the 2014 election by surrounding the Dindaeng voting station in Bangkok. On 9 July, the Criminal Court dismissed the case, stating that “the assembly of the PDRC members was legal action according to the ruling of the constitution court.”

The second verdict was issued on 22 July. It was regarding a case in which three people were arrested and accused of hanging a poster calling for autonomy for Lanna Thai from Bangkok on a crossing bridge in Chiangrai.

The court ruled the defendants be jailed for four years, reduced to three, but suspended the punishment as the court saw that the defendants gave useful testimonies.

The verdict stated that “hanging a poster with a message that stirs unrest may stir unrest. The message expresses rebellious views. When the defendants claimed that they did so to protest against injustice from the dismissal of the case against PDRC, the defendants’ accusation was baseless, thus does not make their action legal”.

The above two verdicts perfectly reflect the current Thai political conflict—the case for thwarting a general election was dismissed, but hanging a poster was penalised.

This contradiction has repeatedly occurred in the past decade. Another inconsistency is judicial issues between the military and the Red Shirt. Especially in 2010, when the military shot at the people, thar incident brought about great wrath among Red Shirt supporters. After the 22 May 2015 coup, the NCPO changed the investigation team whose task was to bring those who were responsible for the 2010 crack down on the Red Shirts.

One common thing between the political and the Lèse-majesté cases is forcing the accused to succumb, not just to authority, but to the idea and values that the elite want. This is not the usual legal interpretation of the law, but a brainwashing process.

Parallel to using force is the use of double standards. Red Shirt supporters and Thaksin supporters are severely penalised, especially in Lèse-majesté cases, as are those who are accused of armed struggle against the state. The anti-Thaksin activists, however, get mild penalties, if at all.

This condition has been going on since the beginning of the Thailand’s political conflict many years back. It has become worse since the May 2014 coup.

The claim by the NCPO that the coup was necessary to stop conflict and build reconciliation is not true and can never be true.

Wad Rawee is a Thai journalist, writer and editor.

Thai Coup: A normal way of life | New Mandala

Thai Coup: A normal way of life | New Mandala

 

CHATWADEE ROSE AMORNPAT, GUEST CONTRIBUTOR, 

8 DECEMBER 2014

General Prayuth Chan-ocha, with the blessing of the powerful monarchy and Privy Council, declared martial law, followed by rolling out the army’s tanks on the streets of Bangkok and sealed the fate of the country by staging the so-called “bloodless” coup d’etat of 22 May 2014. It was déjà vu, all over again! Though the political event looked serious in the eyes of the world, it was an easy task for the Thai general, the coup leader, who often holds the title “Chief of the Army” to copy the same model as his predecessors. The final stage of any Thai coup is the customary photo-op with the king for full pardon and legitimacy.

This may, perhaps, be the core origin of the Thai culture of impunity, because such an act of treason against a government is punishable by death. As usual, the king gave a full pardon for the general, for any past, current and future undertakings associated with the coup d’etat.

Why does Thailand has to go down this path every few years with the same old characters again and again while the country and the majority of the population suffer? I would hereby like to emphasise again that the people suffer, not the handful of the military thugs who stage a coup and the monarchy and its network. They have all been enriched by this despicable deed. It all boils down to Thailand’s warped political system which is very confusing. Most foreigners think the Thai political system is like that of Japan or the United Kingdom.

The current system is not at all democratic! It is like the old absolute monarchy except that the monarchy has all the glories, even though the country is being run by the government whether elected or not. While the Thai monarchy and its network controls the print and television media, namely, the Bangkok Post, The Nation and various TV stations including the government owned Public Relations Department, it erroneously informs the world that Thailand is a democratic country with the king as “Head of State,” an indirect comparison as in the case that of the Queen of England or Emperor of Japan who are, in reality, politically powerless. Just a quick glance of each and every Thai Constitution shows how powerful the Thai king is.

General Prayuth Chan-ocha said he abrogated the current constitution except Sections concerning the monarchy. Thus, the following are still in use and true:

Section 3 of the Thai constitution states:

The sovereign power belongs to the Thai people. The King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution.

The above Section is not known to Westerners or even most Thais. It is like saying the car belongs to the people but only the king can drive the car. Or, the people own the gun but only the king can pull the trigger. In both cases, the people have to do the maintenance and upkeep of the car and gun.

Section 8 of the Thai constitution states:

The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.

This section means the Thai King is like God and no one can sue the King even if he commits robbery, blatant lies, mayhem or murders. Article 112 of the Thai Criminal Code states:

No one can criticize the king and any member of his family, even if such criticisms are based on the truth.

This is called “lese majeste” and it carries a jail term of 3 to 15 years for each offense.

Section 10 states:

The King holds the position of Supreme Commander of the Thai Armed Forces.

Section 11 is:

The King has the prerogative to create titles and confer decorations.

All the sections listed above clearly indicate the ultimate power lies with the Thai king. There can be no dispute in my mind that the king and/or his inner circles have ordered the coup d’ etat just like all the previous coups. This one is no different from the old ones. In sum, after he gives the order, he often stays low profile and never utters a word. Then he would appoint a so-called “temporary or neutral prime minister” of his own choosing. Nonetheless, in this latest coup, with this general in charge, the king and his inner circle decided on the coup maker himself as the prime minister in order to save time since they are now in full control of the country.

Thus I strongly feel the King and coup d’etat go hand in hand. Why does nobody dare talk about this? As you know, he is also shielded by the lese majeste law which forbids people from making any questioning comments about him.

As you can see, there can be no denying that the Thai king and his inner circles are heavily involved in controlling the country. They simply do not feel at ease if someone else such as deposed former Prime Minister Thaksin Shinawatra or his sister Yingluck is in the premiership. I believe it all comes down to money, the vast assets, business empire and cash worth some US$40 billion as of 2014 that the Crown Property Bureau (CPB), the investment arm of the King, controls.

Their investments extend all over Thailand and the world, be it in the field of banking, real estate, petro-chemicals, shopping centers, hotels, and you name it, they have it all. A distinctive Siam Park, a grandiose amusement park in Spain also belongs to the CPB. Another crown jewel of the CPB is the 5-Star and luxurious hotel chain, the Kempenski Hotel, worth in the billions of dollars also belongs to them.

I am so lost and it makes me sick as to why Thai taxpayers have to pay for all the royals living expenses at a tune of some 300 million pound sterling a year. A fleet of air planes and luxurious yachts were given to the royals on their various anniversaries, all paid for by taxpayers. Now I know why King Bhumibol Adulyadej is the richest monarch in the world and he may be ranked as one of the top 10 richest men in the world.

Lese majeste law or Article 112 of the Thai Criminal Code is flawed from the outset. It was designed to scare people away from speaking the truth.

I would term the current political system as an “Absolute Monarchy by Proxies”: Proxies in a sense that the Thai king uses men around him to do the dirty work and never has to be responsible for the welfare of the people. He only takes all the accolades and praise. When it comes to the nation’s problem or the plight of the people, the Thai king and his supporters would all point their fingers at the government. This is worse than the old absolute monarchy, when the king was responsible for the welfare and stability of the country. Now he does not have to do anything or worry about anything except to watch out that anyone outside of his control who may be the leader of the government.

Thus the intent of the lese majeste law is to scare, intimidate and silence people from talking about the king in a negative way which might include the regicide case of King Ananda. Friends often ask me if I am afraid of lese majeste law. Indeed, I would rather die than live the life of deceit, hypocricy and fear of lese majeste law. Those who are associated with the European Union, I request that please attach the removal of lese majeste law in your condition to stop sanctions. Thai people are simply helpless to do anything with this law, even a civilian PM who often ignores the discussion of this law.

With this uncivilized and barbaric law still in the book, only the monarchy and a handful of elite will benefit. The CPB has amassed their wealth exponentially every year, while poor Thais are getting poorer.

Also, for the justice of King Ananda and the three innocent pages who were wrongly executed after his death, we must continue to search for the murderer, until he is brought to justice.

General Prayuth’s latest proclamation of “reform” for Thailand is a copout and an excuse for an even more dictatorial regime in defence of the monarchy and the protection of their vast wealth.

Thailand is still full of corruption starting from the top at the pyramid on which the monarchy and its network sit. Next in line is the score of top generals who benefit from the army budget annually. More than 50% of such army budget often goes into the bank account of the generals and/or their wives.

In sum, I feel if Thailand wants to truly solve her problems, the country must first decide to abolish the lese majeste law once and for all, so people can openly discuss the subject matter in a truthful manner and without fear of punishment. Because, to be frank, most of the country’s ills and troubles stem from the monarchy and its network.

Chatwadee Rose Amornpat is based in London. She was charged with lese majeste by the Thai military junta in July 2014. For previous New Mandalacoverage of her situation see this post from earlier in the year.

Thailand may attempt to extradite UK citizen for insulting monarchy | Asian Correspondent

Thailand may attempt to extradite UK citizen for insulting monarchy | Asian Correspondent
Casey Hynes Jun 20, 2014 

Chatwadee “Rose” Amornpat. Pic via the New Mandala website.

Thailand’s Ministry of Foreign Affairs has moved to bring a Thai woman back from England on lese majeste charges. According to MCOT, the Ministry of Foreign Affairs reached out to other agencies, including the Royal Thai Police, to bring Chatwadee “Rose” Amornpat to trial under the country’s lese majeste law.

Rose was born in Thailand but moved to England, where she started a family. She took to social media to post messages critical of Thailand’s monarchy. Rose often posts videos to Facebook and those who support her have called her an “angel of democracy.” However, earlier this spring, her parents reported her to authorities, submitting several of her videos as proof of her critical attitude. Prachatai reports that her parents were “heavily bullied” before they reported their daughter, and that Rose herself is “subjected to hatred and bullying online and offline.” Violating the lese majeste law is a serious offense in the country, and can mean three to 15 years in prison. According to the International Federation of Human Rights (FIDH), six people are currently imprisoned in Thailand for violating the lese majeste law.

MCOT reported that Sek Wannamethee, Director-General of the Department of Information of the Ministry of Foreign Affairs, told journalists this week “that the foreign ministry, the Royal Thai Police and the Office of the Attorney General are currently working on legal provisions” to bring Rose back from London to face lese majeste charges. Thailand does have an extradition treaty with the United Kingdom, but because Rose has British citizenship, it is unclear if that will complicate the process. MCOT also noted that while the extradition process is looked into, the Royal Thai Embassy in London will begin verifying Rose’s address, and the addresses of other reported lese majeste offenders currently living in the UK.

According to the UK government website, extradition requests must pass a dual criminality test, which “means that for someone to be extradited, their alleged conduct has to be a criminal offence in both the surrendering and the requesting state.” The site also states that there are 32 categories of offenses for which the dual criminality test does not apply, but anything outside those 32 must be considered a criminal offense in the state requesting extradition and in the UK in order to qualify.

Thai PBS reported that Pol Gen Somyos Pumpanmuang, the deputy police chief, told reporters that police were being instructed to follow up on all lese majeste cases that “are still pending with the police or which are yet to be lodged with the police.”

Rose was in the news earlier this week after a Thai man posted a video of himself going to her former home and painting the Thai flag on her door and flashing a gun (now believed to have been an air gun). Prior to that, a woman posted a video, also of her visit to Rose’s home, saying she planned to slap Rose and throw eggs at her, according to Prachatai. However, the news site reported Rose had said she moved out of that home after separating from her husband so the visits were to no avail.

In other lese majeste news, a lecturer known to be critical of the law and the coup was released on Thursday after one night in detention, according to the  Phuket Gazette. Worachet Pakeerut, a legal expert and lecturer, was questioned about his political stances and released on 20,000 baht bail, on the condition that he would not join any political movements or leave the country.

Hyper-Royalists Infect Thai Society | Asia Sentinel

Hyper-Royalists Infect Thai Society | Asia Sentinel
Pavin Chachavalpongpun, June 19, 2014

Rose’s war with the monarchists

Following the May 22 coup in Thailand, as the political crisis has deepened, so has the degree of hyper-royalism, which has proliferated out of control. This time, the battlefield is no longer confined within the Thai borders. Thai hyper-royalism has gone global.

An example of this in fascinating microcosm involves an anti-monarchist named Chatwadee ‘Rose’ Amornpat, a London-based hairdresser, who for months has been in open war with the Thai royal family. Born a Thai, Rose settled in England, marrying and giving birth to two children. She later separated from her husband and moved out of their shared house. Recently she has become a YouTube sensation by posting numerous video clips blaspheming the much-revered monarchy. Her action has outraged royalists.

Many have condemned Rose for attacking the monarchy on a personal level, employing extremely vile language to reflect her radical anti-monarchic attitude. But Rose has done something beyond anyone’s imagination—violating the most guarded Thai taboo of cursing the monarchy. She has broken all the barriers when it comes to speaking out. Rose has set a new standard, for good or bad.

Because she is now a British citizen, Rose has also challenged the draconian lèse-majesté law which states that defamatory or insulting comments about the king, queen, heir apparent and officers of the royal court incur three to 15 years in jail. Obviously, Rose has violated the law and is now being hunted by the junta, which instructed the Thai Foreign Ministry to seek cooperation from the British government to extradite Rose to Thailand. But because the UK has no lèse-majesté law, Rose will not be deported.

After legal means became futile, hyper-royalists apparently decided to take the matter into their hands. Last week a Thai woman named Kae Kanyarat arrived at Rose’s residence with a dozen eggs. She rang the bell several times, but nobody answered the front door. Rose was nowhere to be seen. The woman then began to shout loudly, knocking at the doors of Rose’s neighbors as well, asking about her whereabouts. When the neighbors did not cooperate, she threw eggs at them before taking off in her vehicle, apparently with a British friend as the driver.

A few days later, a young Thai known as DJ Ken also turned up at Rose’s home, vandalizing the front door by painting a Thai flag on it and flashing a supposed fake gun in an apparent attempt to threaten the woman. In both cases, the assailants filmed their own acts and posted them online. The video clips have gone viral. Rose announced that she would file complaints with the British police. Back in Bangkok, hyper-royalists offered their moral support to the “brave” two Thais who harassed Rose. They became national heroes.

For several years, hyper-royalism has emerged as a dominant ideology designed to identify potential enemies of the monarchy and give the practitioners the legitimacy to punish them. This has built a protective wall around the monarchy, encapsulated within the concept of the monarchy being the most sacred, untouchable and inviolable institution in a country where democratic institutions have been treated with disdain.

The need to defend the monarchy at all cost has come to rule the Thai consciousness. Those who fail to display love and respect, let alone insult it, will be hit with stiff social sanctions and prosecution. As the end of the current reign nears, with King Bhumibol Adulyadej increasingly frail, royalists have become anxious about the uncertainty ahead. After more than six decades of the king’s rule, Thailand is now confronting a new reality in which the future of the monarchy will face numerous challenges. This sense of extreme anxiety has resulted in the proliferation of hyper-royalism.

This unhealthy phenomenon has taken root and proliferated everywhere – in politics, the media and throughout society. There is no space for non-royalists today, either in Thailand or even in foreign lands, as Rose can attest. Many hyper-royalists would be willing to expel their fellow Thais to leave the country should they not express their love for the King.

Such a discourse, of a country exclusively for monarchists, has become popular and authoritative. It is repeatedly referred to by defenders of the monarchy to justify their actions and policies against their opponents, even when those actions and policies are incompatible with democratic principles.

Army Chief General Prayuth Chan-ocha, the leader of the coup, has meanwhile continued to exploit the monarchy to justify his intervention in politics. Using lèse-majesté as a weapon, he has instructed the army to arrest critics of the coup and possibly charge them with lèse-majesté. A climate of fear has been created.

The social alienation of those with different political opinions and attitudes has indeed divorced the King from his a growing number of his subjects and intensified a sense of resentment which now represents a source of anti-monarchy sentiment both domestically and among Thais living overseas. Since the coup of 2006, the debate over whether the monarchy should readjust itself for the sake of its own survival in a new climate of political openness has become more vigorous as well as divisive.

Some hyper-royalists never hide their aspiration to take Thailand back to the old days under absolute monarchy, as Sondhi Limthongkul, a core leader of the People’s Alliance for Democracy, which worked furiously worked to bring down elected governments, famously said: “Let’s return power to the King. His Majesty is a Dhammaraja King. This is the only way we can prevent Thailand from falling into becoming a failed state.”

But in another reality in rural areas, most residents who lent their support to both former Prime Minister Thaksin Shinawatra and the Red Shirts have become more aware of the political involvement of the monarchy. Rose is an example of how forced affection of the monarchy has failed. Monarchists are the ones breeding anti-monarchists in Thailand.

Pavin Chachavalpongpun is associate professor at Kyoto University’s Centre for Southeast Asian Studies. A warrant has been filed by the Thai government for his arrest.

Thailand's Lese Majeste Erodes the Judiciary | Asia Sentinel

Thailand's Lese Majeste Erodes the Judiciary | Asia Sentinel
Kevin Hewison, 06 February 2013

Those 'protecting' the monarchy, are undermining the legal system

Thailand's repeated use of its draconian lese majeste and computer crimes laws to "protect" its monarchy is also causing serious damage to its judicial system.

Since late December, Thai courts have sentenced three more people to jail terms under Article 112 of the Criminal Code (the lese majeste law) and the closely related Computer Crimes Act. All were identified as opponents of the previous government led by Abhisit Vejjajiva and the Democrat Party. Seventeen others are known to have been sentenced under these laws since the 2006 military coup. This sentencing has been ferocious, with some receiving 15 and 20 years. Almost all of those convicted were identified as opponents of the coup and military-backed governments.

Before the coup that overthrew Prime Minister Thaksin Shinawatra, the lese majeste law was used relatively infrequently. Spikes in its use have coincided with the right-wing and military governments that litter Thailand's political history.

The period of political conflict associated with the Abhisit government, from late 2008 to mid-2011, saw the lese majeste law used to gag a vociferous Red Shirt opposition media and political movement. The Abhisit government repeatedly proclaimed that its censorship and jailing of political opponents was to prevent republicans bringing down the monarchy. It produced little evidence but the jails were filled with political prisoners.

While the Yingluck Shinawatra government, elected in mid-2011, has reduced the use of this politicized law, cases continue to drag through the courts, with the government's royalist opponents having declared lese majeste reform an attack on the monarchy itself.

Many royalists assert that Article 112 is the foundation of protection for the monarchy and, indeed, for the Thai state itself. This conviction blinds them to the fact that the use of this draconian law and the continuing trials are undermining another institution that is vital for the state: the judiciary.

Historically, while the judiciary has been politically supine, it has not been identified as a politically activist institution. However, that changed when the king intervened following an election shambles in April 2006 to urge the judiciary to sort out the political mess. That mess revolved around royalist agitation for Thaksin's elected government to be thrown out. To be sure, the king had long taken an interest in the judiciary, yet this was a call for a judicial political intervention. Since the military coup, the king has repeatedly urged the judiciary to remain activist.

In the period following the coup, the judiciary was first used to target Thaksin, his family and his parties with myriad legal cases. But it is lese majeste that has become defining for the courts. In order to "protect" the monarchy, and the system of political and economic power associated with it, the judiciary has responded with considerable gusto. Increasingly, though, foreign observers and Thai academics and activists are expressing concern at the bizarre legal calisthenics demonstrated by the courts.

Article 112 declares that anyone who defames, insults or threatens the king, the queen, the crown prince or the regent may be jailed. In two recent cases, one activist was convicted not for what he said at a demonstration, but for what the court decided he really wanted to say before he censored himself by throwing his hand across his mouth.

Another journalist and activist was convicted for publishing a critical account of politics that the court interpreted as being about the king, even though he was not mentioned by the author. The author himself has never been charged even though he is known.

In an earlier case, a sickly old man was sentenced to 20 years for sending allegedly threatening phone messages about the queen. While the prosecution could not prove the accused sent these messages, neither could the accused prove he didn't send them. He was convicted and died in prison.

The list of curious convictions is long. The web master of a popular web board was convicted for not removing allegedly insulting posts "quickly enough" in amongst thousands of posts. An American citizen of Thai ethnicity was convicted for posting Thai translations of an academic book about the king on the web. This was a legal activity in Colorado, but when the man was visiting Thailand, he was jailed.

Decisions that seem to mock the legal process and practice and rules of evidence are damaging for the judiciary. Perhaps most damaging, however, has been the Constitutional Court's decisions when Article 112 has been challenged. These interpretations have been virtually inexplicable in legal terms.

In one case, when a lese majeste trial was conducted in a closed court, clearly in contravention of constitutional guarantees on the right to a public trial, the Constitutional Court managed to conjure a reading that made a closed court legal. When others challenged the law, claiming that it contradicted provisions of freedom of the media and of expression, the same court ruled that protecting the monarchy and the existing system of government overrode these constitutional rights.

Article 112 rides roughshod over other basic rights. Bail is regularly refused for those charged with lese majeste, giving the impression that the defendants are considered guilty before they are convicted. That lese majeste detainees are usually shackled, chained and sometimes caged is further evidence for this conclusion. When lese majeste judgments are criticized, court officials threaten legal action.

In short, Article 112 of the criminal code is allocated a legal position that relegates the nation's basic law to a residual status. When the courts make unashamedly politicized decisions in lese majeste cases, the foundations of the rule of law are undermined. When there is no equality before the law and arbitrary judgments are made, then the legitimacy of the judiciary is called into question. Thailand's judges, by elevating Article 112 above all other laws, are threatening the future of the country's democracy.

(Kevin Hewison is Weldon E. Thornton Distinguished Professor in Asian Studies at the University of North Carolina at Chapel Hill)