Sunday, April 29, 2012

Thailand's struggle to face its future-The battle over lèse-majesté and free speech in a climate of fear

On the night of Feb. 29, Professor Worachet Pakeerut was walking to his car outside the law faculty at one of Thailand’s most prestigious universities where he lectures when two men came up to him and repeatedly punched him in the face before fleeing on a motorbike, leaving the professor bloodied on the floor and fumbling for his broken glasses.

The attack wasn’t a mugging or some disgruntled students seeking retribution. It was a clear signal to Worachet, one of seven law professors who have been campaigning to have the country’s controversial lèse-majesté laws amended, to cease. Earlier protests against the campaign included the burning of an effigy of the professor outside of Thammasat University, where he teaches.

International rights groups have warned that a climate of repression and fear built around lèse-majesté is increasingly smothering Thailand as the noose around free speech and basic freedoms becomes ever-tighter and the kingdom’s political heavyweights battle out a vicious feud struggle to forge a deal to end the protracted conflict. People are afraid to speak their minds. A sense of angst and confusion – and increasing anger – permeates the air, from university lecture theatres in the capital to dusty whisky stands in the arid northeast.

While seen by outsiders as a clear case of infringement on human rights, the issue in a country where many view King Bhumibol Adulyadej as a demi-god and affectionately refer to him as “father,” takes on highly emotive connotations which have been dangerously manipulated to silence debate and dissent, and helped fuel a highly-charged and volatile atmosphere.

On Monday, the Bangkok Criminal Court is due to deliver its verdict on the case of Executive Director of Chiranuch Premchaiporn, who is facing a criminal liability charge under Section 15 of Thailand's Computer-related Crime Act for allowing 10 postings deemed as lèse-majesté to appear in Prachatai’s webboard in 2008. She faces up to 20 years in prison. The verdict will have implications on Internet freedom and freedom of expression in the region and is being closely watched by rights groups both inside and outside of the country.

The Computer Crimes Act provides that any service provider “intentionally supporting or consenting” to posting unlawful content is subject to the same penalty imposed on the poster, which is a maximum imprisonment of five years. Holding internet service providers liable is a particularly pernicious practice that makes third-parties responsible for the content of others, effectively turning them into the enforcers and censors for the government, Human Rights Watch said in a recent statement.

In his May 2011 report to the UN Human Rights Council, United Nations special rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue stated that: “No state should use or force intermediaries to undertake censorship on its behalf.” La Rue added that “Holding intermediaries liable for content disseminated or created by their users severely undermines the enjoyment of the right to freedom of opinion and expression, because it leads to self-protective and over-broad private censorship, often without transparency and the due process of the law.”

Of particular concern are the exceptionally harsh sentences being handed down as well as the trend for judges to deny bail to defendants being held on lèse-majesté charges; some defendants have been held in jail for years on remand. For some however, such as media firebrand and leader of the anti-Thaksin People’s Alliance for Democracy movement Sondhi Limthongkul, bail has been approved.

“Thailand's lèse-majesté laws are being overused and abused,” said John Sifton, Asia advocacy director at Human Rights Watch. “The government’s assault on internet service providers sends a chilling message to webmasters and internet companies that they either censor other people’s content or face severe penalties.”

Ultra-royalists and conservatives fear there is a concerted assault taking place on the monarchy. They see the lèse-majesté law as a pivotal tool to counteract those seeking to destabilize the nation and bring down the power of the royal institution, as well as a powerful and convenient method of not only directly silencing political critics, but also of fostering and entrenching a culture of self-censorship. Many Thais who have, due to decades of state- and self-imposed censorship of the media, only ever heard positive news about the monarchy, are fearful and feel an almost religious duty to defend their king against any alleged aggression or attacks. The emotional zeal of this devotion means the room for rational debate in some sections of Thai society is almost non-existent.

So sensitive is the climate that a recent Thai film rendition of the Shakespeare play Macbeth, which drew on recent political events in its interpretation, was banned by government censors for having “…content that causes divisiveness among the people of the nation.”

The protracted political conflict has divided Thai society and unsettled the country so deeply that many fear the kingdom’s very identity and the concept of “Thainess” are at threat. This is causing great discomfort among conservatives and there has been a worrying prevalence towards the use of xenophobic and fascist rhetoric. Conversely, others say the real issue is that the modern concept of Thainess is manufactured and coerced, and the political crisis is uncovering its many fallacies and that an entrenched elite is seeking to maintain its hegemonic grip on power, which has always been centered around the perceived infallibility of the palace.

A speech made by the King in 2005 is often referred to in the debate on the spiraling number of lèse-majesté cases. In his 2005 birthday address, King Bhumibol stated that he was not above criticism. “Actually, I must also be criticized. I am not afraid if the criticism concerns what I do wrong, because then I know. Because if you say the king cannot be criticized, it means that the king is not human," he said. “If the king can do no wrong, it is akin to looking down upon him because the king is not being treated as a human being. But the king can do wrong.”

But for many Thais, questioning the lèse-majesté law is akin to questioning the status of the monarchy, and therefore the very structure of the nation.

In 2006, the Thai government blocked access to YouTube within the country after discovering more than 20 videos with lèse-majesté content. Access was later restored after Google agreed to block the videos to users in Thailand. And in November last year, the government warned Facebook users that they could be charged under lèse-majesté laws or the controversial Computer Crimes Act for commenting on, sharing, or clicking 'like' on content deemed insulting to the royal family and requested the social networking giant remove over 10,000 pages containing images or text posted from abroad, which it said contravened the country’s laws.

However, the rapid rise in lèse-majesté cases has also precipitated a growing movement in opposition to the law. A number of local Thai groups have emerged, including the Campaign Committee to Amend Article 112 (CCAA 112) which has been pushing for amendments to Article 112 of the Penal Code in line with proposals made by Khana Nitirat, the lawyers group of which the assaulted professor Worachet Pakeerut is a founding member.

The proposed amendments seek to make the punishment for alleged lèse-majesté proportionate to the crime, limit who can file a complaint to the Office of His Majesty's Principal Private Secretary rather than any citizen, differentiate sincere and truthful criticism from threats to the monarchy, and categorize violations of Article 112 as about the honor of the monarchy, rather than national security. In February this year, 224 scholars and activists from around the world, including Naom Chomsky, backed CCAA 112 by signing an open letter to Prime Minister Yingluck calling for the amendments as set out above.

According to the Asian Human Rights Commission, both Khana Nitirat and CCAA 112 have faced growing harassment and threats since January 2012, and the physical assault on Professor Worachet “represents an ominous escalation of the dangers faced by the Khana Nitirat and others promoting critical discussion about the appropriate role and form of Article 112 in present-day Thailand.”

In researching this article, Asia Sentinel found a number of links to articles and websites discussing cases of lèse-majesté blocked by Thailand’s Ministry of Information and Communication Technology. The particular pages did not contain content that contravenes the lèse-majesté law directly, but appear to have been blocked simply due to their discussion of the issue.

Lawyers handling the case against Voice of Taksin editor Somyot Prueksakasemsuk, on trial for lèse-majesté concerning two articles printed in the magazine, this week petitioned the Constitutional Court to rule on the law’s constitutionality. They argue that the maximum sentence of 15 years in jail for acts of lèse-majesté is disproportionate with other defamation laws – which prescribe a maximum sentence of three years – and therefore seeks to place the monarchy “above the constitution”.

The petition stated that Thailand must bring itself in line with international standards, “otherwise [Thailand] will not be accepted among civilized nations, which would be detrimental…to the Thai justice system.” Somyot has been denied bail eight times already and has been held in remand for nearly a year, where his lawyers say he has been harshly treated and is suffering from ill health. His trial is continuing.

“Somyot is innocent until proven guilty and poses no risk to public order. There is simply no reasonable basis to deny him bail so that he can seek treatment… We believe the case for the reform of this law is now unanswerable for the survival of press freedom and democratic pluralism in Thailand,” said International Federation of Journalists President, Jim Boumelha in a recent statement. “Somyot’s detention has laid bare the blatant abuse of the legislation for political purposes and its repeal is overdue.”

Daranee Chanchoengsilpakul aka “Da Torpedo,” sentenced in 2009 to 18 years in prison for lèse-majesté for speeches she made during anti-coup rallies in 2008, challenged the constitutionality of her closed-door trial, but not the constitutionality of the actual law. In that case, the Constitution Court ruled that the closed trial procedure did not limit legal process and access to justice or the essential basic rights of the individual. It said the lower court which tried Daranee had the jurisdiction to decide to hold the trial in secret if it deemed a public trial would affect public decency, public order or national security. Rights groups say this sets a dangerous legal precedent, never mind the apparent gross injustice of being sentenced to 18 years in jail for giving a speech.

In another high-profile case, 61-year-old retired truck driver Ampon Tangnoppakul was sentenced in November 2011 to 20 years in prison for sending four SMS messages to a secretary of then prime minister Abhisit Vejjajiva in 2010 that were considered offensive to the queen and the institution of the monarchy. Tanthawut Taweewarodomkul, webmaster of the banned Nor Por Chor USA, was sentenced to 13 years in prison in March 2011 under the same laws.

According to Amnesty International, throughout the country’s recent political crisis, many of Thailand’s “prisoners of conscience” have been charged under the lèse-majesté law and/or the Computer-related Crimes Act, which has been used as a conduit to bring lèse-majesté charges. Both laws place Thailand in contravention of its international legal obligations regarding freedom of expression, Amnesty said, urging the Thai authorities to either amend the laws so that they meet international norms and standards on freedom of expression, or abolish them.

“People charged under these laws solely for their peaceful political expression should have their charges dropped,” said Benjamin Zawacki, Amnesty International’s Thailand researcher in a recent statement. “Those imprisoned—like prisoners of conscience everywhere—should be released immediately and unconditionally.”

Thailand is a state party to the International Covenant on Civil and Political Rights (ICCPR), which provides for the state’s duty to investigate and prosecute allegations of violations and to protect freedom of expression, Zawacki added.

Thailand’s political crisis has been painted as a battle between the majority, the poor and disenfranchised, seeking to compel an intractable minority elite to relinquish its grip on the country’s wealth and power. But has this just been a battle for power between competing elites all along? Has the country moved forward democratically in any way? Have those people who protested, some of whom lost their lives, received anything for their support of their political leaders?

Where will the country go from here and what are grassroots movements doing to ensure that the freedom and fair representation by a government in their interest become a reality? What hope is there that these years of great upheaval may produce a fairer, more equitable Thailand and better government, more rights and freedoms? Who are the voices of a fairer and just future for Thailand? As it stands, it certainly doesn't look like the politicians, in either camp.

Thailand has many questions and hurdles to overcome if it is to halt this decline. The rising use of lèse-majesté as a tool to stifle dissent offers a dark window into the current state of affairs in Thailand. If the country is able to take on this issue and deal with it in a reasonable manner, this may offer a sign that a corner can be turned. For many though, the future of this country appears fraught with further confrontations and strife, and a slow descent into repression and fear.
Asia Sentinel

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