THAILAND: Freedom of expression under attack
The Asian Legal Resource Centre (ALRC) wishes to bring the crisis of freedom of expression in Thailand to the attention
of the Human Rights Council. This statement is the third on this topic that the ALRC has submitted to the Council since
May 2011. During the seventeenth session of the Council in May 2011, the ALRC highlighted the rise in the legal and
unofficial use of section 112 of the Criminal Code and the 2007 Computer Crimes Act (CCA) to constrict freedom of
expression and intimidate citizens critical of the monarchy (A/HRC/17/NGO/27). In February 2012, the ALRC detailed some
of the threats faced both by those who have expressed critical views of the monarchy, both legal and extralegal, as well
as those who have expressed concern about these threats (A/HRC/19/NGO/55).
The ALRC is again raising the freedom of expression to stress the persistence of the threat present, foreground the
intensification of the dangers to human rights in Thailand broadly, and to acknowledge the continued courageous actions
by citizens to revise or revoke section 112 and the CCA, despite these threats and dangers. As the ALRC has continually
stressed, within the context of the political crisis that began with the 19 September 2006 coup and greatly increased
with the violence of April-May 2010, the protection of fundamental human rights, including freedom of expression, is
essential if there is to be the possibility of successful democratization and widespread access to justice in Thailand.
Section 112 criminalizes criticism of the monarchy and mandates that, “Whoever defames, insults or threatens the King,
Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years." Statistics
provided by the Office of the Judiciary indicate a sharp rise in lese-majesty charges filed since the 19 September 2006
coup, with 33 charges filed in 2005, 30 filed in 2006, 126 filed in 2007, 77 filed in 2008, 164 filed in 2009, and an
extraordinary 478 charges filed in 2010. While statistics released for the first five months of 2011 indicate a
reduction in the number of charges filed, information for the second half of 2011 and 2012 to date has not been made
available publicly. The failure of the Government of Thailand to provide information itself raises many unanswered
questions about the use of the law to diminish space for freedom of expression through the use of secrecy and generating
of uncertainty.
Court judgments in cases of individuals charged and prosecuted under a combination of section 112 and the CCA are
similarly resistant to scrutiny and ready comprehension. Section 14 of the CCA notes that anyone can be jailed for five
years if found to have imported to a computer "false computer data in a manner that it is likely to damage the country's
security or cause a public panic… any computer data related with an offence against the Kingdom's security under the
Criminal Code." As section 112 also is classed as a crime related to national security, it can be powerfully combined
with the CCA to punish dissent, or perceived dissent, carried out via electronic means. Two recent cases, of Mr. Amphon
Tangnoppakul and Ms. Chiranuch Premchaiporn, illustrate the dangers to freedom of expression posed by categorizing
criticism of the monarchy as a crime against national security and the lacunae in the CCA, which makes it a ready
vehicle for enhancing these dangers.
On 8 May 2012, Mr. Amphon Tangnoppakul, a 61-year-old man, was found dead in prison custody. At the time of his death,
Amphon was serving a 20-year sentence received upon being convicted of four violations under section 112 and the CCA on
23 November 2011. Amphon was convicted for allegedly sending four SMS messages defaming the Thai queen and insulting the
honor of the monarchy. In this submission, we concentrate on the legal ambiguities and lacunae in the case that go to
the criminalizing of free speech through the use of section 112 and the CCA in Thailand:
a. Similar to other court decisions in cases of alleged violations under section 112 and the CCA, the judges in this
case had to infer the meaning of the four SMS messages in question (which was imprecise), the alleged intention of the
defendant, and speculate on any potential damage caused to the monarchy and national security. At best, the court’s
interpretation could be described as legally inexact. At worst, it can be described as complete fiction.
b. The court’s logic in finding the four SMS messages in question criminal rested on an argument about the validity of
the information contained within them and on what this might cause readers of the messages to believe. More
specifically, the judgment reads that the messages were
“… the import to a computer system of false computer data, that was defamatory, insulting, and threating to the king,
queen, heir-apparent, and regent. would cause those who saw it to believe that the content of the messages was the
truth, which would damage the nation’s security. As a result, some of the aforementioned actions of the defendant are
likely to damage the honor and reputation of the king, queen, heir-apparent, and regent and to cause them to be insulted
and despised. With an intention to cause the people to dishonor, fail to venerate, and threaten the king, queen,
heir-apparent, and regent.”
Throughout the decision the adjective “likely” is used; in other words, damage was not caused by the SMS messages, but
was probable in the opinion of the court. The ruling was not one that found the defendant guilty beyond doubt, but
rested on a highly uncertain balance of probability.
c. In addition, to interpret under the CCA the sending of a rude SMS message as “the import to a computer system of
false computer data” is to stretch the category of “false computer data” beyond the already broad ambit provided by the
law. Several pages later in the court decision, “false” is elaborated in political, rather than scientific or legal
terms. The judges write that the four SMS messages in question
“… are entirely false because the truth reflected for the people around the country is the king and the queen are full
of compassion. They are concerned for every person in the land and perform their royal duties for the benefit and
happiness of the Thai citizenry.”
While this may be the judges’ opinion of the monarchy, to categorize it as truth is an ideological stance inappropriate
for an ostensibly independent judiciary to take, and does not constitute any form of grounds for conviction under law.
Further, given the increased frequency with which section 112 is being enforced, this statement is difficult to appeal
against, either in law or in public debate, without also risking being charged under the law.
d. Finally, even if the accused in this case had committed the offences as alleged, the 20-year sentence raises
significant concerns about the proportionality of punishment for crimes of defamation in Thailand and speaks manifestly
to an imbalance in the law of Thailand as written and as currently enforced between protecting the sovereign and
protecting the human rights of people residing in the country.
On 30 May 2012, Ms. Chiranuch Premchaiporn, a 44-year-old human rights defender and webmaster of Prachatai, an
independent online news site, was found guilty of one count out of ten alleged charges of violating the CCA. The charges
against her in this case stemmed from her alleged failure to remove comments deemed offensive to the monarchy from the
Prachatai webboard quickly enough. The prosecution alleged that this indicated her support of and consent to the
comments, which constituted a violation under the CCA. She was sentenced to one year in prison and a 30,000 baht fine,
which was reduced to a suspended sentence of eight months and a 20,000 baht fine.
a. In the decision, the judges responded with an assessment of the appropriate length of time. The decision notes that
in nine of the ten comments in question, they were removed within one to eleven days, and that this indicates that
Chiranuch did not intentionally support or consent to them. In the instance of the tenth comment, which remained online
for twenty days before she removed it, however, the court concluded that this duration indicated “implied consent.”
b. Of particular concern to the ALRC was a statement in the ruling that while apparently endorsing freedom of expression
in fact does precisely the opposite by imposing on the public the obligation to self-censor or be subject to criminal
actions:
“The court acknowledges that freedom of expression is a basic right of citizens that is guaranteed and protected in
every Thai Constitution. This is because freedom of thought and expression reflects good governance and the
democratization of a given entity or nation. Criticism from the people, both positive and negative, provides an
opportunity to improve the nation, given entity, and individuals for the better. But when the defendant opened a channel
for the expression of opinions within a computer system, she was the service provider and it was within her control. The
defendant had a duty to review the opinions and information that may have impacted the country’s security as well as the
liberty of others which deserves similar respect. the defendant cannot cite freedom of expression in order to be
released from liability.”
This statement, far from being an endorsement of free expression, is a direct attempt of the Court to disavow the right
to freedom of expression found both in the Constitution of Thailand and in the ICCPR. The role of the Court and the
judiciary in a broad sense should be to aid the development of justice and the rule of law, not aid in its
dismemberment.
The ALRC is concerned that the cases of both Amphon Tangnoppakul and Chiranuch Premchaiporn are both indicative of how
the judiciary in Thailand is marshaling spare evidence to convict persons of offences under political laws, and in so
doing, of its role in eroding institutions and structures that are supposed to guarantee human rights and protect
freedom of expression.
The ALRC also wishes to draw the Council’s attention to the courage of human rights activists, media advocates, and
citizens in Thailand who continue to call for reform of section 112 despite the growing legal and extrajudicial threats
they face. Under the 2007 Constitution, if at least 10,000 citizens sign in support of a proposed amendment to law, then
it must be examined by the parliament. On 28 May 2012, the Campaign Committee for the Amendment of Section 112, a
coalition of human rights and media activists, writers, artists, and citizens, presented 26,968 signatures in support of
an amendment to section 112 limiting its use and reducing the punishment for violations. It is essential that in the
coming months, the 26,968 citizens who signed in support of the draft amendment do not experience harassment or other
repercussions for doing so.
The Asian Legal Resource Centre expresses solidarity with those persons in Thailand working to have laws aimed at
narrowing the freedom of expression revoked or amended, and calls upon the Human Rights Council and also Special
Procedures of the Commissioner for Human Rights to contribute to their efforts by urging the Government of Thailand to
make the necessary changes to protect this fundamental human right. In this regard, the ALRC calls on the Special
Rapporteur on Freedom of Expression to continue to monitor the situation on the ground in Thailand and to request the
government to make an official visit to the country at the nearest possible opportunity to meet with concerned persons
and produce a report with recommendations to the Government of Thailand for legal and institutional changes to the same
end.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general
consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the
Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and
human rights issues at the local and national levels throughout Asia.
ENDS