Any chance for lèse majesté reform?-Bangkok Pundit

March 25, 2012

Thailand: What are the chances for lese majeste reform now?

Bangkok Pundit: March 21, 2012

http://asiancorrespondent.com/78572/what-chance-for-lese-majeste-reform-now/

 

LA Times:

The law fails to “separate reasonable and truthful comment from insulting and threatening … the monarchy,” said Puangthong Pawakapan, a professor of politics at Chulalongkorn University who favors reform.

With an increasingly polarized electorate, an aging king, a weak government, a conservative judiciary and a divided legislature, few analysts see much chance of the law changing soon. Even Thais advocating reform, including Puangthong, say a majority of the public probably wouldn’t support new rules.

I’m rather negative about the prospect for reform in the near term,” said Bridget Welsh, a political science professor at Singapore Management University. “Change in Thailand has tended to come after a crisis rather than more incremental. It’s going to take someone who’s bold or has the political space for reform, and I don’t see that now.”

Royalists’ big fear is that Thaksin and his supporters will become too powerful after the transition, undermining the royalists’ position, said Thongchai Winichakul, a professor of Southeast Asian history at the University of Wisconsin at Madison, speaking recently at Thailand’s Foreign Correspondents Club.

Royalists such as Tul Sitthisomwong believe many Thaksin supporters who favor the law’s reform want to eliminate the monarchy altogether.

For activist Surachai, a former communist guerrilla, it’s time for Thailand to modernize and join the ranks of constitutional monarchies that have watered down or all but eliminated their lese-majeste laws.

“We just want the law updated,” he said, dressed in a dark red prison jumpsuit, “so it is more like countries such as Denmark, Netherlands, Sweden.”

The Independent:

When Prime Minister Yingluck was elected last sumer, she vowed her government would review the lese majeste law. That has not happened, apparently because of street protests and lingering fear that the government could be ousted, either by a formal coup as in 2006, or forced out amid a “constitutional crisis”. A government advisor told The Independent that for now they had decided to leave the issue alone.

Though not a mirror image, the battle over lese majeste retraces some of the political conflicts between so-called yellow shirts and red shirts that have rocked Thai society in recent years. Duncan McCargo, a professor of South-east Asian politics at the University of Leeds, said: “Though in many ways extremely important, the lese majeste controversy has also become a proxy struggle between different competing power groups in Thailand, and Yingluck has clearly concluded that she has other priorities.”

BP: In recent months, the Yingluck government has made it clear that lese majeste will not be amended. Yingluck states she will focus on the economy and rehabilitating the country after the floods (her standard answer). Before the election and even recently, Thaksin has referred to problems with the excessive use of lese majeste, but he has not indicated any reform. It appears as part of some deal/arrangement with the establishment that there will be NO reform of lese majeste in the near future.  The government is only focusing on enforcement of the law – and it seems we may get another committee to review lese majeste cases – but as we saw under Abhisit there was also a committee, but we still had a record number of cases. So focusing on enforcement may not mean much.

While there are changing attitudes towards lese majeste in Thailand, changing the law would be politically difficult and could reignite protests. Thitinan in January in the Bangkok Post:

After the floods, a stalemate on the one hand and a pause on the other, which can appear as a tentative accommodation, have taken hold. The government of Prime Minister Yingluck Shinawatra upholds the sanctity of the monarchy with repression and crackdown on dissent and freedom of fair expression.

Unsurprisingly, Article 1[1]2 of the Criminal Code, otherwise known as the Lese Majeste Law, and its related Computer Crimes Act have been enforced with growing frequency.

In return, the government gets to rule without debilitating street protests and coup threats.

Neither side is able to come up with a more decisive move. The government does not have the wherewithal to amend these laws. Nor can establishment forces muster enough strength to go through more rounds of party dissolutions and changes of government, let alone a military coup.

In this environment of stalemate, various interest and advocacy groups will clamour to air their grievances and get their way.

Then, Thitinan again in early February in the Bangkok Post:

The Nitirat campaign to amend Article 112 of the Criminal Code, commonly known as the lese majeste law, has generated a political tempest.

It has struck a consonant chord as much as it has riled apprehensive nerves of reformers and conservatives on both sides of the political fault line centring on the monarchy’s role in Thai democracy.

The thrust of the reform proposals by the Nitirat group, which comprises seven Thammasat University law lecturers, is designed for establishment centres to still prevail as Thai democracy will continue to mature. For example, one of the proposals is to shift the burden between the accused and the aggrieved. If Article 112 is deemed to have been violated, the prosecutorial burden would fall on the Office of His Majesty’s Principal Private Secretary to lay the charge, thereby preventing the longstanding practice of anyone pressing charges against anyone.

Another is to eliminate the minimum jail sentence to make punishment more fitting to the crime. Among Nitirat’s clutch of reform proposals, none advocates the elimination of Article 112.

These are not reasonable times in Thailand’s climate of fear. This country is in a prolonged bad mood. Nitirat has made its point and should now take a step back. Time is needed for Thai society to digest, dissect and distil its broader collective future in a bid to reconcile monarchy with democracy.

Then this quote in AFP:

Thitinan said some of Nitirat’s suggestions, such as making a future king swear an oath to protect the constitution, were “unpalatable to Thai society” — but added other recommendations including ending the practice whereby anyone can denounce anyone else were “very sensible.”

BP: Another topic that BP didn’t get time to blog about last month, but essentially BP thinks Nitirat politically overplayed their hand particularly with the suggestion about the oath. This is not to say that BP believes the criticism of Nitirat and that the proposal was “outrageous, insulting and stupid suggestion…[and] that they] have gone beyond the acceptable“ – see Prach’s post here for what Nitirat actually proposed and also the fact that such oaths are commonplace in monarchies elsewhere in the world, but BP thinks it was politically naïve and actually hurt Nitirat’s position to influence the debate. As Thitinan notes, their lese majeste reform proposal – see this post here for full details of their proposal – was quite mild as they were only pushing for reform and not elimination (some can’t support the proposal as the reform doesn’t go far enough). This made their proposal more palatable and such a reform would likely provoke a strong reaction from the establishment, but BP is unsure whether it would be politically unpopular on its merits (having said that, many people would prefer a focus on the economy and given any reform would kick up a fuss which would lead to a majority not wanting to proceed with the reform as they don’t want chaos and street protests – although on the actual merits on the reform, they may agree).

The reason BP thinks it was politically naïve was because those in the establishment were arguing was that the agenda was not just lese majeste reform, but a plan to reduce the status of the monarchy or eliminate it. The proposal for an oath could arguably be included in to reduce the status of the monarchy and hence much of the criticism was directed at this and not the actual lese majeste reform. Essentially, the royalists were saying  ”we don’t want to start down this slippery scope of lese majeste reform as look what Nitirat wants ahead”. Let’s be honest, would an oath mean anything practically? Symbolically, it would, but not practically. Actually, it seems Nitirat heeded this message of stepping back and became publicly quieter in February until some thugs  recently assaulted one of the main Nitirat leaders – which coincidentally has resulted in public sympathy for Nitirat which will help with their ability to influence the agenda.

BP has go to back to the post last July on the chances of reform:

1. If BP’s memory serves BP correctly, the last time that lese majeste law was amended was in the 1970s by a military/military-installed government so don’t expect any amendments immediately because to do so will just invoke Thaksin-wants-to-overthrow-the-monarchy-argument.

2. Yingluck’s answer is quite vague and BP is not surprised that she will hand it over to a committee to deal with (that is how BP interprets “someone specialized to discuss”) and this seems roughly in line for the process that Tida wants.  Will this be a parliamentary committee, the job of the new committee, the National Human Rights Commission, or will the Kanit committee be tasked with looking into this too?

3. So you can see an outline, as with the amnesty issue, it will be the economy first and so you have 6-12 months before the committee reports back with options. One possible problem for this process is if someone is arrested/multiple people are arrested under lese majeste law or Computer Crimes Act in the meantime, how will Yingluck and the government respond? What if someone previously arrested in a high-profile case* goes on trial?

BP: The NHRC is studying lese majeste reform as mentioned in a post a few months back:

BP imagines the task force will send its recommendation to the NHRC who will then forward it on so it may take a couple of weeks beyond June 16 , but if this committee comes to a similar conclusion, the government will have significant political cover to amend the lese majeste law in line with the TRCT’s recommendation – the Lord Chamberlain would need to be willing as well. It is important to note that the Kanit committee was set up by the Abhisit government and the NHRC was not appointed by a Thaksin-aligned government. The reality is – given the accusations that the reds and Thaksin want to overthrow the monarchy – that no amendment to the law can happen without such political cover.

The Computer Crimes Act needs to be amended as well otherwise it can just be used instead (i.e if amend 112 and need Lord Chamberlain’s permission, but if no such permission is needed for prosecutions under Computer Crimes Act then well not much will have changed given must lese majeste content is in regards to speech online which can be offence against Section 112 and the Computer Crimes Act).  Given the changing attitudes about lese majestelaw particularly by royalists, such amendments would not longer be considered outside the mainstream (yes, Prayuth won’t like it). Failure by the government to act in 2012, after the NHRC report comes out and assuming it is similar to the TRCT recommendations, would mean that Puea Thai (and the reds if they also don’t get behind such amendments) are all talk on freedom of speech and little action. Will 2012 be the year of change? Or just mere rhetoric?

BP: Fortunately, for the government, the NHRC later said they will need the rest of the year to review the issue so the government has some leeway. However, once the report comes out, BP is very skeptical there will be any reform although the pressure for reform would start building unless there is a major change in the enforcement of the law. BP doesn’t imagine street protests, but within a group of progressive voters (i.e Matichon readers), they will be upset. While we are talking about small numbers, they will matter during an election. They are unlikely to vote Democrat, but they may vote for someone else or not vote. This is a problem for the future for Puea Thai, but it will become a problem.

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