FACTorial: Free speech on trial in Thailand
April 23, 2012
The case against Chiranuch Premchaiporn
Now that the court has recessed to consider a verdict in the criminal case against Chiranuch Premchaiporn, the rest of us need to take pause and thoroughly examine the facts of a prosecution which could cost this journalist 20 years in prison.
The rule of law was suspended under Emergency Decree from April 10, 2011 to December 22, 2010. Under the emergency powers of martial law, Prachatai was the first of more than 850,000 pages to date to fall victim to censorship by the military agencies CRES and CAPO.
When Prachatai moved seamlessly to new URLs whenever it was blocked, Thai government dragged up the demon of lèse majesté to trump up charges against the news site’s webmaster, Chiranuch Premchaiporn.
The facts of Chiranuch’s prosecution are simple.
1) Ten comments appeared on the Prachatai web forum following the 2006 military coup d’etat, dating from August 14 to November 3, 2008. The precise legal definition of lèse majesté in Thailand is that statements must “threaten or insult” the Royals.
Although the comments may (or may not) have referred to the Royals obliquely using coded language as the Crown alleges, none threatened or insulted the monarchy. That means, from the outset, the comments were not illegal.
Referring to Thailand’s King as “the blind father” and the Queen as “Blue Mama” hardly seems insulting…even on the schoolyard!
However, this word, “illegal”, so crucial to the substance of actual criminality, was never heard during Chiranuch’s trial. Her prosecution, rather, was based on comments which were alleged to be “inappropriate”. These are very different concepts and the latter expression does not serve the complexity and precision which any genuine rule of law requires.
2) Prachatai expended great effort in removing potentially illegal postings. In addition to proactively deleting suspect posts, Chiranuch also fully cooperated with Thailand’s ICT ministry when notified of offending comments.
In the case of these ten posts, Prachatai’s webmaster was simply not asked for her cooperation.
3) The ten postings were not only overlooked by Prachatai moderators, they appear to have been missed by MICT’s censors.
One of these comments remained available on Prachatai’s webboard for 20 days.
However, even Prachatai’s tens of thousands of registered users didn’t see them as they were posted in obscure topics or those which went inactive after a ten day period.
So…if no one read them, where is the danger to society, or the monarchy?
4) All posters were registered, validated members of Prachatai’s web forum. All the posts were identified by IP address leading to personal identification by police of each of the users who actually wrote the comments alleged to be lèse majesté.
However, police only chose to prosecute a single Prachatai poster for a single comment. And she was acquitted at trial.
5) The repetition of lèse majesté has been defined in Thai courts to be itself lèse majesté. The Computer Crimes Act 2007 under which Chiranuch is charged was drafted by MICT and passed into law by the military-appointed legislature following the 2006 coup along with a slew of repressive, unconstitutional and antidemocratic laws.
However, Thailand’s computer law, while broad and including provisions for Internet censorship, does not include any sanctions for criminal liability of third parties or intermediaries.
Thus, the verdict rests largely on the issue of due diligence by the court in truly upholding the rule of law, a duty of care Prachatai has amply demonstrated with more than a million posted comments. However, several police witnesses called by the prosecution to prove the charges against Chiranuch have stated that even the momentary appearance of illegal content results in criminal liability.
This is simply not common sense. We netizens cannot be expected to police the Internet. If police and ICT censors discover illegal content, all they need to do is ask webmasters and ISPs for its removal. All will comply…or face the legal consequences.
Even webmasters need to sleep sometimes or even take vacations.
We believe that the real reason for this spurious prosecution of Chiranuch has only one goal in mind. Thai government will do anything, including gaoling a courageous and decorated journalist, to permanently shut down Prachatai, Thailand’s only independent media voice.
So far, there have been four criminal prosecutions based on third-party liability. Chiranuch Premchaiporn was the first.
Tantawut Taweewaroudomkul, a website designer, was charged under both the CCA and the criminal code’s Article 112 for content he did not post. In fact, the police testified the accused did not have admin access to post or a password for the website. Police never investigated the IP addresses from which the alleged comments had been posted. Tantawut, a single father, was held without bail from his April 1, 2010 arrest until his conviction March 15, 2011. He is serving a 13 year prison sentence.
Redshirt magazine editor and labour activist Somyot Prueksakasemsuk has been charged using Article 112 for two satirical articles published pseudonymously in the February and March 2010 issues of Voice of Taksin. Somyot was held for a statutory 84 days before being charged. He has been denied bail since his arrest on April 30, 2011. The judge has expressed the court’s intention to hold a secret, in camera trial not open to the public or press. Article 112 carries a maximum penalty, often employed, of 15 years. Somyot’s two charges carry 20 years.
Lastly, Joe Gordon, a Thai-born American, was charged with lèse majesté using the Computer Crimes Act and “inciting public unrest” on May 24, 2011. Joe allegedly hyperlinked to four chapters of the banned biography of King Bhumibol, The King Never Smiles by Paul Handley from his weblog four years ago. When he got to court, however, he was accused of being not only the book’s Thai translator but also being the Redshirt USA webmaster, a “crime” for which Tantawut had already been convicted and sentenced. He also was held without bail, plead guilty and received a six year sentence, halved for his guilty plea.
Thai government uses lèse majesté as a “national security” offence causing “public panic”. This is utter nonsense. However, there are at least 493 ongoing lèse majesté prosecutions to date and 789 since 2000.
The current criminal practice of denying bail to those accused of lèse majesté due to “national security” concerns makes a mockery of any democratic pretensions to innocence. It is clearly impossible for an arrestee to prepare an effective defence while subject to the pressures of being locked in shackles while living with those convicted to crimes of heinous violence.
Such injustices are never reported by Thai media, only on Prachatai. This is precisely why Thai govt wants to shut them up!
Thai government has recently announced the reopening of the police “special” prison in Laksi district. Until this facility was closed in 2009, it housed many so-called “high value” prisoners sentenced for political or national security crimes. Fatcat bigwigs who were not smart enough not to get caught at corruption, those who needed to be taught a lesson by those in power or those who took the fall for even fatter cats with bigger wigs.
Thai government announced the prison will be used to house 300 prisoners charged with “national security” offences, “political cases” and foreigners. It only remains to see who its first inmate will be.
Thailand once objected to a British dictionary definition of “Bangkok” as “a city of many prostitutes”. It seems government might prefer to be known as a country of political prisoners.
The learned court could use its intelligence and experience to see Chiranuch’s prosecution as a simple red herring by a government testing just how far it can go in denying civil liberties, how much it can get away with in denying human rights to free expression.
There has been unprecedented international interest in Chiranuch’s trial. Observers have included representatives from eleven foreign embassies, international free media and freedom of expression NGOs and a broad selection of the foreign press.
Former Reuters correspondent, Andrew MacGregor Marshall: “It is no longer acceptable to tell Thailand’s people that they are not allowed a say in their own future, and that discussing issues of pressing concern to the whole nation is some kind of crime that must be forbidden. If that continues, it will force the unavoidable conclusion that the palace is an enemy of the people, and of democracy. It will destroy the monarchy.”
There are nearly 500 Thais being prosecuted today for lèse majesté. Thai courts have extended these dangerous criminals a 98% conviction rate. Will Chiranuch’s judge show some courage and acquit her?
If the court extends the parameters of the computer law to include prosecution of third parties, no one using the Internet in Thailand willbe safe. First, they’ll come for me in the middle of the night. Next, they’ll come for you.
WE LOVE JIEW! WE LOVE PRACHATAI!
Freedom Against Censorship Thailand (FACT)