FACTproposal: Common sense on lèse majesté
May 15, 2012
Twelve lessons from Akong’s death
Public transparency, accountability, freedom of information are protected in Thai law, including some organic law attached to the Thai Constitution. However, in practice, these have simply been ignored at every level of Thai government.
It will therefore come as no surprise that Thai govt and courts make no apology for the death of Amphon Tangnoppakul in custody. Not only do they think their hands are clean, they are too devoid of an active conscience to know the meaning of shame or regret.
If Akong’s death is to mean anything, now is the time for free speech activists to press for ten crucial points in advance of wider initiatives to repeal Article 112 and the Computer Crimes Act.
Thailand is wasting an awful lot of govt resources of manpower and money to investigate specious claims by persons with political agendas.
1) All accusations of lèse majesté must be thoroughly investigated by an independent body composed not only of police but academic experts and the public. This body would most properly answer only to the palace and consider only the precise elements contained in the law: Threaten, insult, defame. If one of these elements is not present, no charges may be brought.
2) No third-party criminal liability for comments or hyperlinks which can be easily modified to suggest ill-intent. It is not our job as citizens to police the Internet for others. That duty properly belongs to police and MICT.
3) Presumption of innocence and right to bail for all accused. This should apply to all accused not just those accused of lèse majesté. If an accused is not a danger to themselves or the community, they must be released on bail pending conclusion of an open trial. If an accused chooses to appeal, bail must be continued.
4) In the event an accused does not have sufficient funds or properties to use as collateral for bail, Thai govt must create a fairness fund specifically for this purpose.
5) Establishment of a right to speedy trial…and appeals.
6) No in camera secret trials. Not only are these anti-democratic and subject to abuses in the absence of public scrutiny but they impugn citizen trust and confidence in the judiciary.
7) All evidence must be made public at the earliest stages by the police and, later, prosecutors and courts. The public has as much a right to judge a crime as do the courts. At present, no citizen knows what’s illegal and what’s not. Publication of the evidence can teach the public. It is nonsense to think it might inflame others to criminal acts.
8) The intent of a lèse majesté accused must be given primary consideration by the police, prosecutors and courts. If the intent was not defined in law—threaten, insult, defame—the accused must go free.
9) It is unfortunate I must repeat this fundamental aspect of democracy here to instruct Thai govt and judges. All convictions must be on the basis of evidence proved beyond all reasonable. doubt.
10) Adjustment of sentencing guidelines for those convicted of lèse majesté to bring them into line with other defamation sentences. Although the minimum sentence under Article 112 is three years, judges still have discretion to greatly reduce this. Days or months would be appropriate sentences for many bona fide convictions.
11) I agree with human rights lawyer Somchai Homlaor that consideration at sentencing should be given to how widely disseminated lèse majesté might be and also the intent of its creators. However, the greatest consideration must go to the amount of actual harm or damage done to the monarchy in each case.
12) It must be allowed that any accused may seek a Royal pardon from the very moment he or she is accused or at any point thereafter whether charged, tried, convicted or imprisoned or not. There must be no further interference from the Corrections Department or Justice Ministry. Every subject has the right to petition for his monarch’s protection.
Not one of these proposals is dangerous, facetious, made in haste or anger, prejudiced for or against any group, or subversive. They are all about creating a just, fair, compassionate society. Isn’t that how we want to see our Thailand?
We have been relying on changing the minds of dinosaur politicians to change the lèse majesté situation in Thailand by reforming or amending the law. We all know these lawmakers are far too fraidy-cat for that. Of course, our ultimate goal must be for abolition of these unjust laws. But for now, we should sidestep the pols.
All the proposals above could be accomplished administratively by changing attitudes, strategy, policy and regulation without requiring any involvement by politicians. They could be put into practice by the end of next week.
Is there somebody brave enough, Buddhist enough, to speak truth to power and change the self-destructive dynamic in which we are trapped?
All of us are responsible for the death of Amphon. Let’s ensure this never happens to anyone else. These changes in policy are the only fitting eulogy for Akong.
FREE ALL POLITICAL PRISONERS NOW!
Freedom Against Censorship Thailand (FACT)