pl journal of media law

* Professor of Public Law, London Metropolitan University. I would like to thank Professor Andrew Harding,Surutchada Chullapram and Professor Conor Gearty for their very helpful comments on an earlier draft ofthis paper. I would also like to thank Anna Razeen for her assistance in researching this article.

1 Lord Steyn in Sims v Secretary of State for the Home Department [2000] 2 AC 115, 126. 2 C Gearty, Civil Liberties (Oxford University Press, 2007) 122ff.

115

(2010) 2(1) Journal of Media Law 115–137

The Struggle for Freedom of Expression

in Thailand: Media Moguls, the King,

Citizen Politics and the Law

Peter Leyland*

INTRODUCTION

Many would argue that in any democratic system freedom of expression becomes aprimary right. Indeed, this right has been called ‘the very life-blood of democracy’.1 Thisarticle explores the concept of free speech in relation to the constitutional situation inThailand. Recent constitution-making in Thailand has sought to establish democraticvalues in a Thai cultural context. In seeking to modernise its constitutional and politicalsystem, Thailand has faced the challenge of defining a general right to free expressionwhile preserving respect for its revered King. It has also been necessary to introduce stateregulation to limit the domination of mass communications by rich and powerfulindividuals. Some reference will be made to the constitutional provisions and related lawsthat set out these freedoms, but we will see that the manipulation of aspects of these lawsto promote political ends has become a part of recent Thai experience. On the one hand,under the 1997 Constitution Prime Minister Thaksin Shinawatra was able to use hiswealth combined with political power to dominate the principal media outlets oftelevision broadcasting, the press and telecommunications. On the other hand, since themilitary coup in 2006 forces claiming loyalty to the King have increasingly invoked thelèse-majesté law to silence opposition and to suppress political debate.

Certainly from a constitutional standpoint free speech can be regarded as a principleof fundamental importance which can be defended on a number of familiar grounds.2 In

3 E Barendt, Freedom of Speech (Oxford University Press, 2007) 156. 4 Truth is defined here as embodying an autonomous and fundamental good.5 Barendt (n 3) 11. 6 Schauer, quoted in Barendt (n 3) 21. 7 Freedom of speech is often regarded as a liberty against the state or a negative freedom, and the protection

of free speech may be relevant in ensuring the protection of minority rights.

116 Journal of Media Law

the first place, the freedom to express and exchange ideas can be regarded as theprerequisite for any form of participatory democracy. Indeed, there is a particularly strongreason for the special protection of political speech under any constitutional system:‘Political speech is immune from restrictions because it is a dialogue between membersof the electorate and between governors and governed, and is, therefore, conducive, ratherthan inimical, to the operation of a constitutional democracy.’3 In a rather different sense,placing restrictions on open debate will prevent the discovery and publication of accuratefacts and valuable opinion. While it might be contested whether free speech will lead totruth,4 it can be maintained that ‘better decisions will emerge from uninhibited discussionthan from a process regulated by the state’.5 As one commentator explains: ‘Freedom ofspeech is based in large part on a distrust of the ability of government to make thenecessary distinctions, a distrust of governmental determinations of truth and falsity, anappreciation of the fallibility of political leaders, and a somewhat deeper distrust ofgovernmental power in a more general sense.’6 It may be concluded, then, that it is wrongfor those that govern to decide whether citizens have access to ideas. However, the problemis that freedom of speech is never applied as an absolute concept. Rather, the prohibitionof hate speech, control of pornography, regulation of advertising, restrictions in relationto national security etc are frequently justified in the public interest. In fact the breadthof this freedom of expression becomes a pivotal issue for any constitution. On the otherhand, there is overwhelming justification for ensuring that verbal or printed attacks onthe government should generally be immune from regulation. Indeed, whether a nationqualifies for designation as a liberal democracy might be determined, in part at least, byfirst observing the extent to which criticism can be made by employing the normalchannels of press, television, radio and internet; second, by considering the scope of thelaws which might be used to prevent legitimate criticism of the government; and third,by assessing the degree of independence of the prosecuting authorities and/or judicialsystem in dealing with cases suppressing expression that have a strong political dimensionto them.

The issue of free speech will be addressed at two levels. In the first part of the articlewe consider the formal position under Thailand’s 1997 and 2007 Constitutions byevaluating the measures directed at safeguarding freedom of expression, and, in particular,the laws introduced to regulate broadcasting and the press and to provide public interestbroadcasting.7 The remainder of the discussion addresses the Thai-specific dimension

8 V Muntabhorn, ‘Human Rights in the Era of “Thailand Inc”’ in R Peerenboom, C Petersen and A Chen(eds), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA(Routledge, 2006) 321.

9 Constitution of the Kingdom of Thailand 2007, Art 45: ‘A person shall enjoy the liberty to express his or heropinion, make speeches, write, print, publicize, and make expression by other means. The restriction onliberty under paragraph one shall not be imposed except by virtue of the provisions of law specificallyenacted for the purpose of maintaining the security of the State, safeguarding the rights, liberties, dignity,reputation, family or privacy rights of other persons, maintaining public order or good morals or preventingthe deterioration of the mind or health of the public.’

10 See eg A Harding, ‘Emergency Powers with a Moustache: Special Powers, Military Rule and EvolvingConstitutionalism in Thailand’ in V Ramraj and A Thiruvengadam (eds), Emergency Powers in Asia(Cambridge University Press, 2009).

The Struggle for Freedom of Expression in Thailand 117

by concentrating on the controversial lèse-majesté law. While this law was conceived toprotect the monarchy by restricting adverse comment aimed at royal personages, it hasrepeatedly been used much more widely to stifle criticism and, in turn, it will be arguedthat this calls into question whether it can remain in its current form under a ‘democratic’constitution.

HUMAN RIGHTS AND FREEDOM OF EXPRESSION IN THAILAND

Since the death of Rama V in 1908 there has been a continuous struggle for democracyand human rights in Thailand. Absolute monarchy ended officially in 1932, but the degreeto which there has been a ‘real social contract leading to popular participation ingovernment’8 has been a matter of ongoing concern. This has been particularly true since1932, but it is highly significant that a heavy emphasis was placed on the protection ofrights in the 1997 and 2007 Constitutions. In both texts constitutional guarantees havebeen supported by ostensibly strong checks and balances. The problem has been that theentire constitutional and political system has been repeatedly undermined by vestedinterests which often conflict with one another.

Freedom of expression is set out as a fundamental constitutional right,9 meaningthat, in theory, Thai citizens have their freedom of expression guaranteed under theConstitution. There is nothing exceptional in finding that the constitutional definitionrefers to legal provisions that might qualify freedom of expression. Article 45 proceeds toset out predictable reasons why there might be restrictions on this freedom. These areidentified as: ‘security of the State10, safeguarding the rights, liberties, dignity, reputation,family or privacy rights of other persons, maintaining public order or good morals orpreventing the deterioration of the mind or health of the public’. As already noted,freedom of speech is always a relative concept which is hedged with constitutional and/orlegal exceptions of one kind or another. In having exceptions Thailand’s Constitution is

11 For example, the 1941 Act was invoked following the publication of an article in the Far Eastern EconomicReview in January 2002. The two journalists who wrote the article had their visas cancelled as a result. ‘ThaiPress Freedom Threatened’, Human Rights Watch, 1 March 2002.

12 See A Harding, ‘Buddhism, Human Rights and Constitutional Reform in Thailand’ (2007) 2(1) Asian Journalof Comparative Law 18; P Leyland, ‘Thailand’s Constitutional Watchdogs: Dobermans, Bloodhounds orLapdogs?’ (2007) 2(2) Journal of Comparative Law 162.

13 Italy is another nation where conflicts of interest have arisen between the personal media interests of thePrime Minister and state broadcasting. See eg G Gardini, ‘Broadcasting, the Free Market and the PublicInterest: Is the Italian Path to Pluralism Viable?’ (2007) 13(2) European Public Law 239, 250–4.


no different from other constitutions. However, in Thailand the Press Act 1941, whichgranted the authorities wide powers of censorship, remained on the statute book until2007 and this legislation was used by government to muzzle criticism.11 It has now beenreplaced by the Press Registration Act 2007, which is intended to prevent the authoritiesfrom censoring or closing down newspapers. The Act also reduces the liability of editorsand publishers for defamation, which is a criminal offence in Thailand. However, the Actmakes no difference to the blanket application of the lèse-majesté law discussed later. Aswe will observe shortly, not only must the lèse-majesté law be added to these exceptions,in addition, recent sweeping restrictions have been introduced in relation to internetusage. The issue becomes whether the rights afforded to citizens are, in practice, protected,and whether the exceptions are so far-reaching as to undermine the fundamentalconstitutional guarantees. Thailand is a signatory to both the United Nations UniversalDeclaration of Human Rights 1948 and the binding International Convention on Civiland Political Rights 1976, which under Article 19 guarantees citizens’ right to free speech.Despite having its own internal human rights constitutional watchdog since 1997,12 whichwas designed to police this area, some Thai laws and practices of the authorities in relationto free speech have almost certainly been in breach of these international obligations. Theremainder of this article concentrates on discussing control and regulation of the mediaand the lèse-majesté law. It will be apparent that in the context of Thailand’s recentconstitutional experience these two areas in particular have posed a serious threat tofreedom of expression.

MEDIA REGULATION AND CONFLICT OF INTEREST IN THAILAND

Under a constitution which purports to be based on democracy, the capacity of the mediato act as a check on the democratic process is clearly very important. Recent experiencein Thailand draws attention to potential problems if the independence of the broadcastingmedia is undermined.13 It has been pointed out that in any liberal democracy thecorruption of information—through the overwhelming control of the media, especially

14 M Jacques, ‘The Most Dangerous Man in Europe’ The Guardian, 5 April 2006. 15 D Youngsamart and G Fisher, ‘Governance and Administration in a “New” Democracy: The Case of Formal

Control of Free-to-Air Television in Thailand (1997–2007)’ (2006) 1 Journal of Administration andGovernance 36, 40.

16 See Dr Supong Limtanakool writing in the Bangkok Post on 4 January 2006.17 Art 47 para 2: ‘There shall be an independent regulatory body having the duty to distribute the frequencies

under paragraph one and supervise radio or television broadcasting and telecommunication business asprovided by law.’

18 TC 2007 s 48: ‘A person holding a political position is not permitted to be an owner or [holder of] sharesin newspaper, radio or television broadcasting, and telecommunication businesses, no matter under his orher own name, letting others hold its ownership or share or by other methods, directly or indirectly, [giving]him or her the control of the operations as the owner or shareholder of that business.’

19 See D McCargo and U Pathmanand, The Thaksinization of Thailand (NiAS Press, 2005) 127ff.


television, both private and state—is a pre-condition for the debasement of the entiresystem.14 State institutions operating under any constitution will not be able to withstandthe conflicts of interest that arise if politicians are elected with substantial media interestswhich are allowed to remain in their hands. ‘Until 1997 there was no constitutionallyguaranteed freedom to communicate in radio and television broadcasting mentioned inany constitutions.’15 The 1997 Constitution sought to address this issue, but sections 39–41 had no force in a situation where the official opposition was denied an adequatemouthpiece for its criticism between 2001 and 2006 through the domination ofbroadcasting media by the Thaksin government. One commentator explained the threevery distinct methods of censorship and control that are most widely used in Thailand:(1) Most obviously there is outright purchase of the media outlet. Direct control is thenutilised to block out any negative news coverage of the people in power. (2) Partial controlcan be achieved by recruiting major shareholders of that particular media outlet to jointhe government, thus making sure that there is no press coverage from anti-governmentor opposition parties. (3) Finally, ‘leverage control’ can be exercised by not grantingadvertising budgets to anti-government media outlets.16 It is useful to keep theseconsiderations in mind as we review recent moves to re-regulate and re-organise mediaownership and control in Thailand.

The 2007 Constitution has outlined the requirement for a single independentregulatory agency which is responsible for distributing broadcasting frequencies and forsupervising television and radio and the telecommunications industry.17 Further, as aresponse to practice under the 1997 Constitution, the revised 2007 Constitution expresslyprevents mergers and cross ownership, and it prohibits politicians from owning orholding shares in any newspaper, radio, television or telecommunications business.18

Serious problems relating to conflict of interest remain. It should be remembered that inThailand senior figures in the armed forces remain major players behind the scenes inThai politics. At the same time the military are in control of a substantial part of themedia.19 Recent legislation has been passed to modify regulation, but the ownership rights

20 ‘SEAPA Report: Can New Thai PM Achieve Genuine Media Reform?’, 21 January 2009, www.cijmalaysia.org/content/view/419/9 (accessed 15 August 2009).

21 Its full title is Operation of Radio and Television Broadcasting Business Act 2008, but it will hereinafter bereferred to as the Business Broadcasting Act 2008.

22 http://thailand.prd.go.th/view_inside.php?id=3284 (accessed 14 August 2009). Radio licences last up to7 years and television licences up to 15 years.

23 See s 78 Business Broadcasting Act 2008. 24 ‘NBTC Edges a Step Closer to Formation’ The Nation, 25 March 2010. 25 ‘NTC Hopes to Avoid more Dual-Candidate Snafus’ The Nation, 21 March 2009. One dispute concerned

preventing a repeat of candidate names appearing on the list for the NTC and the NBTC in the new selectionprocess.

26 See Leyland (n 12) 169. 27 See Thai Public Broadcasting of Sound and Pictures Organization Act 2551 (2008); A Sennitt, ‘Thai Public

Broadcasting Service to Focus on Prime Time News, Education Programmes’ Media Network, 20 January2008.

28 See S Nance, ‘Thailand’s iTV takes one on the Shin’ Asia Times, 14 January 2007.


of the Royal Thai Army, the government Public Relations Department and other stateagencies continued to be recognised under a new Broadcasting Act 2008. For example, theMass Communication Organization of Thailand (MCOT) operates television stations(ModernNine, MCOT 1-2, News 24) and 62 radio stations. Channel 5 is run by the RoyalThai Army. At the same time the new legislation introduces a potentially more openstructure with the recognition of three categories: public, commercial and communityservice, with all broadcasting requiring a licence.20

The Business Broadcasting Act 200821 seeks to introduce a robust framework ofstatutory regulation by granting wide-ranging licensing powers to a public regulatoryauthority relating to all forms of radio and television.22 Pending the establishment of anew National Broadcasting and Telecommunications Commission (NBTC), these powershave been exercised by the National Telecommunications Commission.23 It remains to beseen whether this new body will prove to be an effective independent regulator.24 Theselection process for the NBTC conducted by the Thai Senate has already proved to becontroversial for its failure to provide a sufficiently wide list of names.25 The experiencewith selecting other watchdog bodies in Thailand suggests that any failure to appointcreditable candidates able to resist government interference is likely to undermine theauthority of the new body.26

The establishment of the Thai Public Broadcasting Service (TPBS) as an independentstate broadcasting organ is another very significant development.27 The previous publicbroadcasting channel, iTV, was taken over by the Shin Corporation when this companywas owned by former Prime Minister Thaksin Shinawatra. Then, the Shin Corporationwas itself sold to Temasek Holdings of Singapore in 2005.28 The broadcaster, which wassaddled with huge debts, ceased to function following a court ruling in 2007. The ThaiPublic Service Broadcasting Service has to some extent been modelled on the BBC toprovide a protected element of state broadcasting. It was set up by statute and it operates

29 See S Nitsmer, ‘Public Service Broadcasting in Thailand’ 18th JAMCO Online International Symposium,16 January–28 February 2009, www.jamco.or.jp/2009_symposium/en/003/index.html; ‘SEAPA Report: CanNew Thai PM Achieve Genuine Media Reform?’ Southeast Asian Press Alliance, 22 January 2009.

30 TC 2007, Art 267. 31 Constitutional Court Case 12-13/2551, and see A Harding and P Leyland, ‘The Constitutional Court of

Thailand and Indonesia: Two Case Studies from South East Asia’ (1998) 3(2) Journal of Comparative Law118, 133; ‘PM Disqualified for Violating Charter with Cookery Show’ The Nation, 10 September 2008.

32 Emergency Situation Decree of 11/04/52 (11/04/09). 33 Sinfah Tunsarawuth, ‘Thailand: Government Moves to Suppress Media’ Human Rights House, 24 April 2009,

http://humanrightshouse.org/noop/page.php?p=Articles/10677&d=1 (last visited 14 August 2009); ‘NewTV Station May Replace D Station’ The Nation, 1 May 2009.


under a charter. Moreover, a substantial proportion of its programme content relatesparticularly to news and current affairs. In fact, it is designed to be truly independent ofgovernment, as it is funded not by a licence fee, but by a tax on alcohol. It has beensuggested that TPBS could also serve as a model for National Broadcasting Television(formerly Channel 11).29 This state broadcasting organisation (TPBS) requires fullprotection under the Constitution to ensure that it is at arm’s length from interference.Broadcasters more generally should have a mandate to report news and current affairsfrom both government and opposition viewpoints. Further, strict rules governing thecoverage of elections must be applied impartially to ensure that all recognised partiesreceive fair coverage. Looking to the future, it remains crucially important thatconstitutional provisions and statutory rules designed to safeguard the public interestand at the same time prevent the domination of the broadcasting media by monopolyinterests are enforced decisively.

Indeed, the effectiveness of media and broadcasting regulation has already been amatter of concern under the current 2007 Thai Constitution. Initially, there wereindications that constitutional norms under the latest Constitution were being rigidlyapplied. Most prominently, the Thai Constitutional Court ruled in September 2008 thatPrime Minister Samak had violated the conflict of interest provisions30 by being paid forhis appearance on a cookery show and that in consequence he must step down from thepremiership.31 Persistent protest by Yellow Shirt supporters culminating in the occupationof Bangkok’s international airport prompted a change of administration. The threat tofreedom of expression remains acute since it appears that executive powers have beenused by the Democrat government, which took office in December 2008, to silence themain opposition. In response to demonstrations by Red Shirt protestors, an EmergencyDecree was used in April 2009 by the Abhisit government to shut down the D-Stationtelevision channel32 and at least three local radio stations in the north and northeast ofthe country. This action was taken on the grounds that they had been used as amouthpiece for the Red Shirt movement loyal to former Prime Minister Thaksin and tostir up unrest.33

34 See eg M Connors, Democracy and National Identity in Thailand (NIAS Press, 2007) 93ff. 35 D Wyatt, Thailand: A Short History (Yale University Press, 2nd edn 2003) 130.36 Peasants obstructing a vehicle delivering a petition to the King were sentenced to 43 days in prison. See

P Handley, The King Never Smiles (Yale University Press, 2006) 134.37 See Provisions 7, 12 and 43 of the Three Seals Code. 38 The modern lèse-majesté laws can be traced back to the Code Michaud 1629 introduced in France under

Cardinal Richelieu to proscribe defamatory libels directed at the monarch. Despite many differences,Streckfuss notes that this law has been used in both nations by elites to protect their interests. SeeD Streckfuss, ‘Kings in the Age of Nations: The Paradox of Lèse-majesté as Political Crime in Thailand’(1995) 37(3) Comparative Studies in Society and History 445, 447–8.


FREEDOM OF SPEECH AND CONSTITUTIONAL MONARCHY

Up to this point the discussion of freedom of speech in Thailand has centred onevaluating the constitutional and legal provisions designed to safeguard these freedomson a general level, with particular attention directed to the regulation of broadcastingand the press. By way of contrast, the second half of this article provides an in-depthcritique of the lèse-majesté law, which was conceived to protect the revered institution ofthe monarchy but which has increasingly been deployed by factions claiming loyalty tothe King to prevent more general criticism of the authorities. A number of commentatorshave claimed that a revived cult of the monarchy has been used in recent times as arepressive force in Thai society.34 In essence, it will be argued that the law as applied in itscurrent form, which has included measures intended to close down internet sites andcontrol use of the web, fundamentally undermines freedom of expression. Beforeconsidering this proposition in more depth, it is instructive to have some awareness of thehistorical antecedents to the current law. Rama I, who established the Chakri dynasty inthe wake of the sacking of Ayutthaya by the Burmese, was responsible for producing a‘definitive text of all the laws’, the Three Seals Code.35 With the atrocities of the Burmesestill fresh in the memory and the new dynasty based in Bangkok only recently formed,laws were needed to reinforce an absolute monarchy which was responsible for protectingthe nation from invasion and from other internal and external threats. The highly detailedCapital Crimes section of the Three Seals Code sets out many crimes relating to the Kingand the royal entourage, including daring to speak impudently of the King, disparagingroyal acts, edicts or commands, and a catalogue of other offences.36 At the same time, thislaw prescribed many punishments, some of which were fearsomely harsh, includingbeheading, the severing of hands and feet, and whipping. There was also the relativelylenient option of imposing fines.37 This law might be regarded as the precursor of lèse-majesté.38 Over the course of the nineteenth century, Siam (Thailand) was faced withchallenges from Britain and France as expanding imperial nations, and in order to avoidforeign intervention on the pretext of eliminating archaic cultural practices King RamaV (Chulalongkorn) saw the modernisation of the Thai state and its laws as an imperative.

39 Provision 4: ‘Whosoever defames the reigning King of Siam or the major concubine, or the princes orprincesses, … through something said with the mouth, or written in letters, or done in any fashion in ameeting of people at large, with intemperate words which may clearly be seen as truly defamatory, thisperson has acted illegally.’

40 Section 98: ‘Whosoever displays malice towards or defames the King, the Queen Consort, the Heir-apparent,or Regent when he is carrying out his duties to the King, shall be liable to imprisonment not exceedingseven years or a fine of not more than five thousand baht, or both.’

41 J Girling, Thailand: Society and Politics (Cornell University Press, 1981) 55. 42 K Suwannathat-Pian, Kings, Country and Constitutions: Thailand’s Political Development 1932–2000

(Routledge, 2003) 198.43 This term refers to the Thai monkhood. 44 Harding (n 12) 3. 45 P Jirakraisiri, ‘Political Beliefs of the Thai Sangha’ (2004) 3(1) Chulalongkorn Journal of Buddhist Studies 219,

220. 46 Girling (n 41) 35. At 37 Girling states: ‘Throughout Thai history there has been [a] continuing dialectic

between bureaucratized formal hierarchy and personalized, informal clientship. This dialectic reflects boththe contrasts and the interaction in Thai society between the individuality that is customarily permitted …and the severe limitations on individualism imposed by status differences obedience towards those inauthority, and dependence on power.’

47 K Promoj, Buddhism and the World in Buddhism (Syamrath Press, 1977) 111–12.


Legal innovation became the order of the day. For example, the Royal Edict ofDefamation was introduced in 189939 and the original lèse-majesté law formed part of arevised modern penal code in 1908.40 However, following the death of Rama V there wasa ‘remarkable decline in royal authority, undermining the traditional conception ofabsolute monarchy as the dominant force in the official hierarchy’.41 This declineculminated in the abdication of Rama VII in 1935. Under the present King, althoughthere is now a constitutional monarchy the institution has been revived and, as themonarchy has become more influential, there have been phases when lèse-majesté hasbeen employed with increased vigour, usually to strengthen the political authority of thegovernment.42

At the same time, the ideology of Buddhism has played a significant part inconsolidating the role of the monarch. As Professor Harding points out: ‘successiveregimes since the establishment of the Chakri dynasty in 1782 [have] found it of greatimportance to ensure that its political programme was supported by the sangha,43 evento the extent that it has if necessary reorganised the sangha and suppressed dissent fromofficial interpretations of religion to bring about this result, making quite overt use oflegal and administrative controls.’44 The fact is that in Thai politics Buddhism is ‘animportant institution for creating social order and a medium through which that ordercan be controlled’.45 While in a positive sense ‘Buddhism is a socially integrating andstabilizing force’,46 at the same time the concept of Conventional truth (sammatutisca)requires an approach to living in society that involves accepting things the way they arein order to create goodness for oneself and others.47 This approach might be viewed asrather counter-revolutionary in outlook since a great deal depends upon Karma, which

48 Status can be changed by performing meritorious acts. A preoccupation with rank and status is reflected inancient legal texts (eg the Law of Civil Hierarchy and the Palatine Law) which form the basis of the ThreeSeals Code drawn up by Rama I in 1805. See M Vickery, ‘The Constitution of Ayutthaya: An Investigationinto the Three Seals Code’ in A Huxley (ed), Thai Law: Buddhist Law (Orchid Press, 1996) 156ff.

49 Streckfuss (n 38) 471.50 Handley (n 36) 134.51 Streckfuss (n 38) 463. 52 Ibid, 448.


suggests that an individual’s place in the social hierarchy is determined by their own pastactions and present conduct.48 Although there are strands of Buddhist teaching foundedupon democratic principles that allow for social mobility, for most Thais it is essential thatunquestioning obedience and appropriate deference is shown to those who are sociallysuperior. Of course, the King is placed in an exalted position at the pinnacle of the entiresocial order.

THE LÈSE-MAJESTÉ LAW

Any person familiar with Thailand soon comes to recognise that the monarchy is notonly a revered institution but also an area of extreme sensitivity. This is not a subject thatcan be treated with levity or with any suggestion of disrespect. ‘The lèse-majesté law isdesigned to suppress … characterisations of the monarchy that have come to threatenthe primacy of the official narrative of the Thai nation. The monarch is the main characterin history and at present is the being who, by his meritorious acts, unites the people, thenation, and the state ideology.’49 It has been noted that in earlier phases of Thai historyany act against the King was a regarded as a form of rebellion.50 Now for the ‘defendersof the official state narrative, lèse-majesté is tantamount to a kind of cultural treason, anational spiritual betrayal of Thai-ness (Khaam pen thai). It is a particularly damagingcharge to bring against someone, for it is the only crime, other than treason (which hashardly been used), that impugns patriotism’.51 This proximity to the crime of treason isbecause the King and the state come to be perfectly identified with each other; all offencesagainst the state are capable of being offences against the King, and vice versa. The presentKing’s persona has been progressively constructed by a sustained campaign of image-making. A visitor to Thailand is immediately aware that ‘the king’s presence is literallyeverywhere-laid out, [it is] in virtually every popular magazine, hung in every home,touted nightly on television, sung to simultaneously daily by the nation. The king’s imageis ubiquitous, [and] the state … has taken to itself the responsibility of protecting theking’s honour’.52

53 F Ferrara, Thailand Unhinged: Unraveling the Myth of a Thai-Style Democracy (Equinox, 2010) 71ff.54 Suwannathat-Pian (n 42) 4.55 Ibid, 145. 56 Raatchakitijaanubeksaa (Royal Gazette) Special Issue, Vol 93, Part 134 (21 October 1976) 46. See D Streckfuss,

The Poetics of Subversion: Civil Liberty and Lèse-majesté in the Modern Thai State, PhD dissertation,University of Wisconsin, 1998, 169ff.

57 Handley (n 36) 7. 58 General Sarat used this law to strengthen his own position around 1960.


It has been suggested that what might be defended as an understandable desire tosafeguard the reputation of a much respected institution in Thailand has been turnedinto a political weapon employed by factional interests. One influential view maintainsthat despite a gloss of constitutionalism, there was never any intention on the part of theconservative elite surrounding the King to introduce Western style democracy.53 Thepoint being that ‘the Thai version of democracy was a defective model, a distortion of itsWestern counterpart. It emphasised only the process of democracy without paying muchattention to another equally important side of the system, namely the principle ofobjective democracy: the guarantee of life, liberty and the pursuit of happiness ofindividuals within the common good.’54 The upshot is that in Thailand there is ‘an allencompassing law on lèse-majesté crimes to ensure not only that proper respect anddecorum be strictly observed but also that the not-so-refined aspects of royalty be keptout of public knowledge. Woe betide those who are unfortunate enough to transgressthis unusually high standard towards the royalty.’55

In recent times, there has been an increase in the level of punishment for the crimeof lèse-majesté, turning it into an even more serious offence. Instead of carrying amaximum of seven years’ imprisonment or a 5,000bt fine, the maximum prison sentencehas been raised to 15 years.56 This law is used to place a protective cocoon around theentire institution. ‘Embedded within national security statutes, the lèse-majesté law isapplied to protect not only the person of king and his immediate family but the institutionof monarchy itself, both current and historical. Maligning even a previous king can bringcharges, conviction for which could bring over ten years’ imprisonment. The result is thatno one dares question the story of King Bhumibol, or his family, or the semi-deified kingsof the entire dynasty.’57

There is also evidence indicating that the initiative for the re-drafting and stricterenforcement of this law did not originate with the King.58 In fact, there appears to be agulf between the King and those who claim support for and loyalty to the monarchy. TheKing and royal family do not personally file charges under this law. Further, in his 2005birthday speech the King distanced himself from any aura of infallibility. Heacknowledged that he himself should be criticised, and in making this speech he appearedto invite criticism. A number of commentators have pointed out that the law is employed

59 G Ungpakorn, ‘Since the Military Coup, Democratic Rights have Come under Attack. Now the Fightbackis Starting’ The Guardian, 18 February 2009.

60 It was even proposed by a National Legislative Assembly member under the interim Constitution (2006–7)to bring any criticism of royal advisers under the umbrella of lèse-majesté. See ‘NLA Drops Planned NewLèse-majesté Laws’ The Nation, 10 October 2007.

61 W Bagehot, The English Constitution (Fontana, 1963) 66. For Bagehot the dignified parts were ‘verycomplicated and somewhat imposing, very old and rather venerable’.

62 See Constitution of the Kingdom of Thailand 2007, Arts 171 and 108. The King has also frequentlyintervened at times of national crisis.

63 S Bungkongkarn, ‘Politicial Institutions in Thailand’ in S Xuto (ed), Government and Politics in Thailand(Oxford University Press, 1987) 59.

64 There have been attempts to defend the current law in a Thai context; see eg B Uwanno, ‘“Lèse-majesté”:A Distinctive Character of Thai Democracy amidst the Global Democratic Movement’ KPI, Bangkok, April2009, www.kpi.ac.th/kpien/index.php (accessed 27 May 2010).

65 Thai Criminal Code, Art 112.


by powerful groups with their own agenda who consider themselves close to the King toprevent debate and to silence criticism.59 We will see that this law has been used to subvertthe political process, undermining the precepts of a supposedly democratic constitution.60

As mentioned at the outset, the problem from the perspective of constitutional lawis that the application of the lèse-majesté law conflicts with other constitutional valuesand with Thailand’s international treaty obligations. While there may be no doubt thatthe King is afforded enormous respect, the fact is that his role is now that of aconstitutional monarch in a modern constitution which recognises free speech as part ofa democratic political system. In Walter Bagehot’s parlance, the King as a pivotal symbolicicon is ‘the head of the dignified part of the Constitution’.61 In other words, now thatexecutive power is in the hands of the Prime Minister and an elected government, therole of the King has been redefined. Nevertheless, he still has to intervene at vitalmoments, for example those relating to the formation of governments or the dissolutionof parliament.62 Given the necessity of performing such functions, it is crucial that heshould not belong to, or be perceived as having any direct association with, any politicalparty or faction, and that he should be widely regarded as politically neutral.63 Theinvocation of the lèse-majesté law by parties or factions within Parliament to castaspersions on their political opponents also has the effect of fatally undermining theKing’s constitutional position.64

THE NATURE OF THE OFFENCE

Turning to examine the offence itself: ‘Whoever defames, insults or threatens the King,Queen or the Heir-apparent, shall be punished with imprisonment of three to 15 years.’65

The first thing to note about the definition is its brevity. There is no further explanationor qualification. The words ‘insult’ and ‘threaten’ might be construed as being relatively

66 ‘The problem with broad and undefined defamation laws, of course, is that notwithstanding the examplesmade of writers like Nicolaides, nobody actually knows what to avoid in the future.’ R Alampay, TheGuardian, 22 January 2009.

67 s 326 Thai Penal Code. It remains highly controversial that defamation is punishable with imprisonment aswell as a fine.

68 S Deakin, A Johnston and B Markesinis, Tort Law (Oxford University Press, 5th edn 2003) 645.69 Streckfuss (n 38) 458. 70 Ibid, 469.71 Ibid, 454.


unambiguous, in the sense that an utterance, or indeed any conduct, which is a direct orindirect attack on the monarch will be taken as falling within the definition of the offence.However, the word ‘defame’ introduces a very wide category.66 The Thai definition of‘defame’ states: ‘Whoever imputes any thing to the other person before a third person inthe manner likely to impair reputation of the such other person or to expose such otherperson to hatred or contempt is said to commit defamation …’67 This form of words isclose to the classic common law conception, which concerns the publication of astatement tending to lower a person’s reputation by exposing them to hate, contempt orridicule or which would tend to lower a person’s reputation in the eyes of right thinkingmembers of society.68 The submission of evidence that the plaintiff’s reputation has beentarnished is usually the basis for winning the case. In Thailand this criminal offence (nottort) is committed if anyone could hypothetically construe the alleged statement orconduct as being detrimental to the reputation of the monarchy. In a nation which treatsits royal family with such great reverence it is not possible for the prosecution to establishthe offence by reference to the actual impact of the alleged conduct. In any charge of lèse-majesté ‘the prosecution is faced with the utter impossibility of producing witnesses tosubstantiate the fact that the words “would cause people to look down on themonarchy”’.69 This is because any witness who made an admission supporting theprosecution case would themselves be committing the offence of lèse-majesté. It would beincriminating for them to state in court that their personal view of the monarchy hadbeen lowered as a result of the alleged statement.

An earlier interpretation regarded as defamatory ‘anything that has insulted the king,government, or system of governance’ or anything that would ‘cause the people to be …without faithfulness or loyalty to the king’. But, as we shall see with recent cases, this hasnow shifted from the corporality of the King to any threat to the contemporary state,whether posed by government critics, demonstrators, republicans or even fictionwriters.70 Further, justification or truth provides no defence to this crime. In the case ofKosai Mungjaroen in July 1957 the court refused to accept that the defendant was fairlyreporting the news. It considered that if the words of the defendant had been heard by anaudience the King’s reputation would be damaged. That was enough to secure aconviction.71

72 Suwannathat-Pian (n 42) 198–9. 73 TC 2007, Art 8. 74 Handley (n 36)149.75 Streckfuss (n 38) 449.76 Ibid.


LÈSE-MAJESTÉ AND POLITICAL DISSENT

It is apparent that the deployment of this law has been subject to deliberate manipulation:‘Within the last three decades charges of lèse-majesté have been laid indiscriminatelyagainst those who were seen as threats to the Throne, the ruling clique, politicians, orsimply those who are not informed of the “sacredness and inviolability” of the Thaimonarchy.’72 In one area in particular the military has deliberately turned to this offenceas a means of consolidating its authority directly or indirectly. In October 1958, followinghis second coup, Field Marshall Sarit Thanarat oversaw the drafting of an interimConstitution of 28 January 1959 which not only removed all vestiges of democracy, butalso redefined the position of the King in the Constitution, as it has been subsequently,as ‘sacred and inviolable’. Indeed, Article 8 of the present 2007 Constitution provides that‘The King shall be enthroned in a position of revered worship and shall not be violated.No person shall expose the King to any sort of accusation or action’ and that ‘no personmay proffer charges or bring an action against the King’.73 Subsequently, the promotionof the monarchy was undertaken as a key element in a pro-American and, at the sametime, anti-communist official policy bolstered by the US information service, whichprovided funding for a massive public relations exercise. This included the circulation ofimages of the King to every Thai home.74

The case of Wira Musikaphong in 1988 graphically illustrates the way in which lèse-majesté has been used by politicians to muzzle political opponents.75 The essence of thealleged offence was that Wira, a member of a party opposed to the military in an electioncampaign, had compared himself to a Prince in criticising a political opponent. Part of apolitical speech included the following remark: ‘If I were a prince now, I would not bestanding here, speaking, making my throat hoarse and dry … I would be drinking someintoxicating liquors to make myself comfortable and happy.’76 It was alleged that thisreference (a subversive metaphor) suggested that the King did not suffer the privations ofthe poor and that royals were lazy. He protested innocence and affirmed his loyalty to theKing. A month later, Phijit, a senator, raised the matter of the ‘insulting’ speech in theSenate. An explanation and pledge of loyalty to the King agreed with Phijit appeared tohave settled the issue. However, once the matter had been brought to the attention of thewider public, a senior general was able to stir up popular feeling against Wira. In turn, thispublic focus exerted pressure on the police to prosecute. A number of senior militaryfigures appeared for the prosecution against Wira. They maintained that any loss of loyalty

77 Streckfuss (n 56) 195. 78 TC 2007, Art 39. 79 Streckfuss (n 38) 449.80 Ibid, 460.81 V Green, Renaissance and Reform (Arnold, 1964) 190ff. 82 It has been pointed out that cases involve confession, recantation, and reverence to the King, so that the

defendants’ individual acts of public redemption provide a collective reaffirmation of Thai-ness amountingto a ritualisation of loyalty (Streckfuss (n 38) 465).

83 Police officers investigating allegations of lèse-majesté have faced charges in respect of internal memosreferring to a translation of an allegedly damaging article published in the British Daily Express. SeeStreckfuss (n 38) 461ff.


to the King would present an opening to the communists, who were seeking to infiltrateand destroy the Thai system of governance and remove the King as head of state.77 Aftermuch semantic argument between prosecution and defence as to what the phrases meant,and whether he was in fact referring to the King, Wira was acquitted by the provincialcourt, but found guilty on appeal and sentenced to six years’ imprisonment. The truth oraccuracy of the words had become irrelevant to the case. The defendant’s intent wasdetermined by constructing a hypothetical effect totally out of context. Such aninterpretation of the law allows a court to reach a conclusion which disregards otherrelevant evidence relating to the accused. In the application of this law a court is thereforelikely to contravene the constitutional guarantee of the presumption of innocence.78

This ill-defined law applied in the absence of any judicial reasoning has assumed abizarre logic of its own.79 A decision to publish criticism of the King in a newspaper in1973 was successfully defended. The offending text originated from the Thai NationalSalvation Movement and appeared in the newspaper Sayaam Rat. Kukrit Pramoj, theproprietor, who was also a former Prime Minister, successfully argued that his newspaperSayaam Rat was obliged to defend the monarchy when it faced attack by publishing andthen responding to such criticism. It was further argued that failing to act in suchcircumstances could have been interpreted as a commission of the offence of lèse-majesté.The irony was that subversive sentiments were indirectly disseminated by the action ofone of the monarchy’s stoutest defenders.80 Indeed, the absurdity of this law is amplifiedby the fact that any lèse-majesté charge brings the allegedly damaging content to a wideraudience. Any court which tries a person and in doing so repeats the offending wordscommits lèse-majesté, as does the Royal Gazette, which publishes reports of cases, theassumption being that, following in the footsteps of the European Counter Reformation,trial, condemnation, confession and punishment will somehow expurgate the effect ofthe statement.81 Of course, the condemnatory impact of prosecution, trial and sentencewould be lost if the trial proceedings were held entirely in camera.82 Furthermore, the lawcarries with it an imperative for the police to prosecute and for judges to convict. Failureto do so might lead to allegations of lèse-majesté against individual officers or judges ongrounds of disloyalty to the monarchy.83

84 ‘A defamatory statement is one which injures the reputation of another by exposing him to hatred, contemptor ridicule, or which tends to lower him in the esteem of right thinking members of society.’ Deakin et al(n 68) 645.

85 A Ashworth, Principles of Criminal Law (Oxford University Press, 6th edn 2009) 24–25. See eg Lord Reid’sfamous statement of this principle in Sweet v Parsley [1969] 1 All ER 347 that, to avoid the public scandalof convicting on a serious charge persons who are in no way blameworthy, ‘it is firmly established by a hostof authorities that mens rea is an essential ingredient of every offence unless some reason can be found forholding that it is not necessary’.

86 Ibid.87 In the Wira trial (discussed above), after giving their testimony which supported the prosecution case,

witnesses cross-examined by defence advocates agreed that their devotion to the King had not been in anyway affected. If this is true after hearing or reading the statement and all accusers remain loyal to their king,there appears to be no logical reason for convicting except to gratuitously punish the accused.

88 See Deakin et al (n 68) 671: ‘This defence stems from the belief that honest and fair criticism is indispensablein every freedom-loving society. The law weighs the interest of the claimant against the freedom of speechand, on the whole, comes down in favour of the latter.’


CONFLICTS WITH HUMAN RIGHTS PRINCIPLES

From the standpoint of the basic human rights of the defendant, this offence displaysalarming features. First, it can be committed entirely without criminal intent. There isno need for the prosecuting authorities to bring any evidence to bear relating to foresighton the part of the defendant with regard to the effect of the statement or conduct. Thisfailure to introduce a subjective element removes the vital link for establishing seriouscriminality resulting in deprivation of liberty. The Thai law of defamation is a criminaloffence of strict liability, but it is based on the tort defined under English common law.84

However, under common law there is a ‘general assumption [in criminal cases] … thatsane adults may be held liable for their conduct and for matters within their control’.85

It is equally important that an individual should not be held liable for his or her actions‘unless (s)he has the capacity and a fair opportunity to do otherwise’.86 Faced with aserious criminal charge, a person should be judged on the facts as she believed them tobe. In lèse-majesté cases the alleged perpetrator can be brought before a court becausesomeone else understood the remarks as being damaging to the King. This will be thecase even if: (i) this was not the intention of the defendant; (ii) the defendant was not evenaware of the implications of the remarks; (iii) the monarchy was not actually expresslymentioned in the offending statement. The offence has been committed because thecomplainant reports the matter or because the statement or other conduct is reported tothe authorities, who then decide to act upon their perception of the alleged remarks. Thefact that there is a statement which is brought to their notice may be sufficient to securea conviction regardless of its effect.87 Furthermore, unlike the Thai defamation law, lèse-majesté does not recognise the defence of ‘good faith by way of fair comment’.88

89 There has been a limited official response to criticism of the abuse of lèse-majesté. In late 2009 an Order fromthe Office of the Prime Minister instructed that a committee be formed, to include officials from theMinistry of Justice, the Attorney-General and the Commissioner General of the Police, to advise the publicprosecutor on how discretion should be exercised to protect the rights of suspects in lèse-majesté andnational security cases.

90 Thailand is also a party to the International Covenant on Economic and Cultural Rights, the InternationalConvention on the Elimination of All Forms of Racial Discrimination, the Convention on the Eliminationof All Forms of Discrimination against Women, and the Convention on the Rights of the Child.

91 For example, Art 9(3) routine detention in custody of lèse-majesté suspects; Art 14(1), 14(3)(e) the difficultyof securing a fair public hearing when charged with this offence and in examining witnesses; Art 19 theright to hold opinions without interference subject to respecting the reputation of others.


Secondly, the insidiousness of the process is compounded by the lack of any prospectof ‘independent’ justice in Thailand in relation to this offence. The police, prosecutingauthorities and judges not only act in the name of the King, but there is an expectationthat their loyalty to the Crown will be reflected in an outcome that confirms the dignityof the King at the expense of the accused. Indeed, any prosecutor who fails to pursue a casevigorously might themselves be made the subject of a lèse-majesté charge. Thirdly, anequally disturbing feature of this crime is the disproportionality of the punishment, as inthe Da Torpedo case discussed below. If the allegations are sustained and a guilty verdictreturned, the perpetrator will face a term of imprisonment normally of no less than threeyears and often a great deal longer. Defendants nearly always apologise profusely andshow remorse, but this has relatively little mitigating effect. Finally, there must be clearlimits on the capacity of the prosecution to appeal when a defendant is acquitted. Forexample, in a case similar to Wira’s discussed above, where the accused is found not guilty,a rule should be introduced to prevent an appeal by the authorities so that there is asubsequent conviction of the accused on the same evidence. These are grave defects in thelaw, any one of which constitutes a serious affront to human rights in a democraticconstitution. The situation could easily be rectified. It would be quite possible to grantadequate protection to the monarchy with a revised law that requires proof of intentionor recklessness. At the same time, proportionate punishment could be introduced bysetting different levels of seriousness for the offence, with punishment caps for each level.Finally, clear rules could be drafted for prosecutors in order to prevent the authoritiesfrom taking their cue in deciding who to prosecute from politicians, the military or othervested interests.89 It was noted at the outset that Thailand has international human rightsobligations as a signatory to the Universal Declaration of Human Rights, and as a partyto the International Covenant on Civil and Political Rights since 1997.90 The currentapplication of the lèse-majesté law arguably breaches this covenant in a number ofrespects, as demonstrated by this analysis of the current law and by the cases discussed inthe next section.91

STRICTER ENFORCEMENT OF LÈSE-MAJESTÉUNDER THE YELLOW SHIRTS

Following the change of government in December 2008 there have been strongindications that efforts will be made to enforce the lèse-majesté law more vigorously. Thereappears to be an assumption on the part of influential figures who claim loyalty to themonarchy that aggressive enforcement will protect the Thai state from subversion.Academic critics have suggested that this is simply a matter of the preservation of a narrowpolitical interest.92 In any event the answer for this faction, it seems, is to mount anoffensive on multiple fronts. Thai citizens who voice dissent are the most obvious targets.The list is headed by the now fugitive Thaksin Shinawatra, the former Thai PrimeMinister. Thaksin was found guilty in absentia in the Ratchadaphisek Land case and wassentenced to two years’ imprisonment, but also faces the prospect of trial on several othercharges relating to his premiership. His reputation has certainly been tarnished bycorruption, but he is still a populist leader with a strong following. In this capacity heremains firmly in the sights of the PAD, his main political opponents, and should hereturn he is likely to be investigated for possible breaches of the lèse-majesté law.

Giles Ungpakorn, an academic from Chulalongkorn University, stepped into the firingline for seeking reform of this law and for the publication of a book which was critical ofthe 2006 military coup.

Although foreigners have fallen foul of lèse-majesté in the past, the treatment of theamateur Australian novelist Harry Nicolaides was perceived as being sufficiently harshto make the headlines in newspapers around the world. Nicolaides had published anobscure novel about Thailand which referred to a royal Prince. Fifty copies were printedand a total of seven were sold. After his arrest, despite expressing remorse, he was charged,denied bail pending trial and sentenced to a term of three years’ imprisonment. He hadbeen incarcerated for several months before being released following a royal pardon. Thehighly controversial three-year sentence was announced just when Thailand wasbeginning to recover from the adverse publicity caused by Yellow Shirt demonstrationswhich had forced the prolonged closure of Bangkok’s international airports in November2008. The BBC correspondent in Thailand, Jonathan Head, was placed underinvestigation for lèse-majesté after speculating about the relationship between palace andprotest groups in relation to these controversial demonstrations at Bangkok’s airports.93

In a much-publicised recent case, Ms Daranee Charnchoengsilpakul (aka DaTorpedo) was convicted in August 2009 on three charges of insulting the King and Queen.She was sentenced to six years’ imprisonment on each count consecutively, totalling 18


92 Ungpakorn (n 59).93 ‘BBC Reporter Jonathan Head Faces 15 Years in Thai Jail’ Huffington Post, 26 December 2008.

years.94 Her most inflammatory speech was a wide-ranging attack on the 2006 militarycoup makers and their conservative allies in which she repeated the widely reported butcontroversial view that the King was behind the military coup in September 2006 and theother military coups during his reign. The court held that this United Front forDemocracy against Dictatorship member and supporter of Thaksin had made severalremarks deemed to be lèse-majesté in speeches on the stage at UDD rallies at Sanam Luangon 18 January, 7 June and 13 June 2008. As a Thai citizen, Daranee would have been wellaware that the combination of strong innuendo and very intemperate language directedat the monarchy and its supporters was liable to land her in trouble. Nevertheless, hertreatment under the legal system might still be called into question. Not only was anotherwise law-abiding citizen denied bail for over a year; while in prison awaiting trial onthese charges she appears to have been the victim of abuse.95 Moreover, the trial was heldin camera with reporting restrictions imposed,96 and the consecutive sentence handedout might be regarded as grossly disproportionate punishment.

Indeed, the reactions of the international media commenting on the King and theapplication of this arcane law have also become targets for the Thai authorities. Afterpublishing an article which discussed the current role of the Thai monarchy and thegoverning faction, the Economist magazine was banned ‘temporarily’ in Thailand.97 As weshall see below, at the same time, the Thai Ministry of Information CommunicationsTechnology has devoted considerable energy and resources to shutting down websitesdeclared to be anti-monarchist. The Senate, which now has a considerable PAD faction,recently set up a committee composed of 30 members to strictly enforce the law to protectthe royal family. This committee will by chaired by the head of the national police forceand it will consist of 19 senators and 11 other officials.98 As the writer in the bannededition of the Economist notes, this strategy is most unlikely to work: ‘A whirl of lèse-majesté accusations have been made against pro- and anti-Thaksin figures. But the PAD’seven more menacing behaviour, the palace’s failure to disown it, and the group’sinsistence that Thais must choose between loyalty to Mr Thaksin and to the king, may bedoing untold damage to the Crown itself.’99


94 Case Black at (letter O), 2812/2009; ‘Da Torpedo’s Downfall a Warning to the Like Minded’ The Nation,1 September 2009.

95 ‘UDD Abandons “Da Torpedo”’ Bangkok Post, 24 February 2009.96 Amnesty International, ‘Thailand: Closed Trial Threatens Justice’, 25 June 2009, www.amnesty.org/en/for-

media/press-releases/thailand-closed-trial-threatens-justice-20090625 (accessed 23 May 2010).97 Presumably this made it an offence to sell the magazine in Thailand, but what if this magazine with an

international circulation was brought into the country by an unsuspecting visitor?98 ‘The Senate Forms Panel to Monitor Enforcement of Lèse-majesté’ Prachatai, South East Press Alliance,

27 January 2009. 99 See n 97.

INTERNET CENSORSHIP AND THE LÈSE-MAJESTÉ LAW

In the contemporary world the internet is a form of mass communication relied upon byincreasing numbers of citizens, and it is a technology which is extremely difficult tocontrol. In addition to official websites maintained by national governments and otherpublic bodies, information is posted on innumerable websites around the world on everyconceivable subject, including the Thai monarchy. Further, an increasing amount ofpublished material in books, academic articles, journals and newspapers is availableelectronically through library services to which students or researchers are given access assubscribers. Broadcasters, newspapers and individuals use websites as a means ofcommenting on events as they unfold. Members of the public are able to contribute theirown views to ‘blogs’ on an ongoing basis. Visitors to such sites can read through thesecontributions before adding their own comments. Search engines such as Google directweb surfers to sites which match the search criteria that they have entered. This form ofmass communication has unique features. It enables individuals to be in closecommunication wherever they happen to be in the world. It is an instantaneous form ofcommunication, in the sense that whatever is posted on a website is available immediately.Material on websites can be updated with great ease, and such material comes in manyforms, including articles, pictures, sound recordings, webcasts, films and televisionprogrammes. Information can be communicated to a large number of people extremelyquickly, and this can be done across national boundaries.

The internet has enormous potential for abuse. Let us take two obvious examples inrespect of the practices of private users: private websites have been employed by childpornographers to promote exploitative practices that are abhorrent to the vast majorityof citizens;100 and, in a different context, fraudsters use websites to lure unsuspectingsurfers in order to fleece them of their money. Governments have a legitimate interest inestablishing some control to prevent such abuses. The danger is that the cure becomesworse than the disease and that these malpractices are cited as an excuse for introducingextensive political censorship. It was claimed by the authorities that Thailand’s ComputerCrime Act,101 enacted under the military junta in 2007, was drafted to combat onlinepornography102 and prevent other online offences such as using the internet to promoteterrorism. However, it is a very wide-ranging law directed at the estimated 12 millionregular internet users in Thailand. For example, the Act covers import to a computersystem of computer data related to an offence against the Kingdom’s security under the


100 ‘Fighting Crime with the Click of a Mouse’ Bangkok Post, 7 July 2008. 101 Computer Crime Act BE 2550 (2007), Vol 124, Section 27 Kor, Government Gazette, 18 June 2007. 102 Section 14(4) up to five years’ imprisonment for ‘import to a computer system of any computer data of a

pornographic nature that is publicly accessible’.

Criminal Code.103 This form of words is open to wide interpretation, which has includedany implied criticism of the King falling under the lèse-majesté law. In addition, the Actoutlaws the transmission, interception and accessing of any computer data which isdefined as illegal.104 Any person using a computer with illegal material on it is potentiallyliable under the Act. The legislation grants officials in the Ministry of InformationCommunications Technology the right to apply for court orders to seize equipment andto block sites. Publishing companies have been shut down for hosting a server.105 In orderto make it easier for the authorities to trace abuse, the Act also requires internet serviceproviders (ISPs) to keep log files of bandwidth consumption and internet traffic andrecords of individual users for 90 days. Even users of internet cafes are required to registerso that they can be traced.

The application of the Computer Crime Act, which grants these far reaching powersto the authorities, must be viewed in the light of Article 36 of the 2007 Constitution,which guarantees Thai citizens ‘liberty of communication by lawful means’. The Thaiauthorities have directed considerable resources into policing this law by seizingequipment, shutting down websites and prosecuting alleged perpetrators of this new formof internet crime. However, there is increasing evidence that this law is being employedas a political weapon.106 In January 2009 the Ministry of Information CommunicationsTechnology claimed that it had blocked or shut down 10,000 websites which allegedlycontained material defaming the monarchy.107 A report published by Human RightsWatch states: ‘The government also has used both the lèse-majesté statute in the CriminalCode and the new Computer Crimes Act to suppress critics of the monarchy andpersecute perceived government enemies.’108 In other words, lèse-majesté, which has beenshown in this article to be a thoroughly discredited law, is being used under this legislationas a pretext to intimidate any parties, groups or persons109 opposed to the government andthereby to stifle political debate.


103 See s 14(3). The offence carries a maximum sentence of five years’ imprisonment. 104 See ss 5–13. These sections also make hacking or damaging computer data, especially where national security

is involved, very serious offences with maximum sentences of 20 years.105 ‘The Police Get Tough Net Laws’ The Nation, 18 July 2007.106 Among the many recent cases individuals have been charged for translating media reports about the health

of the King. Further, in January 2009 Suwicha Thakor was sentenced to 10 years’ imprisonment for postingmaterial on the internet which was judged to be contrary to the lèse-majesté law.

107 P Rojanaphruk, ‘Is Internet Censorship Getting Out of Hand and Hurting Users’ Freedom?’ The Nation,23 January 2009.

108 Human Rights Watch, ‘Thailand: Serious Backsliding on Human Rights’, 20 January 2010, www.hrw.org/en/news/2010/01/20/thailand-serious-backsliding-human-rights.

109 For example, websites associated with former Prime Minister Thaksin Shinawatra, Corruption Watch andGiles Ungpakorn are among those that have been blocked.

CONCLUSION

In the first part of this article we observed how conflicts of interest relating to mediaownership and control had an adverse impact in Thailand under the premiership ofThaksin Shinawatra. The ability of a single individual in political power to controlbroadcasting severely limited the capacity of the opposition to engage in the politicalprocess. The response, found in the 2007 Constitution, has been to strengthen provisionsrestricting conflict of interest and to require the introduction of a regime of statutoryregulation. While this regime cannot be evaluated as it is not yet fully operative, theresignation of Prime Minister Samak in 2008 provided early evidence of the strictenforcement of the conflict of interest provisions under the Constitution, but at the sametime there is evidence that emergency powers have been invoked by the presentgovernment to restrict the capacity of the opposition to present their case.

In the next section it was argued that the lèse-majesté law has been applied recentlyby certain sections of the Thai elite to re-establish their grip on political power. Suchaction would appear to have been based on the almost certainly mistaken assumptionthat opposition would be silenced by the threat of prosecution under this archaic andunjust law. Obviously, such conduct by the Thai authorities in the name of the King isstrongly at variance with a commitment to a democratic constitution guaranteeing theprotection of individual human rights in Thailand, as well as a breach of the country’sinternational treaty obligations. This law must be abolished or radically reformed notsimply because the right to free expression is integral to the recent 1997 and 2007Constitutions, but because the law is placed beyond constitutional oversight.110 Even theThai National Human Rights Commission as an organ of the state cannot look into anyalleged abuse of the lèse-majesté law without itself being accused of committing theoffence.

Further, as the reign of the present King reaches its late stages there is genuine interestin the monarchy and concern over the royal succession. Against this background, it issuggested that attempts by any Thai government, the police or the army to impose blanketrestrictions on an area of genuine public interest will be increasingly futile in thecontemporary world of instantaneous mass communications. At one level the internet isa sophisticated tool available to millions of Thai citizens. It invites public participation indebate and it is most unlikely that attempts to shut down websites will ever match theingenuity of citizens wishing to set up them up. Moreover, increasing numbers of Thaicitizens travel abroad and/or have contacts in other countries where open debate and freecirculation of critical ideas is taken for granted.


110 ‘One of the challenges facing the rule of law and human rights is to ensure that there are checks and balancesagainst the abuse of power.’ See V Muntarbhorn, ‘Rule of Law and Human Rights in Thailand’ inR Peerenboom (ed), Asian Discourses of Rule of Law (Routledge, 2004) 364.

This difficulty in enforcing such laws was illustrated more than two decades earlier,when the British government banned a book entitled Spycatcher in the United Kingdomin order to prevent the circulation of material which was allegedly in breach of the OfficialSecrets Act.111 However, it was impossible to stop publication in Australia and the UnitedStates and thus to prevent the wider dissemination indirectly of the content deemedundesirable. Professor Gearty considers that ‘It is unlikely that a cause célèbre of Spycatcherproportions will ever occur in the future: the case stands on the cusp of the internet eraand from the perspective of users of the World Wide Web, the litigious efforts of theauthorities appear not merely to be ill-judged but to belong to a different era.’112 TheThai authorities seem still to be locked in that era. Far from promoting greater respect forwhat has been regarded as a revered institution, the present strategy is in danger of callinginto question the motives of those responsible for enforcing lèse-majesté and, at the sametime, the credibility of the monarchy itself as part of a democratic constitution.


111 In the 1980s a former member of the British secret intelligent services who was no longer resident in theUnited Kingdom wrote an account of his experiences as an agent which referred to plots to undermine anearlier government. In making these highly controversial revelations he was in clear breach of the UK’sOfficial Secrets Act. See P Wright, Spycatcher: The Candid Autobiography of a Senior Intelligence Officer(Viking Press, 1987).

112 Gearty (n 2) 128.

pl journal of media law

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