THAILAND: Case of Darunee Chanchoengsilapakul, denied freedom of expression & politicization of the judiciary

September 4, 2009

An Open Letter to the UN Special Rapporteurs on Freedom of Expression and Independence of Judges and Lawyers by the Asian Human Rights Commission (AHRC)

Frank La Rue
Special Rapporteur on the right to freedom of opinion and expression
Palais des Nations
CH-1211 Geneva 10

Gabriela Carina Knaul de Albuquerque e Silva
Special Rapporteur on the independence of judges and lawyers
Palais des Nations
CH-1211 Geneva 10

Fax: +41 22 917 9006

Dear Special Rapporteurs

THAILAND: Case of Darunee Chanchoengsilapakul, denied freedom of expression & politicization of the judiciary

The Asian Human Rights Commission (AHRC) is writing to you to request urgent intervention in accordance with your respective mandates in response to the case of Darunee Chanchoengsilapakul, and also with a view to wider concerns about steadily declining freedom of expression and increasing politicization of the judiciary in Thailand.

Darunee, as you may already be aware, was convicted and sentenced to 18 years in prison on 28 August 2009 on three counts of lese majesty. The charges arose from one of many speeches that she made after the 2006 coup, in which she alluded to the links between the monarchy and the coup-makers, among other things. Darunee attempted three times to obtain bail but it was denied, although the court had no specific grounds upon which to refuse it under section 108 of the Criminal Procedure Code. Furthermore, she was tried in a closed court under section 117 of the code, which stipulates grounds for a closed trial as interests of public order or national security. Her lawyer submitted an application to the Constitution Court for the trial to be invalidated on the basis that it was in violation of her constitutional rights to try her in this manner, but it was refused.

The AHRC is not aware of another case in recent times in which a defendant has been treated as such an extraordinary threat over a question of free expression. We believe that she was treated in this manner because she chose to fight the charges, rather than plead guilty and seek a royal pardon. Accordingly, we shall be making a submission to the UN Working Group on Arbitrary Detention that the imprisonment of the defendant violates international law by virtue of article 10 of the Universal Declaration of Human Rights, that, “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

The trial and conviction of Darunee brings together two key concerns of the AHRC regarding the human rights situation in Thailand in the last few years: the decline in freedom of expression and the rise in use of the courts for blatant political purposes.

With regards to the first, the situation in Thailand is complicated by the proliferation of many types of media, which give the false impression that there is a relatively high level of free expression in the country. In fact, most of the broadcast media are tightly controlled and much of them are in the hands of government agencies and the armed forces. The newspapers and other print periodicals, which in the 1990s had a good reputation, have for the most part in recent years practiced heavy self-censorship or have become openly partisan since the removal from power of former Prime Minister Thaksin Shinawatra. The Internet and streets remain spaces for communication, which is why the authorities have tried to patrol both vigorously and make examples out of their targets. Prior to Darunee’s case, a man was sentenced to 10 years in jail for posting offensive images of the king online, and there are a number of other cases pending for alleged Internet offences, including under the highly ambiguous provisions of the Computer Crime Act BE 2550 (2007). Government agencies have also reportedly blocked thousands of web pages with little or no oversight, the majority of them of political nature.

With regards to the second concern, the AHRC has watched with alarm as the superior judiciary was in 2006 reconstituted along lines set by the military regime that took power that September, and has since been used for explicitly political purposes. In 2008 the senior courts twice removed elected governments consisting of Thaksin sympathizers under bizarre provisions of the anti-democratic 2007 Constitution that were inserted for the express purpose of emasculating parliamentary democracy. On the other hand, there is yet to be any satisfactory legal action taken against the organizers of the protests that occupied Government House and the international airport last year. The effect of these and other cases, including that heard against Darunee, has been to diminish greatly the standing of the courts in Thailand, at cost to themselves and society as a whole. Whereas in the past it was uncommon to hear people talking of the judiciary as politicized, now the expression “double standards” has become common parlance when talking about the law and its application.

The current government of Thailand has, despite the fact that it came to power through a backdoor, tried to insist that it is concerned for the situation of human rights in the country and is keen to cooperate with international monitors, including through the inviting of Special Rapporteurs. Accordingly, in addition to our request that you submit a joint urgent intervention to the government of Thailand on the case of Darunee Chanchoengsilapakul, we ask that you also consider submitting requests for invitations to visit the country formally and study recent events for yourselves. The situation in Thailand is of sufficient importance not only because it has worsened considerably in recent years but also because the country has a strong influence on developments in the wider Southeast Asian region, being among the larger and more developed of its peers and a key member of the Association of Southeast Asian Nations. If nothing is done to arrest its continued decline on a range of human rights indicators then the effects will be damaging not only for Thailand but for the region as a whole.

Yours sincerely

Basil Fernando
Asian Human Rights Commission, Hong Kong

Cc: Homayoun Alizadeh, Regional Representative, OHCHR, Bangkok, Thailand

Document Type : Open Letter
Document ID : AHRC-OLT-022-2009
Countries : Thailand,