THAILAND: Concerns over delayed verdict in criminal case against free media advocate
On 30 April 2012, the Criminal Court in Bangkok was scheduled to read its verdict in Black Case No. 1667/2553 on ten alleged violations of the 2007 Computer Crimes Act. The defendant is Chiranuch Premchaiporn, the 44-year-old webmaster of Prachatai, an independent online news site. Suddenly, instead of reading the decision, 20 minutes before the proceedings were to begin court staff notified Chiranuch and her lawyers that the decision would be delayed for an additional month. The rather dubious reason given by the court for the delay was that the judges had too many documents to read, and could not complete preparing the verdict in time for the scheduled date.
Both the delay to this case and the explanation for the delay are sources of serious concern to the Asian Human Rights Commission. The judges gave the date for reading the verdict in mid-February 2012, on the last day of hearings. At that time, they knew the case and the amount of evidence that they had to review. If they required a longer time to reach their findings, they ought to have set the date later. That they did not casts doubt on their excuse for not delivering the verdict on the appointed date, as does the manner in which the notification was delivered to the defendant. Had the judges really known that they could not prepare the verdict in time, the court need not have waited until minutes before the scheduled reading date to postpone the ruling; it could have notified the defendant's lawyers the week before that the hearing would have to be postponed. That they notified the defendant at the last minute constitutes a form of psychological torture, since Chiranuch was already on her way to court and had readied a bag of items to take with her to prison in the event of a conviction. Now she faces another month of waiting, of not knowing her future.
From the beginning, the case brought against Chiranuch has made a mockery of the notion of justice, and so too the institutions in Thailand responsible for it. In this sense the delay constitutes only the latest in a series of state-endorsed abuses of the defendant's rights. In particular, this case represents an instance of the clear abrogation of the state's responsibilities under article 19 of the International Covenant on Civil and Political Rights, to which Thailand is a party.
The formal proceedings against Chiranuch began on 3 March 2009, when the Criminal Court issued a warrant for the defendant's arrest. On March 5, a warrant to search the Prachatai office was issued and the next day police from the Crime Suppression Division raided the office and arrested Chiranuch in response to one complaint of her alleged violation of the vaguely worded, anti-democratic Computer Crimes Act, which an unelected legislature operating under a military-appointed government passed in 2007. The police released Chiranuch later that evening, but the next month nine further complaints were brought against her. On 31 March 2010, the Office of the Attorney General proceeded with the prosecution and she was arrested and held at the Criminal Court before again being released on bail.
Reading the above account, we might infer that Chiranuch had published some highly inflammatory, dangerous or secret material on the Prachatai site that warranted the heavy involvement of specialist police and state prosecutors. In fact, her crime was to have not done something: to have failed to remove 10 comments alleged to be injurious to the monarchy from the Prachatai webboard quickly enough. Her alleged crime, to underscore the point, was that she removed the comments, which consisted of allusions rather than direct references to the royal family, with insufficient rapidity.
Examination of the specific provisions of the 2007 Computer Crimes Act under which these bizarre allegations were brought does not help us to clarify the thinking of those responsible for the prosecution of Chiranuch Premchaiporn. However, it does raise a series of questions about the dubious qualities of this law and the dangers it poses to the rights of citizens. Under its section 14, anyone can be jailed for five years if found to have imported to a computer "false computer data in a manner that it is likely to damage the country's security or cause a public panic… [or] any computer data related with an offence against the Kingdom's security under the Criminal Code". Under its section 15, the service provider found to have consented to the use of the computer for this purpose is equally liable as the person committing the offence, which in the case of Chiranuch is the crime of lese majesty, as stipulated in section 112 of the Criminal Code, that, "Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished (with) imprisonment of three to fifteen years."
The trial hearings occurred in February and September 2011, and February 2012, and summaries by Freedom Against Censorship-Thailand are available on the campaign webpage that the AHRC has set up for Chiranuch. As these show, much of the testimony turned on the interpretation of how the comments that she removed tardily, in the opinion of the police and prosecutor, constitute criminal content in the meaning of the law. Whether or not a written comment on a webpage or link to an image or video is "likely to damage the country's security or cause a public panic" is necessarily fraught with difficulty, even more so as the Computer Crimes Act does not specify what might constitute a likelihood to damage the country's security or create a public panic, or even define "security" or "public panic". What any of these terms mean, it seems, comes down to the opinion of the judge in the individual case. No standards exist to which we can refer.
The hearings also turned on the question of whether in providing the webboard for public comment the defendant had consented to the posting of all and any comments on that site, making her criminally liable for them. As she removed the offending comments once aware of them, it seems patently obvious that she did not consent to anyone posting anything on the site, and yet the prosecution argument rests on the implicit reasoning that whosoever provides an online chatroom or space for discussion about any topic consents to the posting of any content on any matter. This absurd proposition could only be entertained in the context of draconian legislation of the sort being used against Chiranuch, with the intention of preventing the free expression of opinion about issues that really matter to people in Thailand during a critical period in the country's modern history. Indeed, the charges did have the effect of forcing Prachatai to shut down its webboard, for fear that both users and more of its staff members could face additional prosecution.
In responding to criticism about the case, the government of Thailand has characteristically shown either an inability to grasp elementary values of human rights, or a wilful disregard for those values. It has also underplayed, either intentionally or unknowingly, the potential consequences of this case. For instance, in a statement submitted to the United Nations Human Rights Council on 19 May 2011, the Asian Legal Resource Centre, the sister organization of the AHRC, set out the facts of Chiranuch Premchaiporn's case and commented that it illustrated "the over-use and manipulation of the law to intimidate citizens and silence speech critical of the monarchy and ruling government regime". The ALRC highlighted the response of the government of Thailand to the concern expressed in September 2010 by the UN Special Rapporteur on the situation of human rights defenders, Mrs. Margaret Sekkaggya, regarding the case against Chiranuch. The government maintained that both the 2007 Computer Crimes Act and section 112 of the Criminal Code are not in conflict with either the 2007 Constitution or the ICCPR. Instead it replied that
"Thailand, as an open society, upholds the people's right to freedom of speech and expression as guaranteed by the Constitution. The exercise of such rights, however, must bear in mind considerations regarding national stability and social harmony. Views that are disrespectful of the monarchy, or advocate hatred or hostile feelings toward this important national institution, or those which incite hatred or violence are generally unacceptable in the Thai society."
Article 19 of the ICCPR allows for restrictions on freedom of expression when necessity is clearly present: that officials deem a view "unacceptable" does not discharge the burden of necessity in this case, and nor does it justify the prosecution of persons for the expressing of such views. Indeed, some of the most atrocious acts in modern human history have been justified through recourse to notions of "national stability and social harmony". To account for the prosecution of Chiranuch Premchaiporn in these terms indicates how very far removed the state in Thailand really is from the international human rights framework that it claims to respect.
In view of the above facts, the Asian Human Rights Commission calls on the Criminal Court to ensure that no further delays are caused in the reading of this verdict, and that the trial be conducted openly, honestly and justly. A special effort must be made by the court in this case to ensure that indeed justice is done. The AHRC also wishes to point out to the court that delaying tactics will not cause human rights defenders around the world to lose interest in the case, but only heighten the amount of attention that it receives, since the use of such tactics raises the level of doubt about the manner in which the trial has been conducted and the prospects of the accused for a fair outcome. Last of all, and in this regard, the AHRC urges all those persons and organisations concerned with human rights and freedom of expression in Thailand to return to the Criminal Court on 30 May 2012 for the re-scheduled reading of the decision.
(Visit the AHRC webpage on Chiranuch Premchaiporn at: http://www.humanrights.asia/campaigns/chiranuch-prachatai.)