THAILAND: Arbitrary detention of a human rights defender and continued removal of constitutional protections 

On December 19, 2012, the Criminal Court in Bangkok was scheduled to deliver the verdict in the case of Somyot Prueksakasemsuk, who has been charged under Article 112 of the Criminal Code.  The reading of the decision was rescheduled for tomorrow, Wednesday, January 23, 2013, at 9 am at the Criminal Court in Bangkok. The Asian Human Rights Commission urges all individuals concerned with freedom of expression, and human rights broadly, to attend the reading of the verdict if possible, and if not, to follow developments in this case closely.

Somyot Prueksakasemsuk is a long-time labour rights activist and human rights defender in Thailand. Since 2007, he has been the editor of Voice of Taksin magazine. He was arrested and taken into custody on April 30, 2011, and shortly thereafter charged with two violations of Article 112 of the Criminal Code, which states that “Whoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.”  In Somyot’s case, the charges were for allegedly allowing two articles with anti-monarchy content to be published in Voice of Taksinmagazine.  Somyot was held for six months of pre-trial detention; the hearings in his trial began on November 12, 2011 and continued until May 3, 2012.  Similar to the majority of individuals who have been charged under Article 112, his repeated requests for bail were denied on the basis of the gravity of the charges against him.  In August 2012, the UN Working Group on Arbitrary Detention noted that Somyot’s detention was arbitrary because “he has been detained for his peaceful exercise of his right to freedom of opinion and expression provided for” in both the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights (Read the full opinion of the Working Group here).

The reason given by the Criminal Court for the deferral of the reading of the decision on December 19, 2012, and therefore the extension of Somyot Prueksakasemsuk’s arbitrary detention, was the need to read a comment by the Constitutional Court in relation to Article 112 of the Criminal Code. The comment, dated October 2012, addressed a petition submitted by Somyot as well as a petition submitted by Ekachai Hongkangwan, who is being prosecuted in a separate case for alleged violations of Article 112. The comment addressed whether or not Article 112 was in contravention to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution (The full comment can be read in Thai here).  In response to concerns about each of these provisions of the Constitution, the Constitutional Court ruled that Article 112 did not stand in contravention and was therefore constitutional.

The Asian Human Rights Commission is gravely concerned by the stance taken by the Constitutional Court in their comment and their cavalier dismissal of the significant concerns presented. With regard to each of the three articles of the Constitution raised as contravened by Article 112 of the Criminal Code, the Court’s explanation is at best, vague, and at worst, ideological. What makes this comment significant is both the potential impact it may have on the judgment rendered in Somyot Prueksakasemsuk’s case, as well as other lese majeste cases and the broad frame of freedom of expression and human rights in Thailand.

The Constitutional Court frames their comment by citing Articles 2 and 8 of the Constitution. Article 2 states that “Thailand adopts a democratic form of government with the King as Head of the State.” Article 8 states 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.” The Court then notes that Thailand has had a king as head of state “for a long time, since the Sukhothai era, even though there was a transformation in 1932 to be a democratic regime with the king as head of the state under a constitution.” The Court continues, noting that “Up until the current constitution of the kingdom, the form of regime remains one with the king as head of the state.” The Court then comments on what this means, offering the interpretation that “This demonstrates the great respect, esteem, and admiration held by the people for the institution of the monarchy. The place of the Thai king as the respected and beloved center of the Thai people has been continuous, as shown in age-old royal traditions and legal conventions. The king has administered with virtue and taken action with the intention of the well-being of the people. In particular, King Bhumipol Adulyadej, the current monarch, greatly contributes to the nation and gives royal grace to the Thai people. He visits the people and bestows royally-conceived projects in different areas in order to alleviate the suffering and solve the problems and troubles of the people. He teaches the people to subsist in line with the principles of the sufficiency economy, by living in line with the middle way, having enough, and being prepared to face changes which may arise. Ordinary people are aware of the king’s conduct and his generosity. They therefore have deep-seated respect, trust, and loyalty for the king and the institution of the monarchy. The long-standing patronage of the Thai king has made the Thai people to continually respect, love, and admire the king. This is a unique characteristic of Thailand held by no other country.” For this reason, the Constitutional Court explains that the state provides protection because the king is the head of state and a primary institution of the country.  The Court then notes that Article 112 of the Criminal Code is a complimentary provision to Article 8 of the Constitution.

In addition, the Constitutional Court also frames the comment by noting that the purpose of Article 112 of the Criminal Code is to “control the behavior of individuals in society, protect safety, and safeguard public peace for members of society, including strengthening the security in society.”  The reason why it is appropriate to do so is because speech deemed to insult, defame, or threaten the king, queen, heir-apparent or regent, “may be action that destroys the hearts of Thai people who have respect, love, and are loyal to the king and the institution of the monarchy, and may cause resentment among the people.”

After this introduction, which foreshadows the Constitutional Court’s dismissal of the two petitions at hand, and any future petitions, the Court turns to specifically address Article 112 of the Criminal Code in relation to Article 3 (2), Article 29, and Article 45 (1, 2) of the Constitution.

Article 3 (2) of the Constitution states that “The National Assembly, the Council of Ministers, the Courts, other Constitutional organizations and State agencies shall perform duties of office by the rule of law.” The petition noted that the classification of Article 112 of the Criminal Code as a crime of national security, and the corresponding harsh punishment, was not in line with the rule of law. In response, the Constitutional Court notes that Thailand is a democratic regime with the king as head of state. The Court further argues that the monarchy is in a special position, and therefore a special law is just because the monarchy is a primary pillar of the nation, owing to history, royal tradition, and legal convention. Rather than addressing the question of national security, and how an alleged violation of Article 112 of the Criminal Code might affect it, the Constitutional Court instead attempts to redefine the rule of law to include special protection for particular individuals within the polity. i.e., the king, queen, heir-apparent, and regent.

The Constitutional Court examined Article 29 and Article 45 (1, 2) together. Article 29 is in the section of the Constitution which addresses rights, liberties, and human dignity in a broad sense, and states that “(1) The restriction of such rights and liberties as recognized by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and only to the extent of necessity and provided that it shall not affect the essential substance of such rights and liberties. (2) The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person provided that the provision of the Constitution authorizing its enactment shall also be mentioned therein. (3) The provisions of paragraph one and paragraph two shall apply mutatis mutandis to rules or regulations issued by virtue of the provisions of the law.” Article 45  states “(1) A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicize, and make expression by other means. (2) The restriction on liberty under paragraph one shall not be imposed except by virtue of the provisions of law specifically enacted 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 of preventing the deterioration of the mind or health of the public.” In response, the Constitutional Court argues that Article 112 of the Criminal Code does not have any effects on freedom of expression. The Court further notes that freedom of expression must be in line with the Constitution, and speech which defames, insults, or threatens the king, queen, heir-apparent or regent is not, and so Article 112 of the Criminal Code does not limit freedom of expression.

The Asian Human Rights Commission wishes to note one line in the Constitution not mentioned by the Court in their comment. The first sentence of Article 3 notes that “The Sovereign power belongs to the Thai people.” Throughout this comment, rather than specifying how the Constitution might be used to uphold the rights and liberties of the people, the Constitutional Court has instead specified the conditions under which the people do not have rights, or recourse to demand their rights.  Combined with a comment issued in 2011 in response to a petition filed by Daranee Charnchoengsilpakul (See AHRC-FAT-038-2011), the Constitutional Court seems to have taken up the task of systematically stripping rights and liberties out of the Constitution.

The Asian Human Rights Commission is concerned about what this comment may mean for the specific case of Somyot Prueksakasemsuk, who faces a maximum sentence of up to 30 years if convicted, as well as what it means broadly. The AHRC urges all concerned parties to observe the Criminal Court decision in the case of Somyot Prueksakasemsuk tomorrow and to closely follow related developments in other cases and Thai state actions and comments in relations to Article 112 of the Criminal Code.

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Document Type : Press Release
Document ID : AHRC-PRL-003-2013
Countries : Thailand,
Issues : Freedom of expression, Human rights defenders,