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UPDATE (Thailand): Community radio thrown into doubt after farmer convicted of illegal broadcasting

February 8, 2006

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION- URGENT APPEALS PROGRAMME

Update on Urgent Appeal

8 February 2006

[RE: UA-197-2005: THAILAND: Farmer taken to court in challenge to community radio]
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UP-024-2006: THAILAND: Community radio thrown into doubt after farmer convicted of illegal broadcasting

THAILAND: Declining freedom of speech; media concentration
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Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the case of a farmer who was running a community radio station in accordance with provisions of the 1997 Constitution of Thailand but was subsequently taken to court on charges of illegal broadcasting under a law that predates the constitution. The verdict on the case was given on 7 February 2006 and the farmer was given a suspended sentence of four months imprisonment and a fine of 40,000 baht (USD 1000). However, the farmer was sentenced on the basis of a law that appears to conflict with the 1997 Constitution. As the conviction of this farmer amounts to yet another attack on the fragile right of freedom on expression in Thailand, please support further action against the decision.

Sathien was charged under the Radio Telecommunications Act BE 2498 (1955), with "possessing and operating a radio transmitter without permission" and of "setting up a radio station without permission". During the trial, in his defence, Sathien argued that the station operated in line with section 40 of the 1997 Constitution, which states that radio and television transmission frequencies are national resources for use in the public interest. But the court ruled that although this maybe the case as of yet there is no independent regulatory body in operation to distribute the frequencies, and therefore the constitution cannot be enforced. According to a court observer, the judge stated in his decision that:

"The defendant claims to enjoy the rights under the constitution, but it shall be seen that such rights can only be applicable under specific laws. That means there shall be laws to enforce rights."

But such laws do not currently exist. Therefore, the court based its judgment on the outdated Radio Telecommunications Act.

The court is quoted as having said that under section 80 of the Wavelength Regulator Act BE 2453 (2000), which was set up to enforce the 1997 Constitution, "The government is not allowed to allocate any new frequency or issue any new permit for radio broadcasting. Therefore, the defendant shall not be allowed to set up community radio." The court found the defendant guilty because he knew the Radio Telecommunications Act prohibited the setting up of radio broadcasting and still knowingly committed an illegal act.

Sathien was sentenced to six months imprisonment and a fine of 60,000 baht. This was reduced to a four-month imprisonment and a fine of 40,000 baht. His jail term was suspended for two years and his radio transmitter confiscated.


BACKGROUND INFORMATION:

According to section 40 of the 1997 Constitution of Thailand, radio broadcasting in encouraged for the public interest. Sathien Janthorn set up his community radio with the help of government funding from the Ministry of Finance under the Social Investment Fund provided by the World Bank in May 2002. He was given training by staff of the Public Relations Department on how to run a radio station. Ironically, this is the same agency that subsequently took legal action against him, apparently initiated by his broadcasts alleging provincial government corruption (see further UA-197-2005.)

In principle, Sathien should have grounds to appeal that the fault for not being registered as a community radio station lies not with him but with the government. The regulatory body envisaged under section 40 of the constitution should have been set up. Instead, the government of Thailand has failed to introduce a licensing regime in accordance with the constitution, and by default has kept community radio stations in an ambiguous legal position. (For further comments, see AS-021-2006.)

The judgment in this case has serious implications for hundreds of community radio stations in Thailand which have been created thinking that they were legal on the basis of the 1997 Constitution. If they are considered ‘illegal’ then the only source of radio broadcasting would be radios controlled by the government. Freedom of expression in radio broadcasting would be severely jeopardized.

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SUGGESTED ACTION:
Please write to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and the Special Representative on Human Rights Defenders urging them to closely monitor this case as a matter of special concern. Please also call for the Thai government to ensure that there are no further violations on the freedom of speech and to ensure that the Wavelength Regulator Act is fully implemented, in view of Thailand's obligations under international law.

Suggested letter:

Dear Mr. Ligabo

THAILAND: Serious concerns over sentencing of farmer Sathien Janthorn by Angthong Provincial Court for illegal broadcasting

Name of victim: Sathien Janthorn, 55, farmer residing in Baan Bornam, Twearat sub-district, Chaiyo district, Angthong province, Thailand
Charges: Illegal possession and operation of a radio transmitter, and broadcasting without a licence under articles 4, 6 and 11 of the Radio Telecommunication Act BE 2498 (1955); carrying a maximum penalty of 100,000 Thai baht fine and/or five years’ imprisonment.

I am writing to voice my dismay regarding the verdict in the case of Sathien Janthorn who was accused of illegally possessing and operating a radio transmitter. The judgment was based on the Radio Telecommunication Act BE 2498 (1955) which is outdated and appears to conflict with the 1997 Constitution of Thailand.

Sathien Janthorn is a farmer who set up his own community radio in his home. In 2001, he received funding from the Finance Ministry, through a World Bank programme which enabled him to buy a community radio transmitter. Sathien was trained by the government Public Relations Department on how to run his radio station. However, this same department subsequently took legal action against Sathien, apparently initiated by his broadcasts alleging provincial government corruption.

During the trial, in his defence, Sathien argued that his community radio station was legally set up in accordance with section 40 of the 1997 Constitution. But the court ruled that due to the fact that no independent regulatory body has been created then this constitutional right cannot be enforced. The court based its judgment on the outdated Radio Telecommunication Act and found the defendant guilty because he knowingly infringed that law. Mr. Sathien was sentenced to six months imprisonment and a fine of 60,000 baht. This was reduced to a suspended term of four months and a fine of 40,000 baht.

This case highlights a major problem with the 1997 Constitution of Thailand. While the constitution exists on paper, citizens are subjected to old laws until they are revised through new organic laws and institutions. There is at present no practical way for a person in Thailand to make a complaint or defend their rights under the constitution directly through the courts. Nor is there any way that the constitutional provisions can be invoked directly in a court and a judgment made on the basis of the constitution.

In principle, Mr. Sathien should have grounds to appeal that the fault for not being registered as a community radio station lies not with him but with the government. The non-existence of a regulator is the fault of the Government of Thailand. Mr. Sathien's action was deemed illegal due to the negligence of the government, not because of any actions or omissions on his part. 

I therefore urge you to closely monitor this case as a matter of special concern, and communicate your concerns directly to the Government of Thailand. Please urge it to ensure that the Wavelength Regulator Act BE 2543 (2000), which was introduced to enforce the provisions of the 1997 Constitution, is properly introduced without delay, and with regard to Thailand's obligations under international law.

In this regard I would remind you of the recent comments of the UN Human Rights Committee in assessing Thailand's compliance with the International Covenant on Civil and Political Rights, that [Thailand] "should take adequate measures to prevent further erosion of freedom of expression, in particular, threats to and harassment of media personnel and journalists" [CCPR/CO/84/THA, para. 18]. 

I trust that you will pay special attention accordingly.

Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:

1. Mr. Ambeyi Ligabo
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
c/o J Deriviero
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9177
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR FREEDOM OF EXPRESSION)
Email: jderiviero@ohchr.org or urgent-action@ohchr.org 

2. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Attn: Melinda Ching Simon
Room 1-040, c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 93 88
Fax: +41 22 917 9006 (ATTN: SPECIAL REPRESENTATIVE HUMAN RIGHTS DEFENDERS)
E-mail: MChingSimon@ohchr.org

PLEASE SEND COPIES TO:

1. Pol. Gen. Chidchai Wanasatidya
Minister of Justice
Office of the Ministry of Justice
Ministry of Justice Building
22nd Floor
Chaeng Wattana Road
Pakkred, Nonthaburi
Bangkok 11120
THAILAND
Tel: +662 2 502 6776/ 8223
Fax: +662 502 6699/ 6734 / 6884
Email: ommoj@moj.go.th; chidchai@moj.go.th 

2. Pol. Lt. Col. Dr Thaksin Shinawatra
Prime Minister
Government House
Pitsanulok Road, Dusit District
Bangkok 10300
THAILAND
Fax: +66 2 282 8631 or 66 2 629 8213
E-mail: thaksin@thaigov.go.th, govspkman@mozart.inet.co.th

3. Mr. Dussadee Sinchirmsiri
Director-General
Public Relations Department
Rama VI Road, Soi 30
Bangkok 10400
THAILAND
Tel: +66 2 618 2323 ext. 1700
Fax: +66 2 618 2358
E-mail: prforeign@prd.go.th

4. Mr Pachara Yutidhammadamrong
Attorney General
Office of the Attorney General
Lukmuang Building
Nahuppei Road
Prabraromrachawang, Pranakorn
Bangkok 10200
THAILAND
Tel: +662 224 1563/ 222 8121-30
Fax: +662 224 0162/ 1448/ 221 0858
E-mail: ag@ago.go.th, oag@ago.go.th 

5. Prof. Saneh Chamarik
Chairperson
The National Human Rights Commission of Thailand
422 Phya Thai Road
Pathum Wan District
Bangkok 10300
THAILAND
Fax: +66 2 219 2940
E-mail: commission@nhrc.or.th, saneh@nhrc.or.th 

Thank you

Urgent Appeals Programme
Asian Human Rights Commission

Document Type :
Urgent Appeal Update
Document ID :
UP-024-2006
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.