The Thai Political Prison Notebooks: Ekachai Hongkangwan on LawSubmitted by prachatai on Wed, 17/04/2013 - 10:10
On 28 March 2013, Ekachai Hongkangwan was sentenced to three years and four months in prison for allegedly violating Article 112 by selling CDs which contained an ABC Australia documentary and copies of WikiLeaks documents. He requested bail while he appealed the case, but this request was denied and he is currently behind bars at the Bangkok Remand Prison.
Before his conviction, Ekachai wrote this analysis of the history of law in Thailand, focusing on the various legal measures related to lèse majesté over the past 100 years. Beginning with Rama 5 and the Penal Code of R.S. 127 and then tracing the various iterations of Article 112 from 1956 until the present, he shows how the criminalization of lèse majesté has changed over time. Ekachai then turns to the 2007 Computer Crimes Act and examines how the law provides the state with a range of expanded tools for countering the proliferation of dissident media. He finally turns to amnesty and queries recent draft amnesty bills in light of prior bills. He focuses in particular on when, and how, amnesty for lèse majesté cases has been included in political amnesties.
With this article, Ekachai Hongkangwan joins Thantawut Taweewarodomkul and Somyot Prueksakasemsuk as writers serving sentences for convictions under Article 112. His analysis illuminates the trajectory of punishment for alleged lèse majesté over the last 100 years, and in so doing, offers a specific vision of the history of the relationship between the rulers and the ruled in Thailand. Ekachai’s current location behind bars at the Bangkok Remand Prison only makes his account more acute.
Ekachai concludes his article by discussing the amnesty bills proposed by the Khana Nitirat and the United Front for Democracy against Dictatorship. He notes that although neither of those drafts, nor the other six drafts proposed, mention Article 112 or the 2007 Computer Crimes Act specifically, the cases under them would likely fall into the category of political conflict. He discusses various cases and whether or not the affected person might receive amnesty under a possible bill. Ekachai leaves his own case unremarked upon. Perhaps this is because he had not been found guilty and sentenced to a prison term when he wrote the article. Or perhaps it is because the political nature of his case is clearly apparent.
A History of the Lèse Majesté Law, the Computer Crimes Act, and Amnesties
The development of Article 112
In the past, rule was by an absolute monarchy, in which the king and heir-apparent held all administrative power. The first Siamese-language newspaper was The Bangkok Recorder (หนังสือจดหมายเหตุ), which was run by Dan Beech Bradley (Doctor Bradley) beginning in 1844 (reign of Rama 3). The Bangkok Recorder faced frequent closures and re-openings. During the reign of Rama 5, many newspapers were established and criticism of government policies began to increasingly appear in the newspaper.
On 1 June 1908, Rama 5 promulgated the Penal Code of R.S. 127. The essence of this law’s relation to lèse majesté can be found in these two sections that stipulated:
“Article 98. Whoever dares to threaten or defame the King, the Queen, the Crown Prince, or the Regent during the Regency, shall be punished with imprisonment not exceeding 7 years and fine not exceeding 5,000 ticals.
Article 100. Whoever dares to threaten or defame any member of the Royal Family being the son or daughter of a Sovereign shall be punished with imprisonment not exceeding 3 years and fine not exceeding 5,000 ticals.” (transcribed from the original)
The two articles of law were the first to prescribe punishment for threatening/defaming the King, Queen, Crown Prince, Regent, or Heir-apparent from the past to the present. Therefore anyone who criticized the policy of administration of the country by the King, Queen, Regent, Heir-apparent or Crown Prince, whether in the past or present, necessarily risked violating these two articles of law. These two articles did not extend to “insult” and the protection offered was divided into two degrees. Article 98 applied to the King, Queen, Crown Prince, and the Regent, specifically in the present. Article 100 provided protection to the royal family from time immemorial. Furthermore, there was Article 10, which stipulated that anyone who violated either of these two laws in a foreign country would be punished in Siam.
I would note that these two articles of law carry both a prison term and a fine (the court must punish with both a term and a fine). But there was no minimum punishment. The maximum fine of 5,000 baht was a very steep punishment during those times. When compared with the value of money in the present, it is as high as very many hundreds of thousands of baht. If the accused was unable to pay the fine, then Article 18 applied, which stipulated:
“Article 18. In default of payment of fine within 15 days from the day when the sentence becomes final, the payment may be levied by distress or the offender shall suffer imprisonment in lieu thereof. The term of imprisonment to which the payment of a fine is commuted shall be reckoned at the rate of one tical a day, provided that in no case shall such imprisonment exceed one year.” (transcribed from the original)
It seems to me that although the prison term is not as lengthy as in the present-day law, the fine is very harsh in these 2 legal measures. Many of the accused may have been utterly impoverished. If they did not have the money to pay the fine or could not pay the entire fine, then they had to serve additional time in prison instead of paying the fine at the rate of 1 day per 1 baht. But they were not to serve more than a maximum of 1 year in prison, no matter the amount of the fine that remained unpaid. Therefore, I think that these 2 legal measures were no worse than the present-day law.
After the transformation from absolute monarchy to a democratic regime with the King as head of state in 1932, the majority of administrative power was no longer with the King. It was instead in the hands of the People’s Party.
On 13 November 1956, the government of Field Marshal Phibunsongkhram repealed the Penal Code of R.S. 127 and promulgated the Criminal Code of 1965. The essence of this law’s relation to lèse majesté was in Article 112, which stipulated:
“Whoever defames, insults or threatens the King, Queen, Heir-apparent or Regent shall be punished with no more than 7 years in prison.”
This law was different from the prior law, as the protection offered included “insult” as well. But it reduced the number of people protected to only include the present-day King, Queen, Heir-apparent, and Regent. This was tantamount to repealing Article 100 of the Penal Code of R.S. 127.
I would note that this legal measure repealed the fine. After the passage of more than 100 years the reduction in the value of the money may have made the fine of 5,000 baht perhaps not as horrible as it once had been. But this article did not increase the length of the prison term or delimit a minimum punishment. This law was therefore consequently a reduction in punishment. It marked the first time that this law did not include a fine. Article 7, which specified that anyone who violated this law in a foreign country would be punished in Thailand, remained.
On 6 October 1976, a large number of students/people inside Thammasat University were arrested. Some of those arrested were accused of violating Article 112 of the Criminal Code while performing a play which included a mock hanging to death of two electrical workers in Nakhon Pathom province. Later that evening, the National Administrative Reform Council (NARC) staged a coup.
On 21 October 1976, the National Administrative Reform Council issued NARC Order No. 41. The significant aspect of the order was to stipulate an amendment to Article 112 of the Criminal Code as follows:
“Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished (with) imprisonment of three to fifteen years.”
This order was an increase in the punishment of imprisonment from 7 years to 3-15 years, a two-fold increase and the stipulation of a minimum punishment as well. This marked the first time that there was an increase in punishment and the stipulation of a minimum punishment for this law. Therefore, this order contained the harshest penalty for the lèse majesté law to date.
After the 2006 coup, a large number of people were accused of violating Article 112 of the Criminal Code. Many sectors motioned to make an amendment/adjustment to this measure or to make a new measure. In 2007, the National Legislative Assembly (NLA) proposed a draft Act to Amend the Criminal Code (edition …) B.E. … The essential point of this draft was in Article 3, which stipulated:
“Add the following as Section 1/1. Offences against the Royal Family, Privy Councilors, and Royal Envoys. Article 112/1 and Article 112/2 of the Criminal Code.
Section 1/1. Offences against the Royal Family, Privy Councilors, and Royal Envoys
Article 112/1. Whoever defames, insults or threatens the (royal) sons or daughters shall be punished with a prison term of 1 to 7 years or a fine of 20,000 to 140,000 baht, or both.
Article 112/2. Whoever defames, insults, or threatens the Chair of the Privy Council, Privy Councilors, or the Royal Envoys appointed by the King shall be punished with a prison term of 6 months to 5 years or a fine of 10,000 to 100,000 baht, or both.”
This draft law did not amend/repeal Article 112, but added two additional measures to it in order to expand the range of protection. These 2 measures had a punishment of both a prison term and a fine (the Court could choose either or both). The fine was a moderate amount. A minimum punishment was stipulated. As Article 112/1 offered protection to the present-day Heir-apparent (it did not include the past), it was similar to Article 100 of Penal Code of R.S. 127. Article 112/2 provided protection to the Privy Councilors and the Royal Envoys.
I would make the observation that it is odd that Article 112/2 provided protection to the president of the Privy Council, the Privy Councilors, and the Royal Envoys (these positions can be filled by ordinary people) along with the King and the Heir-apparent.
If the accused is unable to pay the fine, s/he must be punished as stipulated in Article 30 or Article 30/1:
“Article 30. For detention in lieu of a fine, the rate of one day per 200 baht shall be used. Whether it is the case of one offence or multiple offences, there can be no detention greater than a period of 1 year. An exception is cases in which the Court sentences a fine greater than 80,000 baht. The Court then can then order detention in lieu of a fine for a period longer than 1 year but not longer than 2 years.
Article 30/1. In the event that the Court sentences a fine less than 80,000 baht, and the person sentenced is not a juristic person and does not have the money to pay the fine, s/he can submit a petition to the Court of First Instance that ruled in the case to request community service or public interest service in lieu of the fine.”
From these 2 measures it can be observed that if a defendant is fined less than 80,000 baht and is unable to pay the entire fine, s/he will have to serve a person term in lieu of paying the fine at the rate of 1 day per 200 baht. But s/he will not go to prison for a term greater than 1 year, no matter how great an amount of the fine remains. For fines greater than 80,000 baht, the maximum prison term served will be no greater than 2 years, whether or not the fine has been fully paid. Additionally, there is still the opportunity for defendants punished with a fine less than 80,000 baht to request community or public interest service in lieu of a fine or prison term.
A large number of people inside and outside the country opposed this draft law. Many people thought that it was inappropriate that ordinary people were protected along with the royal family. As a result, the NLA ultimately withdrew this draft law.
In 2008, the government of Samak Sundaravej attempted to propose a draft amendment to the Criminal Code (edition ....). The essence of this draft law was in the 3 measures that stipulated:
“To add the following text as Article 112/1 of the Criminal Code
Article 112/1. Whoever knows that there is an on offence against Article 112 who does not report it to the investigative authorities, but speaks about or disseminates it in public or brings it to the people, in order to discredit, insult, or cause others to be abhorred in order to gain political advantage, shall be punished as is prescribed in Article 112”
This draft law did not amend/repeal Article 112 of the Criminal Code, but augmented it with an additional measure in order to penalize those who used Article 112 to slander other people in order to gain political advantage. The measure used the provisions for punishment in Article 112 in order to do so. But many sectors thought that this draft made Article 112 even worse. Ultimately, the person who proposed the draft law agreed to withdraw it.
In 2011, the Khana Nitirat proposed a Draft Amendment to the Criminal Code (edition ...) B.E. ... The essential point of this draft law was in the two measures that stipulated:
“Article 3. Nullify Article 112 of the Criminal Code.
Article 4. Add the following text characterized by ...offences related to the honor of the King, Queen, Heir-apparent, and the honor of the Regent. Article … article …article… article … article… and article … of the Criminal Code.
Characterized by …
Offences related to the honor of the King, Queen, Heir-apparent and the honor of the Regent
Article … Whoever defames the King shall be punished with a prison term no greater than 2 years or a fine no greater than 50,000 baht or both.
If the offence of defamation in accordance with the first paragraph was libelous, the perpetrator shall be punished with a term no greater than 3 years or a fine no greater than 400,000 baht or both.
Article … Whoever insults or threatens the King shall be punished with imprisonment no greater than 1 year or a fine of 20,000 baht or both.
Article … Whoever defames the Queen, Heir-apparent, or Regent shall be punished with imprisonment no greater than 1 year or a fine of no more than 30,000 baht or both.
If the offence of defamation in accordance with the first paragraph was libelous, the perpetrator shall be punished with imprisonment no greater than 2 years or a fine no greater than 300,000 baht or both.
Article … Whoever insults or threatens the Queen, Heir-apparent, or Regent shall be punished with imprisonment no greater than 6 months or a fine no greater than 10,000 baht or both.
Article … Whoever in good faith criticizes, expresses an opinion or expresses statements in order to uphold the democratic system of government with the Monarch as Head of State under the Constitution, in order to protect the Constitution, for academic purposes or for the public interest, shall not commit an offence of defaming the King, or defaming the Queen, Heir-apparent, or Regent.
Article … In the case of a defamation offence characterized by ... if the person accused of committing such an offence can prove that the statement made is true, he or she shall not be punished.
If the accusation is an offence concerning the royal person or personal affairs, and the proof does not serve public interest, the proof shall not be permitted.
Article … The general public shall be barred from filing a complaint that an offence has been committed pertaining to the honour of the King, the Queen, the Heir-apparent and the Regent.
The Office of His Majesty's Principal Private Secretary should be the complainant regarding offences pertaining to the honour of the King, the Queen, the Heir-apparent and the Regent."
This draft law was a proposal to repeal Article 112 of the Criminal Code and to include new characterizations within law, as “Offences characterized as being related to the honor of the King, Queen, Heir-apparent, and the honor of the Regent.” There are seven categories which separate defamation and insult/threat, and separate the king/queen/heir-apparent and regent from one another. In addition, libelous actions, exemptions of action not characterized as an offence, and who can file a complaint are included as well.
I would offer the observation that these 7 legal measures are a reduction in the punishment of imprisonment in Article 112 by more than half. Instead, there is an increase in the fine, but it is reasonable. No minimum punishment, for either length of imprisonment or fine, is included.
On 29 May 2012, the Campaign Committee to Amend Article 112 (CCAA 112) submitted over 40,000 names in support of this draft law to Parliament. But Parliament refused to examine the draft. In support of their refusal, they claimed that Article 112 is in category 2 [of laws in the Criminal Code] and the people are not given the power to amend it.
In 2012, Somyot Prueksakasemsuk (accused of violating Article 112 by editing Voice of Taksin magazine) and I (accused of violating Article 112 by selling videos of the Foreign Correspondent program and Wikileaks documents) submitted a petition to the Constitutional Court for comment on whether or not Article 112 of the Criminal Code was in contravention to the Constitution.
On 10 October 2012, the Constitutional Court issued comment 28-29/2555 (Somyot and I submitted separate petitions, but the Constitutional Court examined them together). They commented that Article 112 is not at all in contravention to Article 3 (2) (it is in accordance with the rule of law), Article 8 (it is consistent with providing protection to the king), Article 29 (the punishment is proportionate and applies generally) and Article 45 (1-2) (no effect upon freedom of expression). Therefore, Article 112 continues to be in force.
The 2007 Computer Crimes Act
The 2007 Computer Crimes Act was a draft law that was proposed during the government of Police Lieutenant Colonel Thaksin Shinawatra. But the coup occurred before the examination of the law was concluded.
Subsequently, the government of General Surayut Chulanont pushed this draft law to the NLA and it came into force on 10 June 2007. The essence of this law’s relation to lèse majesté can be found in these two sections that stipulate:
Section 14. If any person commits any offence of the following acts shall be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht or both:
(2) that involves import to a computer system of false computer data in a manner that is likely to damage the country’s security or cause a public panic;
(3) that involves import to a computer system of any computer data related with an offence against the Kingdom’s security under the Criminal Code;
(5) that involves the dissemination or forwarding of computer data already known to be computer data under (1) (2) (3) or (4);
Section 15. Any service provider intentionally supporting or consenting to an offence under Section 14 within a computer system under their control shall be subject to the same penalty as that imposed upon a person committing an offence under Section 14.
These 2 legal measures were an attempt by the rulers to promulgate a new law in order to control lèse majesté from spreading on the internet, because it could not be addressed by Article 112. In addition, Article 17, which specified that anyone who violated this law in a foreign country would be punished in Thailand, as with Article 112, applied.
In 2011, the government of Abhisit Vejjajiva attempted to propose a draft Computer Crimes Act, B.E. …. in order to repeal the original law and use a new one instead, even though the original law had been in force for less than 4 years. The essence of this law’s relation to lèse majesté was in Article 24 which was essentially the same as Article 14 of the 2007 Computer Crimes Act. As regards Article 27 [of the new Act], it was an amendment of Article 15 of the 2007 Computer Crimes Act, to not punish the service providers or people who monitored the systems unless it was found that they deliberately supported or did not take action to prevent the distribution of computer information in accordance with Article 24. In addition, Article 29, which specified that anyone who violated this law in a foreign country would be punished in Thailand, similar to Article 17 of the 2007 Computer Crimes Act, was retained. Although Article 27 of the new draft law seemed to be better than the old law, the new draft law had an extensive underlying hidden agenda. For example, under the old law, only the person who carried out an action [of lèse majesté], the person who distributed [the lèse majesté], and the person who looked after the computer system [containing the lèse majesté], could be charged. But the new draft law extended to cover people who possessed these files, no matter their intention.
If the new draft law went into force, I believe a large number of people would face trouble. The vast majority of computers that are connected to the internet would meet the standard of wrongdoing under the new draft law. The new draft law then was strongly opposed by many sides and ultimately the government withdrew it.
In 2012, Katha (last name withheld) (a defendant accused of posting a message on a website and violating Article 14 (2) of the Computer Crimes Act) submitted a petition to the Constitutional Court requesting comment on whether or not Article 14 (2) of the Computer Crimes Act contravened the Constitution.
On 13 September 2012, the Constitutional Court issued an order stating that they would not accept Khatha’s petition. The reason they offered was that the intention of Article 14 (2) of the Computer Crimes Act is to protect the country’s national security of the country and collective public order in line with the rule of law. Allocating criminal wrongdoing to individuals through the criminal justice process is correct and just for all parties in line with Article 40 (3) of the Constitution. Therefore, the defendant’s argument was without substance and should not be commented upon.
Amnesty for Lèse Majesté
I examined the prior amnesty laws and found 3 amnesty laws which constituted an amnesty for Articles 98 and 100 of the Penal Code of R.S. 127 and Article 112 of the Criminal Code. There have not been any laws which provide an amnesty for the Computer Crimes Act.
On 24 June 1932, the People’s Party fomented a transformation from a regime of absolute monarchy to a democratic regime with the king as head of state. They did so through seizing key government sites and holding members of the royal family, high-ranking nobles, and civil servants on the government’s side hostage at the Ananta Samakhom Throne Hall. Subsequently, Colonel Phraya Phahol Pholphayuhasena read the first proclamation of the People’s Party, which announced the end of the absolute monarchy and the establishment of a state with a constitution in Siam. Those who preferred the prior regime viewed the actions and this announcement of the People’s Party as “lèse majesté.”
At that time, Rama 7 was at Klai Kang Won Palace in Hua Hin, Prachuab Khiri Khan. After the People’s Party seized power, Lieutenant Commander Luang Supachalasai took a letter to Rama 7, requesting he return to Bangkok to be a King under the Constitution of the People’s Party.
On 26 June 1932, the People’s Party led by Lieutenant Colonel Phraya Prasat Pitayayut, Major Luang Wirayothin, Luang Praditmanutham, Prayun Phamonmontri, Charoon na Bang Chang, Songwon Tularak and Rear Admiral Phraya Sorayut Seni went to meet with Rama 7. The negotiations were tense. The People’s Party proposed that Rama 7 should accept the constitution of the People’s Party and from now on serve as King under the Constitution. Additionally, the People’s Party discussed having Rama 7 pardon the People’s Party for the transformation of rule they launched. On 26 June 1932, the Royal Decree of Amnesty on the Occasion of the Change of Rule, B.E. 2475, was issued. The essence of this decree was in the 3 measures that stipulated:
“The entirety of the actions of those in the People’s Party, if they were in violation of the law, are not violations of the law.”
It is clear from the essence of this measure that the People’s Party was given an amnesty against all accusations, including Article 98 and 100 of the Penal Code of R.S. 127. Therefore, this royal decree was the first law to provide an amnesty for lèse majesté.
In 1976, Bunchat Sathienthammanee, the person who organized the play which included a mock hanging to death of two electrical workers in Nakhon Pathom, was prosecuted for lèse majesté and other charges (Black Case No. 4418/2520 of the Criminal Court). He chose to fight the case and did not receive bail.
On 15 September 1978, the government of General Kriangsak Chamanan passed the “Amnesty for those who committed offences in the demonstrations at Thammasat University between 4 and 6 October 1976.” The essence of this law with respect to amnesty for lèse majesté was in Article 4, which stipulated:
“Article 4. For the Bangkok Military Court to release all of the defendants charged in Black Case No. 253 k/2520 of the Bangkok Military Court (Using the 6 October 1976 regulation) and for the Criminal Court to release all of the defendants charged in Black Case No. 4418/2520 of the Criminal Court.”
It is clear from the essence of this measure that it was an amnesty for Criminal Court Black Case No. 4418/2520, which was a case of violations of Article 112. It resulted in the court striking the case without rendering a judgment. Consequently, Bunchat Sathienthammanee was released.
On 24 August 1989, the government of General Chartchai Choonhavan issued an amnesty for those whose actions were a violation of national security of the state in the kingdom following the Criminal Code and offences under the Anti-Communist Activities Act of 1989.
Article 3 stipulated:
“All of the actions carried out by persons before 2 July 1988 , if these actions were the following offences:
(1) Offences against the security of the state in the kingdom in accordance with the Criminal Code;
(2) Offences in accordance with the Anti-Communist Activities Act;
(3) Other offences carried out with the offences in (1) or (2); specifically those actions which are not offences in accordance with the Criminal Code. Let those who carried them out be free from being offenders. If a final judgment has been rendered in the Court, let the person’s offence and guilt be expunged. If the person has already been punished, let their punishment be concluded.”
Even though the essence in Article (1) seems like it was an amnesty for violations of Article 112, I did not find anyone who received an amnesty directly from this law.
On 13 July 1986, Wira Musikapong spoke at an election rally for a Democrat Party MP candidate in Satuk district and Lamplaemat district in Buriram province. He was subsequently accused of violations of Article 112 for this speech.
On 22 July 1988, the Court sentenced him to 4 years in prison on charges of violating Article 112. But he received a royal pardon after he served only 1 month in prison. This law was not a direct amnesty for him. But it was an indirect amnesty, as this law stipulated that those who had been punished for violating Article 112 could have their offence expunged. The effect was that Wira was once again able to enter politics.
In addition to this, there have also been amnesties through a request for a royal pardon. These include individual petitions (in accordance with Article 259 of the Criminal Procedure Code), such as Suwicha Thakor (2010) and Lerphong or Joe Gordon (2012) and the Royal Pardon Decree (in accordance with Article 261 bis of the Criminal Procedure Code), such as Suriyan and Suchat Nakbangsai (real name Warawut Thanangkorn) (Royal Pardon Decree 2012).
Drafts of Amnesty Laws 2012-2013
Among all 8 of the draft amnesty laws proposed by various sectors during the past 2 years, there is not even one that mentions amnesty for lèse majesté or Article 112 of the Criminal Code/Computer Crimes Act at all. Yet it may be incorrect to conclude that these amnesty laws do not provide an amnesty for lèse majesté.
I have examined the 8 draft amnesty laws and found 2 drafts of interest. These are the Draft Constitution for Amnesty and Eliminating the Conflict (proposed by the Khana Nitirat in 2013, timeframe of 19 September 2006 -- 9 May 2011) and the Draft Act for Amnesty for People Imprisoned and Undergoing Prosecution Resulting from Political Conflict from 1 January 2007 until 31 December 2011 (proposed by the UDD in 2013, timeframe of 1 January 2007 – 31 December 2011).
Article 291/3 of the draft law of the Khana Nitirat stipulates that “Those actions that have a cause related to or connected to political conflict” and Article 3 of the draft law of the UDD stipulates that “Criminal offences that resulted from political conflict.” Upon examination of these two drafts, I am certain that these are amnesties for lèse majesté, but not that every case of lèse majesté can be covered by the amnesty from these two draft laws.
In 2009, Katha, a former broker at a security company was accused of violating the Computer Crimes Act by posting false text about the health of the king on a website.
I think that his case can be considered a “lèse majesté” case and it is in the timeframe covered by these two amnesty laws. But the testimony in this case did not reveal that he was involved in the demonstrations or political conflict. Therefore, he is unlikely to receive amnesty under these two amnesty laws.
In 2003, Bandit Aneeya, the pen name of an independent translator, spoke at a seminar on “Political Party Law: Opportunities and Limitations in Promoting and Developing Political Parties” at the Election Commission of Thailand (ECT). He distributed two documents to the audience. He was subsequently accused of violating Article 112. I think that his was a “lese majesté” case, but it did not take place in the timeframe delimited by these 2 amnesty laws and the cause was not at all related to the demonstrations or political conflict. Therefore, he is unlikely to be granted amnesty from these 2 amnesty laws either.