A recent Supreme Court verdict has set a man free, while setting a troubling precedent about acceptable defences in lèse majesté trials. Myles Gough reports.    

At the base of the steps to the Bangkok Southern Criminal Court near the city’s Chinatown district, a group of about nine people are gathered around a concrete table, their ice coffees and notepads spread across the built-in chess board.

They are here to support 73-year-old Bandhit Aniya, a political and philosophical writer who was arrested in 2003, charged with insulting Thailand’s revered King.

According to Article 112 of the Thai Criminal Code, anyone who “defames, insults or threatens the King, Queen, the Heir-apparent or the Regent shall be punished with imprisonment of three to fifteen years”.

Thailand’s lèse majesté law (as it is known) is designed to prevent insults against the royal family – and to this end, tends to have wide support from the electorate.

But over the last decade, arrests for violations of Article 112 have shot up dramatically. In 2010 there were a staggering 478 cases brought before the courts, compared to just 33 in 2005.

Many of the people who have found themselves on the receiving end of harsh sentences have been journalists and outspoken political activists. But there have also been some relatively ordinary citizens arrested.

Part of the problem is that, because it’s considered an issue of national security, anyone can bring a complaint against another citizen. This accounts to some extent for the sudden upswing in arrests during times of political turmoil.

NGOs and civilian groups say the law, along with the Computer Crimes Act (2007), is being misused to suppress political dissent, and is stifling basic democratic principles such as freedom of speech and freedom of the press.

In August 2011, an open letter to Prime Minister Yingluck Shinawatra from 112 international scholars called on the Thai government to review all arrests and prosecutions under the two laws, to grant bail to those currently incarcerated so they could prepare adequate legal defences, and to “establish mechanisms that eliminate the political abuse of these laws”.

Yet, in its wake, there was little movement. Some commentators speculate this was a survival strategy, as an ill-timed shift in policy might have cost the government critical support.

Later that same year, 61-year-old Ampon Tangnoppaku was sentenced to 20 years in prison for allegedly sending four text messages to a secretary to the Prime Minister. These were deemed by a court to be offensive to the monarchy. In May 2012, the man who became known as “Uncle SMS” died in a prison hospital from complications arising from cancer.

Bandhit, who has been standing accused for more than a decade, was around the same age when he was arrested for distributing his writing and speaking at a seminar about laws relating to political parties, which was organized by Thailand’s Election Commission and Constitutional Court.

His alleged crimes related to three points: a comment implying that the King’s portrait should not appear in courtrooms; another pertaining to royal power and the rule of law; and a third comment about the King’s favourite dog.

He was held in custody for more than 90 days during the trial and was sentenced by the Court of First Instance to serve four years. However, this sentence was suspended because he was deemed to suffer from mental illness, and he was granted bail because he was physically unwell.

Later, this decision was reversed by the Court of Appeal, which deemed he was mentally competent. He was sentenced to two years and eight months in prison, but surprisingly, he was again granted bail – which observers say is highly unusual in lèse majesté cases.

He has been free ever since to await the verdict from the Supreme Court; the verdict will be read out today (Monday February 17) inside a fourth-storey courtroom.

**

I have come to the courthouse with my partner Kate Hehir, an Australian lawyer, and a man named Danthong Breen, a human rights advocate representing the Thailand Union for Civil Liberties. He is an Irish-born, Thai citizen who first came to Southeast Asia in the 1970s to teach physics and telecommunications engineering, but has since become an avid observer (and critic) of the legal process in Thailand.

When we arrive by taxi we are greeted by a compact American man named Peter Koret, who quickly provides us with two photocopied booklets printed in Thai. On the cover of one is a cartoon face depicting Charlie Chaplin, crying a single tear, and the number “112” inside a crossed out circle.

Koret is a former professor of literature and Southeast Asian studies at Berkeley University in California, and came to know Bandhit through his writings, which cover topics such as religion, society and politics – or as Bandhit likes to say, “Real life in Thailand”.

The pair met nearly 30 years earlier when Koret travelled to Thailand as a member of the US Peace Corps. He is the one responsible for posting Bandhit’s bail and is required by law to attend his hearings. “But I would come anyway,” he says, nodding profusely.

Most of the people here are journalists, activists and other citizens who have been affected by Article 112, including the wife and son of Somyot Pruksakasemsuk, the editor of “red shirt” political magazine called Voice of Taksin. He was sentenced to 11 years in prison under the lèse majesté laws in 2013 for publishing a pair of articles authored by other writers. In the wake of his arrest, a large campaign to “Free Somyot” attracted the support of major international NGOs including the International Federation of Journalists and the International Federation for Human Rights (FIDH).

Bandhit is also here. He is standing alone; slightly removed from the others, who are chatting nervously. He is wearing sandals and dark pants, and a white t-shirt with black lettering in Thai script. The words read: “The greatest power in the country is its people”. He’s also carrying a small, brown and white, Yves Rocher travel bag, which contains essential medicine, and the clothing and small personal items he’ll take with him to prison – should the court rule against him.

While his silver hair and missing teeth give away his age, he retains a youthful complexion and a wiry build, and he looks almost mischievous when he smiles – something he’s doing quite a lot. In fact, it’s surprising how much Bandhit seems at ease, considering what’s at stake.

Koret says the calm demeanour and cheerfulness is a “coping mechanism”.

Despite the moral support on hand, it’s considered highly likely that, sometime within the next 90 minutes, Bandhit will be escorted away in handcuffs.

Most present anticipate this outcome, including Bandhit himself.

“I am sure that I will be put in prison today,” he tells me. “And if I am put in prison I will die within seven days.”

He points to his side, just below his ribs. Cancer has been slowly eating away his organs; he has already had a kidney removed, has had major surgery on his bladder, and will require another operation soon. He doesn’t think he’ll get sufficient medical attention in prison, and believes he’ll suffer the same fate as “Uncle SMS”.

**

Shortly after 9 am, with the group of supporters beginning to swell, slightly, we move inside.

The courtroom is not large – it’s maybe 20 paces from the entrance to the Judges’ bench. There are three wooden pews for observers, which fill-up quickly as we wait for the proceedings to begin (and for the arrival of Bandhit’s lawyer, who is stuck in traffic).

Bandhit sits in front of me, with Koret beside him. He thumbs through papers in a brown envelope, then turns suddenly and asks, in English, if I’d like to ask him any questions.

I ask him if he was surprised that he was arrested, and he says yes, because he “didn’t do anything wrong”.

I ask him if he has a family, and he tells me that he has two grown-up children and a wife. They have been separated for close to 20 years, but he insists she’s a wonderful person who has continued to support him through his legal battle.

I ask him how important all the support has been, from the people sitting in the courtroom around us. He says it has kept him alive. He looks at the small, spectacled American beside him and rests his hand on his shoulder: “This is my best friend in the world.”

I ask if he thinks he’s insane and he says no.

“The doctor tells me that I’m mad,” he says.

“I believe that I am good man – more sane than common people.”

Something instinctive, inside me, believes him. Insanity, after all, was the defence run by his lawyer, and so far it’s done a good job keeping him out of prison.

Bandhit says he hopes the verdict will help to bring justice in Thailand – and that “no one else will suffer from Article 112”.

Sufferers, past and present, are sitting amongst us.

Beside me is Panitan Prueksakasethe. He is the only son of Somyot, the imprisoned editor of Voice of Taksin magazine. Panitan – who will later translate the proceedings for me – is a law student at Thammasat University. While his father was in pretrial detention he staged a 112-hour hunger strike protesting his arrest and imprisonment.

Directly behind me sits Chiranuch "Jiew" Premchaiporn. She is the webmaster for an alternative Thai news website called Prachatai, and was charged and found guilty of violating the Computer Crimes Act in 2009 for failing to promptly remove comments from the website, which were considered defamatory to the monarchy. She was given a suspended prison sentence and ordered to pay a THB 20,000 fine. It was a sentence upheld on appeal, and she is now debating whether to take the matter to the Supreme Court.

*

At 9.23 am, a court clerk approaches the members of the audience and instructs us that audio recordings and photographs inside the courtroom are forbidden.

Shortly after 10 am Bandhit’s lawyer finally arrives. Two minutes later the first judge enters. Bandhit stands to address him, and begins by asking for a postponement of the verdict due to his illness. The court denies this request, saying a petition should have been prepared and submitted in advance, and that it is required to deliver the verdict today.

At around 10.19 am the second judge enters the room. He brings with him a sealed envelope, which carries the verdict. As neither judge presided over the Supreme Court appeal or had any part in writing the judgment, what is written on the paper inside is a mystery.

As the second judge moves to open the envelope, Bandhit turns to his best friend and guarantor, and says he wants to “hold someone’s hand” while the verdict is read out. The look in his eye is not quite fear, but something verging awfully close; something uncertain.

To the relief – and surprise – of almost everyone seated on the wooden pews in the courtroom, the final verdict will not see Bandhit taken to prison.

Although he has been found guilty of violating Article 112, the Supreme Court has upheld the initial ruling by the Court of First Instance that he was mentally ill at the time the crimes were committed.

“This is as good as it can get,” says Anon Chawalawan, a representative from the Bangkok-based group iLaw: Internet Dialogue on Law Reform.

This organization, comprising lawyers and researchers, reports on cases relating to freedom of expression in Thailand, hosts a database of popular lèse majesté cases (those that aren’t held in secret, that is) and has a detailed record of Bandhit’s case from beginning to end.

Anon says civilian-led movements to reform the law have previously been shut down because the law is considered important to Thailand’s national security, and can therefore only be amended by Parliament. Yet in Parliament, he says, Article 112 is considered a political “hot potato” and no one is willing to initiate the reform process.

With regards to the verdict in Bandhit’s case, Anon says it “might set the standard that if you want to criticize the monarchy you have to be insane”.

But “at least the verdict can’t be overruled,” he adds.

**

It’s hard to say whether the outcome represents a victory for those opposed to the unjust use of Article 112, or for democracy in Thailand more generally.

It’s troubling that insanity appears to be the only successful defence in these cases, and that other seemingly legitimate strategies – such as arguing freedom of expression, or that a particular comment wasn’t insulting but fair criticism a regarding a matter of public importance – have been largely unsuccessful in recent years.

I wonder whether Bandhit’s age and deteriorating health may have influenced the court’s ruling, and I doubt the outcome will provide any reassurance to political prisoners whose requests for bail have repeatedly been denied.

Still, this is one of only a handful of lèse majesté cases to reach the Supreme Court. And while Bandhit is technically guilty, he is still a free man; free to unpack his brown and white bag in the comfort of his modest Bangkok apartment; free to raise money for his bladder surgery; and free to resume his writing.

And around him, in the hallways of the city’s Southern Criminal Court, there are many smiling faces, as well as handshakes and photographs.

Koret tells me that the outcome was “unexpected” and “rare” – and I believe him, considering what I’ve read about the unsettlingly high conviction rates for lèse majesté crimes, and the many trials conducted in secret.

As we leave the court, walking past television cameras at the base of the steps, I recall something else Bandhit said to me, only moments before the verdict was read. “Even a worm will turn.”

He asked me if I was familiar with the expression and I professed my ignorance.

The phrase, derived from a line in Shakespeare’s play Henry IV, conveys that even the most meek and humble of creatures, when pushed to their limits, will retaliate – and in doing so, can change their fortunes.

“Even a worm will turn,” he repeated, smiling mischievously, before turning serious in a blink. “I must fight for myself.”

Perhaps, then, it was a victory of sorts.

 

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Myles Gough is a Canadian freelance journalist in Bangkok. He has written for Al Jazeera, the Globe and Mail, Australia’s New Matilda website, and COSMOS Magazine. Follow him on Twitter @MylesGough