It has become increasingly clear over the past week since the imposition of Martial Law nationwide followed by the coup that one of Thailand’s most draconian and abused laws, the lèse majesté law or Article 112 of the Penal Code, is being used to persecute anyone who voices opposition to the coup.
The law itself has seen a spike in usage since the political havoc engendered in the past eight years after the 2006 coup. Any Thai citizen is eligible to bring a case against any person for allegedly making any offensive remarks or gesture against the King, the Queen, the Heir-apparent, or the Regent. The defendant if found guilty is slated to be jailed for at least three years (maximum 15 years). It has been typical that those convicted of lèse majesté law so far have been each handed a sentence of five years of imprisonment per count. Most of them have been denied bail during the pretrial period and there have been instances in which the Court decided to conduct the hearings behind closed doors. Many existing regulations and practices have led to the severe abrogation of the accused’s right to defense in lèse majesté cases in Thailand.
In addition, for nearly a decade, the anti-Thaksin factions (and recently an anti-government group, the People's Democratic Reform Committee – PDRC) have accused their political opponents, in particular the Red Shirts and their sympathizers, of plotting to overthrow the monarchy. Thus, most lèse majesté litigations between private parties have been launched by the ultra-royalists against their political rivals. Given the sensitivity of such litigation and the issues concerning monarchy and royalty in Thailand, it is hard for those accused of committing such an offence to defend themselves properly. Worse, there have been McCarthyesque smear campaigns and witch-hunts launched by these civic/ultra-royalist groups to distort information to persecute people. Any activities critical of the monarchy, i.e. recent campaigns to call for the amendment of Article 112 to ensure its proper use and its proportionality in terms of penalty rate, have been viewed as an offensive act against the most revered institution in Thailand.
Persecution against academics/activists demanding amendment of Article 112
Right after the 2014 coup, the National Council for Peace and Order (NCPO) has issued several Notifications to expand the Military Court’s jurisdiction over cases against civilians including lèse majesté cases. One of the most important documents is NCPO Notification no. 37/2557 which sees the expansion of the Military Court’s jurisdiction over criminal offences carrying severe penalty terms. In addition to the expansion of jurisdiction, the Notification also enables hearing of cases ex post facto for any “related” offences that have been committed prior to the invocation of the Notification (see the “Guidelines issued by the Supreme Court of Thailand over the jurisdiction of military court over certain criminal hearings” and the “NCPO Notification no. 37/2557” below).
Thus, after the coup, apart from those hard-core Red Shirts who have been arrested on spot or summoned and then detained by the military, a number of academics and activists involved in the campaign for amendment of Article 112, the lèse majesté law in Thailand, have been persecuted by the military. Assoc. Prof. Worachet Pakeerut and Ms. Sawatree Suksri, lecturers of the Faculty of Law, Thammasat University and members of the Nitirat Group, were summonsed to report themselves to the military very soon on after the coup. Similarly, Prof. Somsak Jeamteerasakul, a history lecturer from Thammasat University has received a summons. Even students who are active in the campaign for the amendment of the draconian and repressive law including Mr. Sarun Chuichai, aka “Aum Neko”, was summoned during the same time and apparently for the same reason, too. All of them have decided to stay in hiding and some have decided to go into exile (Somsak).
In addition, several former convicts on lèse majesté charges who have been released either after serving their terms or receiving royal pardons have also been summonsed by the military.
1ST SGT Apichart Pongsawat, a postgraduate student at Thammasat University, was first arrested on 23 May 2014, one day after the coup, for holding a banner against the coup. After several days in military custody, he was brought to the Criminal Court on 30 May, apparently for being indicted for a breach of NCPO Notification no. 7/2557 which bans any political gatherings of five or more persons. In the morning, there was no other charges against him, apart from the breach of the NCPO Notification, but in the afternoon, another charge of lèse majesté and violation of Computer Crime Act B.E. 2550 was added to his indictment. The military officials who accompanied him to the Court reportedly said that they have received additional material from a civic group and found it sufficient to also file another complaint against him on a lèse majesté charge. Mr. Pongsawat has thus become the first anti-coup protester who has been indicted with charges both for the violation of the NCPO Notification and lèse majesté law, and both of his cases shall be heard by the Military Court owing to the issuance of the NCPO Notification no. 37/2557 to expand jurisdiction of the Military Court over cases against civilians, even though the alleged offence has taken place much before the invocation of the NCPO Notification to authorize the Military Court to hear criminal hearings against civilians.
Meanwhile the hearings of similar cases in the Southern Border Provinces, even in areas where the Emergency Decree or the Internal Security Act is in place, continue to be conducted by normal Courts of Justice, according to another NCPO Notification.
The short-circuit of the judicial process
In Thailand, the military justice system has only one level of court-martial and no appeals can be made. Its pretrial and other procedures are stricter than a civilian court1 This is a violation of the right to fair trial which is guaranteed by both the Thai Constitution and international laws including the International Covenant on Civil and Political Rights (ICCPR). In recent years, the Computer Crime Act has been used in tandem with the lèse majesté law to even make it difficult for an accused to defend themselves. There are no clear procedures as to the acquisition of evidence and hearings on cyber crime. Also, during the imposition of Martial Law, procedures are prone to be abused or altogether overridden, and arbitrarily enforced.
For example, on 25 May 2014, a combination of military and police forces raided the residence of Ms. Sukanya Pruksakasemsuk, wife of Somyot Pruksakasemsuk, editor of “Voice of Taksin”, who has been sentenced to eleven years in jail on lèse majesté charges. She, her daughter and her son were held in military custody for seven hours, despite their apparently not being actively involved with any political factions, and any activities against the monarch. Their six computers and other mobile communication devices have been seized by the military and not returned yet. It paves the way for tampering with evidence, since illegal data can be planted on their devices.
Also, reportedly, several anti-coup protesters have complained about their mobile devices being seized upon their being held in custody and the military officials have used the devices to access their “friends” in online social networks. Given that Facebook and Line have been quite popular and used as a tool to mobilize among political groups, many are being made vulnerable by the authorities seizure and use of such devices to trap and to track down more people to be either summoned or arrested.
Targets of ultra-royalists
The situation in the provinces is even worse. In Bangkok, written summonses are issued and declared publicly. But upcountry, such as in Chiang Mai, Khon Kaen, Maha Sarakham, Ubon Ratchathani, etc, there have been reports of anti-coup academics, students and activists who have been “invited” to the local military posts and/or held in custody without any prior knowledge, since no written Notifications have been made. Several academics and activists, after receiving phone calls from the military, have decided to stay in hiding since they were not sure about the terms and conditions of the deprivation of their liberty and the motives of the summons. Several academics summoned are not actively involved with either the Yellow or Red Shirt factions.
In Chiang Mai, Book Re:public is a popular bookshop and a venue used by activists to hold a range of activities in addition to political ones. Since the past week, academics and activists involved with the running of the bookstore have been on the run after they have been contacted by the military officials. They fear that the real motive of the military authorities is to incriminate them on lèse majesté offences, since Book Re:public was involved in the campaign to collect signatures of those supporting the Bill to have Article 112, the lèse majesté law, amended. Also, it was attacked in a smear campaign led by ultra-royalists prior to the coup. The bookshop has been accused by ultra-royalists as a breeding ground for anti-monarchy activists and activities. And though this allegation cannot be substantiated with any sound proof, campaigns have been launched against the bookshop in social media.
Guidelines issued by the Supreme Court of Thailand over the jurisdiction of military court over certain criminal hearings
30 May 2014: The Office of the Court of Justice issued a document concerning the order of the President of the Supreme Court no.40/2557 to set up the Committee to Review Matters Concerning Law Enforcement during the Seizure of the National Administration Power.
It was concluded during the meeting regarding the implications of the Notifications made by the National Council for Peace and Order (NCPO) on the functioning of the Court of Justice as follows;
1. Regarding the proposal to ask the Constitutional Court to review the NCPO Notification no. 11/2557 regarding the termination of the Constitution of the Kingdom of Thailand which provides for the cease of the Constitution of the Kingdom of Thailand except for Chapter 2, and whether such provision is constitutional or not.
“It is deemed that since the Constitution no longer exists, it is not possible anymore to decide if any legal provisions are in compliance with the Constitution or not. Therefore, if the Court receives a request (to seek the review of constitutionality by the Constitutional Court), it should reject such a request”
2. Regarding cases under jurisdiction of the military court as per the NCPO Notification no. 37/2557 regarding “Offences in Jurisdiction of the Military Court”, some observations have been made during the meeting regarding the NCPO Notification no. 37/2557 as follows;
2.1 The Notification authorizes the military court to have jurisdiction to hear cases in which a civilian stands as an accused.
2.2 Offences under jurisdiction of the military court as per the Notification include;
1) Offences against the King, the Queen, the Heir-apparent, or the Regent, as per Articles 107-112 of the Penal Code
2) Offences against national security as per Articles 113-118 of the Penal Code, except in Southern Border Provinces where the Internal Security Act B.E. 2551 and/or the Emergency Decree on Government Administration in States of Emergency B.E. 2548 is effective, all cases shall be tried in a civilian court.
3) Offences related to a breach of Notifications or Directives of the NCPO including the NCPO Notification no. 7/2557 regarding “Prohibition of Political Assembly” and the NCPO Notification no. 25/2557 regarding “Summonses for Reporting or Reasons for not being able to Report Oneself”.
2.3 The offences must have been committed within the territory of the Kingdom and from 25 May 2014 onward.
2.4 Jurisdiction over juvenile delinquents shall remain vested in the Juvenile and Family Court as per the NCPO Notification no. 43/2557.
3. Regarding cases under jurisdiction of the military court as per the NCPO Notification no. 38/2557 regarding “Cases derived from multiple offences under the jurisdiction of the military court”, it was noted in the meeting that the NCPO Notification no. 38/2557 expands jurisdiction of the military court to cover any other offences related to the offences specifically mentioned in the NCPO Notification no. 37/2557.
“Therefore, any offences committed prior to 25 May 2014 or any other offences other than those specifically mentioned in the NCPO Notification no. 37/2557, all of them shall fall under jurisdiction of the military court, if they are related offences. For example, if the defendant has participated in a political assembly after 25 May 2014, which is an actionable offence according to the NCPO Notification no. 7/2557 (and falls under jurisdiction of the military court), and if it happens also that the same defendant has earlier committed an arson which is an offence as per Article 217 of the Penal Code (which normally falls under jurisdiction of the Court of Justice), though an arson is an unique offence and normally does not fall under jurisdiction of the military court according to the NCPO Notification no. 37/2557, but since the offence is related to another offence regarding the participation in political assembly which falls under jurisdiction of the military court, therefore, the military court shall have power to try the person on arson charges as well.”
Full document available in Thai here: http://www.isranews.org/isranews-news/item/30014-sanyutitum_01.html
The NCPO Notification no. 37/2557
Offences under jurisdiction of the Military Court
In pursuance to the imposition of Martial Law countrywide since 22 May 2014 and the issuance of the NCPO Notification no. 11/2557 dated 22 May 2014 to designate the power the Courts of Justice over hearings of cases resulting from the breach of applicable laws and the NCPO Notifications, in order to main peace and order and to resolve problems in society, the National Council for Peace and Order (NCPO) declares that any of the following offences committed within the Kingdom shall fall under jurisdiction of the military court.
1. Offences regarding the Penal Code
(1) Offences against the King, the Queen, the Heir-apparent, or the Regent, from Articles 107-112
(2) Offences against national security from Articles 113-118, except offences committed in areas where the Internal Security Act B.E. 2551 or the Emergency Decree on Government Administration in States of Emergency B.E. 2548 (2005) has been invoked.
2. Breaches of the Notifications and Commands of the National Council for Peace and Order (NCPO)
Being effective from now on until changes are announced
Declared on 25 May 2014
General Prayuth Chan-ocha
1 In normal time, the Court Martial is composted of three levels, just as the Court of Justice. But during wartime and during the time the Emergency Situation is declared, there is just one level of the Martial Court.