The right to freedom of expression under the military junta all year round of 2015 remains critical. The restrictions seemed to be a bit relaxed the middle of the year, but as the year is drawing to its close, it has become dramatically serious. Attitude adjustment continues to be the common tactic used, though the format has changed from summoning for a meeting to visiting the persons at home. People peacefully exercising their right to freedom of expression continue to face criminal charges, i.e., the Penal Code’s Articles 112 and 116, the ban against the gathering of five people and upward, the Computer Crime Act, the Public Assembly Act, etc. It is still difficult to hold public activities due to physical intervention and the enforcement of the newly promulgated Public Assembly Act, though the ripples triggered by the advocacies of the New Democracy Movement (NDM) seems to help to open up the space a little bit. 

The statistics are here to break this year. The Military Court handed the record breaking sentence with regard to the Article 112 by imposing sixty years of imprisonment for six offensive acts. Clicking 'like' on Facebook and mentioning the royal dog became an offecse against the law. Meanwhile, two suspects in cases concerning the claiming of royal connections to commit fraud have died while being held in custody in the new temporary prison built in the military barrack. This is yet to mention several new cases making the legal precedent.  

In 2015, decisions have been made in at least 17 cases concerning Article 112, including 12 cases in the court of first instance (three in the Criminal Court and nine in the Military Court), two cases in the Appeals Court and three in the Supreme Court. For example the ‘wolf bride’ theatrical performance case, in which the Criminal Court sentenced the accused to five years, reduced to two years and six months, the 'Banpot Network’ case involving 10 accused who each received ten years by the Bangkok Military Court, while those supporters received six years each prior to the reduction in half, the two cases against Opas for toilet scribing, each earned him three years prior to the reduction to one year and six months for each offensive act.  

The case with the hefty punishment due to several offensive acts and became news around the world was the case against Thiansutham. He was found guilty by the Military Court in five counts from posting five facebook messages, and sentenced to altogether 50 years prior to the reduction to 25 years. Pongsak was found guilty in six counts by the Military Court from posting six facebook messages and was sentenced to sixty years prior to the reduction to 30 years. Sasiwimon was found guilty in seven courts by the Chiang Mai Military Court Each of offensive acts earned her eight years, altogether 56 years prior to reduction to 28 years.

In most cases this year, the accused opted for pleading guilty. It enabled the Court to make swift decisions and sentencing. As for the cases in which the accused opted for pleading not guilty and the Court has already made the ruling such as the case against Thanet who was accused of sending offensive emails and at first defended himself by claiming his mental illness with letter of confirmation from the psychiatrist, the Criminal Court handed him five years before reduction to three years and four months. Chanwit was charged for distributing leaflets and defended himself regarding the number of offensive acts made, the Nonthaburi Provincial Court handed him six years without suspension.

Other cases that the accused decided to fight the charge in the Military Court including Sirapop, Anchan, and Tom Dundee, are still pending the trial. Since the announcement has been made in 2014 to authorize the Military Court to have jurisdiction over cases against civilians, the Military Court has made staggering schedule of hearings and during some hearings, the prosecution witnesses were simply absent without informing anyone in advance. Therefore until the end of 2015, none of the trials in the cases the accused decided to fight the charge have been completed.  

Fraudulent acts by claiming royal connections have been systematically made an offence related to Article 112  

Article 112 has recently been used to purge individuals alleged to have claimed their connections with monarchy for their personal gain, even though such practice should rather be considered a fraudulent act, not an act of defamation which is the purpose of the lèse majesté law. The legal debate will certainly continue on the issue. But in reality, a number of arrests and charges have been systematically made using the lèse majesté law since late 2014 to 2015 and thus the claiming of royal connections has been made an offence against Article 112.

From our records, six such arrests were made in January and February, three in April, and six in August, though they did not attract much attention. Several of the suspects have been accused to operate as a syndicate. The three new arrests were made in October including Mr. Suriyan "Mor Yong" Sucharitpolwong and other two and five high ranking police officials have been issued with arrest warrants.

The case of “Mor Yong” became the talk of the town for the year since the two suspects had died while being held in custody in the temporary remand facility in the 11th Military Circle (Nakhon Chaisri temporary remand facility). First, Police Major Prakrom Warunprapa died on 24 October and the Corrections Department told the press that he died of hanging himself in his cell. Then “Mor Yong” died on 7 November and the cause of death indicated in the death certificate was “bloodstream infection”. Both cases have commanded extensive attention from public and none has received the post mortem inquest by the Court.

Throughout 2015, at least 18 individuals have been arrested and charged for violating Article 112 as a result of their claiming the royal connections, as far as we can confirm. At least five more individuals have been issued with warrant issues, but remain at large. Since the 2014 coup until the end of 2015, at least 42 individuals have been arrested or charged for violating Article 112 as a result of their claiming the royal connections.

234 individuals summoned for talk, new tactic of visiting the homes of academics, reporters was launched instead of summoning.

The summoning of individuals for attitude adjustment has taken place consistently throughout 2015. The military junta and the authorities tend to target politicians, particularly core members of the Phue Thai Party or the Red Shirt who have made their opinions public constantly. Meanwhile, students, activists, academics, media and others exercising their right to organize political activities or to advocate certain issues have been the target of harassment in various forms. Their peaceful expression has summarily been viewed as a threat to national security and public order.  

The changing methods, from summoning, inviting for a dinner or a talk to home visit 

Last year, the NCPO has summoned individuals to report themselves by announcing the orders through public media. But the method ceased to be used in 2015. During this whole year, the authorities have changed to visiting the individuals at home, inviting them for coffee or food, though the attitude adjustment at the military barrack continues to happen sporadically by calling them or sending a letter to them.

In January, a number of politicians from the Phue Thai Party have been summoned for attitude adjustment including Mr. Nattawut Saikua who was summoned to meet at the Army Club after his posting a facebook message critical of the government; Mr. Pichai Naripthaphan, former Minister of Energy was picked up from home by the military for attitude adjustment at the First Army Area headquarters after he had made his opinion public about the prices of petrol. In February, military officers at Kawila Military Camp invited a group of Red Shirt core members for a dinner and a talk on political issues. In April, the government by the Center for Reconciliation and Reform (CRR) invited politicians, academics and a group of human rights lawyers who signed their names in the petition against the use of Article 44 for discussion on how to resolve the conflicts at the Army Club. According to the Thai Lawyers for Human Rights (TLHR), 82 individuals have been invited for the talk.

During May-July, the political climate has become eruptive as a result of the move by the New Democracy Movement (NDM). Apart from summoning an individual to meet, the authorities have changed to visiting the homes of the persons without giving them any prior notice. Military officers in various areas have approached and talked with the families of activists in the New Democracy Movement (NDM) asking them and pressuring them to tell their children to stop their movement and to report themselves to the authorities.

It has been reported that some individuals who had been summoned for “attitude adjustment” have been visited by the military officers at home or asked to meet for a talk several times throughout the year. The authorities wanted to find out information and to ensure that they have not been active in political activities including the cases of Mr. Nut Sattayapornpisut, former lèse majesté prisoner, Mr. Surapot Porntaweesak, an academic who uses his personal facebook for political criticisms, Ms. Sawatree Suksri, a member of the Nitirat lawyer group, Jitra Kotchadet, a union activist, etc. As for those who have failed to report themselves have been visited by the military at home several times including Mr. Somsak Jeamteerasakul.

Even university academics and reporters are deprived of freedom and have been summoned for talk 

Under the military junta, the political activism of students and academics is no longer protected by doing it within the university compound. Even media people have been subjected to restrictions on their reporting of information.

For example, in April, two students of the Luke Chaoban Group of Burapha University were apprehended and interrogated by the military and police officers after they had organized a public discussion on the privatization of university in July. The police also went to the Naresuan University to inquire the faculty members who have signed their names in the petition asking for the release of the New Democracy Movement (NDM) student activists. At Mahidol University, military officers have asked for having a meeting with faculty members of the Institute of Human Rights and Peace Studies (IHRP) asking them to cooperate by refraining from participating in a political activity and to report to the local military authorities as well as to tone down their political messages.

In September 2015, Mr. Santiphab Siriwattanapaiboon from the Udonthani Rajabhat University was approached and followed by military officers while he was conducting his baseline data research on community economics and the participation within the community in Udonthani. In November 2015, eight faculty members had to turn themselves in with the inquiry officers at the Chang Phuak Police Station as they were being charged for violating the Head of the NCPO Order no. 3/2558 regarding the maintenance of public order and national security as a result of their press conference on “University is not a Military Barrack”.  

As for media, one of the most known cases this year is about Pravit Rojapruk, senior reporter of The Nation who has been criticizing the military junta and has been held in custody in a military barrack several days in September 2015. Then in October 2015, Mr. Sakda “Zia” Eaw, a political cartoonist from Thai Rath and Ms. Thaweeporn Kummetha, a reporter of Prachatai who produced an inforgraphic on cases concerning Article 112, have been summoned for talk.

Even those who have made comments on non-political issues have also been summoned for talk. For example, villagers in Roi-Et who mobilized on land issues, members of the Southern Peasant Federation, Surat Thani, Mr. Panthep Puapongphan from the Network of People for Energy’s Reform, or members of the Rak Mae Sot which is opposed to the Special Economic Zone program, have also been summoned for talk.

Various methods have been used by the authorities in 2015 to summon individuals for attitude adjustment to avoid public criticism and to change the impression from suppression to “seeking cooperation”. Nevertheless, given the summoning and the home visits that have happened incessantly this year, it could be said that the NCPO military junta has not relaxed their strict suppression of the right to freedom of expression on political issues without any exceptions.

In 2015, at least 234 individuals have been summoned to report themselves, for attitude adjustment or have been visited at home by the military officers. If we count from the coup in May 2014 until December 2015, at least 829 have been summoned or visited.  

Some more room for public assemblies after the move by the New Democracy Movement (NDM) and the innovation of protesting methods 

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Early 2015, political demonstrations or public protests were hardly seen owing to the stringent restrictions lingering on from the previous year. But in February, the Resistant Citizen organized the “Stealing of Elections” event fallowed by the “Active Walking Citizens” in March. More arrests and deprivation of liberty were then made. Meanwhile, even public gatherings not directly against the government including the opposition to the transfer of a medical doctor, the demand of labour rights, or even the protest by football fans, were banned.

22 May 2015 marked the first anniversary of the 2014 coup and various groups of activists have taken to the street only to find themselves apprehended by the authorities including the Dao Din students who came out to hold a banner opposing the coup in Khon Kaen; the YPD which organized a public discussion, and the group of students organizing a symbolic action in front of the Bangkok Art and Cultural Center. Just on that day, at least 43 individuals were apprehended for their peaceful exercise of the freedom of expression, the biggest number since the coup until the end of 2015.

After being arrested and charged for violating the political gathering ban by the NCPO, the Dao Din students and other activists apprehended in front of the Bangkok Art and Cultural Center have formed a group called the “New Democracy Movement (NDM)”. The group announced their civil disobedience approaches. They vowed not to run away (in spite of the arrest warrants), but refused to cooperate and declared they would continue to defy the ban on political gathering. The arrests were made against them again on the late afternoon of 26 June. Then, the 14 members of the New Democracy Movement (NDM) were brought to the Military Court the middle of the night for a hearing to have them remanded in custody and they went straight away that night to the prison.

More attention has been paid to the issue and many groups have come out to demand their release. Many activities have been organized to increase the pressure for their release including the post-it messages to show solidarity with the arrested activists, the candle vigil and singing in front of the prison, and the gathering in front of the Military Court. No intervention was made to interrupt the events and eventually, the Military ordered their release without any string attached.

Since July until now, the state tolerated several demonstrations, even though they tried to put the control on and ramp up the pressure, but no force has been used to suppress the activities or to have people arrested. The activities organized during the time included the mourning of the Draft Constitution, the gathering to commemorate the nine years of the 19 September coup, the commemoration of the 14 October uprising, etc., as well as other gatherings not meant to confront the government directly including the opposition to the coal-fired power plant in Krabi, the memorial service for the slain peasants in Surat Thani, etc.

Even though the NCPO relaxed the grip in the latter half of the year and allowed people to come out and express themselves better, but the train ride the Rajabhakti Park by the Democracy Study Group in December was interrupted. The police and military officers ordered the train to stop in Ban Pong station, Ratchaburi and apprehended at least 34 participants and the organizers. It shows how the state could not tolerate the expression on some issues.  

The enforcement of the Public Assembly Act to “suppress” any political defiance

One major move that affects the right to public assembly and activity of 2015 was the promulgation of the Public Assembly Act which has been effective since August. The law requires the 24 hours in advance of notification and many other obligations to concede to. Any violators who refuse to comply with the regulations shall be subjected to punishment.

After the Public Assembly Act came into force, it has been found that the authorities have invoked the law to threaten or suppress any planned demonstrations or protests including the political demonstrations and other issues including the protest against the moving of bus terminal, the opposition to the closure of the Pak Moon’s dam sluice gates, etc. According to our record, it was really enforced once including the fine levied on the organizers of the commemoration of Mr. Nuamthong for their use of megaphone without license.  

It is difficult to organize any public discussion, albeit the topic is not apparently anti-NCPO, reasons of intervention murky and military trying to stay behind the scene

Any effort to organize public discussion in 2015 is still subjected to stringent clampdown, even though the topic is not related to the opposition of the military junta, i.e., on coal-fired power plant, community rights, privatization of university, etc. In most cases, the authorities claim the intervention has to be made since no prior permission had been obtained before organizing the event. But in other instances, they might explain that it has to be suppressed fearing it might inspire others to organize the same activity or fearing there might be the mentioning of other issues other than the main topic of the discussion. It should be noted that the intervening officers are mostly row ranking officers receiving the command from their superior officers. It is thus hard to come to term with the genuine reason for the intervention.

The restriction or intervention has been done variedly depending on the situation. For example, pressure might be put on the owner of the venue to disallow the use of the place, the termination of power supply, having the officers videotape the whole event and take down names of each of the participants, requesting the chance of the title of the public discussion, requesting for military officer or other officer be invited as one of the panel speakers, as well as storming the event using the security forces. But the military seems to want to stay behind the scene more and more and has the police be their front. Thus, in many instances, it was the police to negotiate with the activists in order to find some compromise for the event to proceed.

As for events which were not intended for opposing the government, the reasons for the restriction could be diverse including the activity involving taking to the street, the organizers had joined any anti-coup activity, or the organizers had the potential to gather a large number of people. From our observation, it should be noted that the restriction or intervention took place as “a stitch in time” in order to preempt any public gathering and its expansion as well as to preempt any gathering which might inspire other political movements.

From our records in 2015, the attempt to restrict or intervene public gathering and activity has taken place at least 63 times including the intervention of a demonstration or public protest 19 times, public discussion or activity held in an exclusive space 44 times, and at 11 times for any gathering or activity which has nothing to do with politics or the opposition to the NCPO or its policies. 

From the 2014 coup until the end of 2015, the attempt to restrict or intervene public gathering and activity has taken place at least 104 times.

The dramatic rise in the criminalization of freedom of expression: Article 116, in particularly, the ban on political gathering and the use of Computer Crime Act are still there
 

Restrictions on the right to freedom of expression are allowed on given instances according to the International Covenant on Civil and Political Rights (ICCPR) to which Thailand is a state party. But such restrictions cannot be levied on criticism of the government. But from what has happened in 2015, it has been found that the military junta has violated the exemptions in various instances. They simply claim the need to enforce the law to maintain national security including the use of the Penal Code’s Article 116, the 2007 Computer Crime Act and the regulations issued by NCPO itself including the NCPO Order banning political gathering.

In 2015, at least 28 individuals have been arrested and charged for violating Article 116, seven more from what has been recorded last year. Cases of those having to face the violation of Article 116 this year include the 14 student activists of the New Democracy Movement (NDM) who organized public speaking and holding the banner bearing the statement “Down with Dictatorship, Long Live Democracy!” on 25 June. Later on, Mr. Baramee Chaiyarat was also accused for the same charge for giving them a place to stay.

Other examples included Pansak who embarked on a walk to demand that civilians not be tried in the military court the "Active Walking Citizens”, Preecha for giving a bouquet to Pansak during his walk, Ponwat for distributing anti-coup leaflets in Rayong, and five executives and staff members of Fahhai TV which allowed Pol Gen Seripisut Temiyavet to broadcast a program criticizing the work of the government. Thanet and Thanakorn were charged at the end of the year for criticising the government and the Ratchapakdi Park scandal.

Posting or sharing information on facebook can lead to facing charges in violation Article 116 including the posting of rumor about the double-coup by Chanapa, the rumor that the Prime Minister having transferred billions of dollars to Singapore by Rinda, and the criticisms of corruption in the construction of the Rajabhakti Park by Chuthathip, the posting of a diagram regarding the corruption of the Rajabhakti Park by Thanakorn. The four cases share the same thing that it was simply the act of sharing rumor which could be commonly found in social media. During the spread of such rumor, one person was arrested and brought to a high profile press conference as an attempt to “kill chicken to scare off monkey” and to stem the flow of such information.

From our records on the use of Article 116, it has been found that mostly the suspects would be brought to participate in a press conference, and they would be granted bail and the cases would sit there.  Since the 2014 coup until the end of 2015, only the trial of the case against Chatchawan has been completed and he was acquitted by the Chiang Mai Military Court. On the case of Rinda, the military court also ordered that the accusation does not fall under Section 116 but could be only defamation against the Prime Minister. It shows that the Article 116 has only been used to suppress any similar effort only.

The use of the Penal Code’s Article 116 as a tool could be attributed to that the law itself carries hefty punishment and the bail bond could be as high as 70,000 – 150,000 baht and the case falls under jurisdiction of the Military Court. And in the current political context, any accused on this charge would be labelled as being a threat to the government, even before the trial of the court. Also, it could be that Article 116 exists as part of the Penal Code, and the use of the existing law would seem to do better to the image of the NCPO rather the use of its own laws.

Another charge often used to stifle political expression is the violation of the NCPO Announcement no. 7/2557 or the Head of the NCPO Order no. 3/2558, no. 12 banning the political gathering of five people and upward. In comparison, last year most people who faced the charge were those taking to the street to oppose the coup, many of whom were activists belonging to the Red Shirt movement. But in 2015, most victims of the charge are simply students, activists, and academics.

In 2015, at least 37 individuals have been accused of politically motivated charges including four from the Resistant Citizen from the stealing of elections activity, seven from the Dao Din student group for holding anti-coup banners, nine student activists who organized a symbolic action on the first anniversary of the coup in front of the Bangkok Art and Cultural Center, eight faculty members in their announcing that universities are not military barracks, etc. From the 2014 coup until the end of 2015, at least 85 individuals have been arrested and charged for violating the ban against the political gathering of five people and upward.

Other charges for petty crime have also been used to stifle political expression. For example, each member of the Free People of Thailand was fined 100 baht for causing public nuisance from their symbolic action on “the bird with its mouth and legs tied up” on 22 February, Attorney Anon Numpha and other activists were each fined 200 baht for using megaphone without permission according to the Public Assembly Act.

The Computer Crime Act has still been used to criminalize the right to freedom of expression on various issues, even though they were not related to the opposition to the military junta directly such as the case of Maitree who uploaded a video clip of a man clad in military uniform while slapping a young boy’s face, Suraphan, a villager opposed to gold mining in Loey province who was filed with libel by the mining company with the Mae Sot Provincial Court for his statement in the facebook page “Loey Mining” or the case of villagers in Mae Sot, Tak posting facebook messages opposing the Special Economic Zone and were threatened with a case for violating the Computer Crime Act.

Landmark rulings: The dismissal of case against Phuketwan, suspension of punishment on Article 112, two dismissal verdicts by the Supreme Court based on computer forensic

Landmark rulings of this year involve the use of Computer Crime Act, lèse majesté charge as per the Penal Code’s Article 112 and libel law and the violation of the NCPO orders as well as the use of seditious law as per the Penal Code’s Article 116.

The Supreme Court dismissed two cases for the violation of Article 112 as a result of the admissibility of electronics evidence including the case against Surapak  who was accused of posting lèse majesté messages on facebook. The Supreme Court confirmed the ruling made previously by the Appeals Court to acquit the accused since the accused’s computer had been tampered with after it was seized by the authority. As the persecution cited as evidence cache files which could not have been generated by themselves, and given the flaws of the evidence, the guilt of the accused could not be proven beyond doubt. In another case, Nopphawan was accused of posting messages deemed offensive to the King using her alias ‘Bento’ on Prachatai webboard. The case was dismissed by the Supreme Court as the Court held that information derived from the IP address itself was insufficient to prove the identity of the poster of the messages.

In both cases, it shows how the Court has used its utmost carefulness to adjudicate Article 112 cases which involve a sensitive issue. Since the available electronics evidence was insufficient to identify the accused as the culprit, the benefit of the doubt has to be given to them. Any conviction based on flawed evidence, apart from being unfair to the accused, will also cause deeper division in society.

The Appeals Court convicted the accused on an Article 112 case even though the accused did not produce the offensive content. In the case against “Piphop” who sold the Thai translation of The Devil’s Discus, the Appeals Court has found the accused had sold copies of the book knowing full well that its content was offensive to the King as the title on the cover of the book says “An analysis of the death of His Majesty the King Ananda Mahidol on 9 June 1946”. Also, the accused sold the book during a political gathering which was not an ordinary place to sell things. Reversing the order of the Court of Lower Instance, the Appeal Court sentenced him to three years with its reduction by one third to two years without suspension.

The Military Court giving suspended term in the case against 'Ness'  and 'Nirand' who were accused of spreading fake statement from the Bureau of the Royal Household. Given that both took it down once knew it was false information, the Court noted the act in deciding the sentencing against them. 

The Phuket Provincial Court dismissed a libel case filed by the Royal Thai Navy against the Phuketwan and for the violation of the Computer Crime Act Phuketwan was accused of rewriting and publishing a news report by Reuters which claimed that Thai naval forces have exploited the trafficking of the Rohingya. The Phuket Provincial Court has found the accused did not write the statement themselves and had simply sourced it from a reliable newswire and could not be deemed an act of libel. In addition, it is not the intent of the Computer Crime Act to criminalize a libelous act since the law has been promulgated to suppress computer frauds.

The Dusit Municipality Court set intriguing precedent on the cases concerning the violation of the NCPO Announcement. In the case against Sombat Boonngamanong who was accused of violating the NCPO Announcements no. 25/2557 and 29/2557 for failing to report himself as requested for by the NCPO Order no. 3/2557, the Court has found that both announcements by the NCPO an ex post facto law which provides for punishment retroactively and is meant for using with particular individuals, in breach of the general rule of criminal law. As a result, both NCPO Announcements are not enforceable. The Court, however, deemed that the failure to report oneself without stating the reasons of the absence could be tantamount to the defiance of the order of competent officer as per the Penal Code’s Article 368 and ordered him to pay 500 baht as a fine.

The Chiang Rai Provincial Court convicted Od, Thanomsri and Suksayam for their seditious act as per the Penal Code’s Article 116. In this case, both were accused of hanging a banner bearing the statement for the secession of the Lanna Kingdom. The three of them were found guilty for violating Article 116 and sentenced to four years, with reduction to three years given their useful evidence and had the punishment suspended for the period of five years. The Court has found that amidst the tumultuous situation, the act of the accused could elicit more turbulence in society and the statement on the banner was deemed an act of opposition to the state power. The claim of the accused that the banner was simply a satirical act was something that that had been made up by the accused themselves.