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Lèse Majesté and Entrapment: Who Watches the Watchers?

 

Quis custodiet ipsos custodes?

Juvenal (Satire VI, lines 347–8). Literally, "Who will guard the guards themselves?"

 

The recent sentencing of Phongsak S., also known as Sam Parr, to sixty years in prison, reduced by half for pleading guilty, is the most severe lèse majesté sentence on record in the contemporary period. Phongsak S. was sentenced to ten years each for six Facebook posts, thus confirming a trend whereby the Thai secret police are closely monitoring Facebook posts – both Yai Daengduat and Jakrawut, a musician, were sentenced to decades of imprisonment for similar offences.

Phongsak S. is apparently a talented entrepreneur and was a conservative Thai salim tua mae [a conservative bourgeois ideologue] until after the death of his father in 2010. Reflecting on the 2010 crackdown and similarities with June 1932, October 1973, October 1976, and May 1992, he became angry, depressed, and started drinking. Socially isolated and focusing on caring for his elderly mother, he was unable to vent his frustrations with a social or political group and began posting on Facebook. After meeting a number of sympathetic people on Facebook, he started posting anti-monarchical messages and was eventually arrested on December 30, 2014.

The key word here is ‘eventually’, for the manner of his befriending on Facebook and the way in which he was arrested would appear to suggest the use of entrapment by the Thai secret police as well as the breaching of the legal concept of enstoppel. It should be pointed out at this stage that this column is not a criticism of the lèse majesté laws as they exist now, though the author’s position is that there should be a referendum, with multiple choices, on the issue in the future. Nor is it a criticism of the sentencing of the military court, though it is the author’s position that civilian courts should be trying civilians, one reason being that secret military courts making decisions in camera constitutes intimidation and is leading Thailand towards becoming an increasingly advanced police state.

Instead, this column seeks to understand whether a specific legal defence could have been made, and also whether it could have been grounds for an appeal if Phongsak S. had pleaded not guilty and if appeals were permitted. As a disclaimer, the author is not a lawyer or paralegal but does wish to raise these issues so that wiser, legal minds can consider them.

To begin with, Phongsak S. intensified the type and nature of his posts shortly after the 2014 coup. His Facebook friends grew so alarmed by his posts that they urged him to leave home, which he did, moving in with a friend met on Facebook who was also later detained by the military. Then, around July or August 2014, Sam met a new friend on Facebook. This friend sent him gifts and a mobile phone. This is a quote of what happened next, taken from this Prachatai column:

He had been speaking with this person on Facebook for four to five months when they finally arranged to meet in person, in Tak Province, the alleged hometown of the person. While Sam travelled to meet the person, the disguised police constantly asked him where he was at each stage…

During the trip, they were in constant communication, with Sam’s Facebook friend, asking, for instance, where Sam was at each stage of the journey, including, significantly, the exact time Sam planned to take a tour bus in Phitsonalok. Sam recalled that after he had been caught, one officer at the barracks greeted him with, “Don't you remember our last message?” 

The important thing here is to note the likely involvement of at least one secret police officer. What becomes crucial is the timeline of Phongsak S.’s Facebook postings:

  1. September 4, 2013. A photo of the King and text. 

  2. September 10, 2013. A photo of the King with text defaming the King and Queen. 

  3. September 17, 2013. A photo of the King and his older brother (former king Ananda Mahidol, killed in 1946), with text.

  4. September 18, 2013. Two photos. 

  5. November 25, 2014. Facebook status post boasting that he had not yet been caught (although his name appeared on a detention list on June 9th of that year).

  6. November 29, 2014. A photo montage, with text. 

The key questions are:

a) Did the contact with the secret police officer prompt the first, or subsequent postings?

b) When did the secret police first know of Phongsak S.’s identity and location, i.e., when could they have first arrested him?

To answer the first question is to know whether the crime Phongsak S. was found guilty of was due to interactions with the Thai secret police. Depressed following both the death of his father and a nationally socio-psychologically traumatic event and frequently drunk, Phongsak S. was probably in need of psychological treatment, though his lawyer could not have made this defence because he pleaded guilty. While the diminished responsibility defence could have been made here, to what extent did the secret police officer who Sam met online in July or August prompt Sam’s first or subsequent postings in September and November?

In other words, to what extent could Phongsak S. have made a defence on the basis of entrapment? In German law, for example, it is generally forbidden to induce or persuade someone to commit a criminal act, or to attempt to induce or persuade them to do so. German law is especially important here because it rejects the legacy of the Stasi, the Ministerium für Staatssicherheit, the East German secret police. Psychological warfare was perfected by the Stasi and routinely included entrapment, using such techniques as luring married men into liaisons or targeting homosexuals in a similar fashion. The core concept employed by the Stasi was Zersetzung – the principle of deconstructing fellow human beings’ minds through psychological warfare techniques and networks of informants until that person lost their mind, broke down, committed suicide, or could easily be picked up by the secret police. Weaknesses such as alcoholism were reinforced and exploited in this method.

 

Figure 1: Stasi monitoring station. Sourced from mediaroots.org.

The entrapment defence exists in Thai law. However, faced with a sixty-year sentence if it did not work, Phongsak S. pleaded guilty. Thus, we will never know the answer to the first question.

The second question is related to the defence of estoppel, a form of entrapment defence. Essentially, immediately following the first lèse majesté post, the secret police should have arrested Phongsak S. if they knew his identity and location, or if they could have easily found out but chose not to. Certainly, if Phongsak S. was using the phone supplied to him, simple techniques of telephone triangulation could have been employed or his IP address could have been tracked. If the defence of estoppel had been made by either the defence, or, as it can be in some jurisdictions, pointed out by the judge, if the secret police had continued to monitor Phongsak S. after they could have arrested him, each additional count after the period when Sam’s identity and location was known could be inadmissible.

The answers to these questions would reveal the extent to which Phongsak S. could have made a legitimate defence, one which exposed the methods employed by the secret police. It should not be forgotten why the present lèse majesté laws encourage guilty pleas. The answers to these questions would also reveal the extent to which Thailand is becoming a police state. It should not be forgotten that thousands of Thais, including police officers and soldiers, fought to defend Thailand from the kind of abuses associated with communist totalitarian police states such as the Stasi of former East Germany. It should also be remembered that the basis of police states is to build ever-increasing waves of informants and secret police, watching neighbours, loved ones, and even other secret police. In Thailand, the number of people being tracked by the police state is spiralling upwards.

 

Figure 2: Stasi chart of a poet and all his social connections. Sourced from commondreams.org.

This is not the fault of specific officers or individuals involved in the process of watching. The Royal Thai Police, then the Thai National Police Department under the Ministry of the Interior, was moulded by the Cold War. Also, a military dictatorship is by definition authoritarian and creates its own internal logic of repression, one associated with rule by diktat, the repression of minorities, and the development of popular support via psychological authoritarianism. Moreover, the act of watching creates its own state of paranoia within the surveillance state, thus perpetuating a cycle of mutual suffering without end for both the watchers and the watched.

In Thailand, the ‘Land of the Free’, the answer to the question of who watches the watchers is, or soon will be, a relatively simple one: more watchers.

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