Lesson on criminal law: Is Ja New’s mom an accomplice in crime against monarchy?

 
The Thai word “ja” has become popular in Thailand as a criticism of the police, following the arrest of an activist’s mother in early May on a lèse majesté charge. The case against Patnaree Chankij, mother of Sirawit Serithiwat, the student activist known as “Ja New”, is seen as politically motivated and has sent Thailand’s human rights record to a new low. Not only has her arrest warrant been hastily issued, police also held Patnaree in pre-trial detention even after she turned herself in. And even though police maintain that there are reasonable grounds to suspect that Patnaree has committed a lèse majesté offence, no evidence has been unveiled to the public other than the word “ja” she said during a Facebook conversation. Police have also refused to explain how the evidence against her was obtained. 
 
Sirawit Serithiwat talks to his mom, Patnaree Chankij, on 7 May 2016
 
On 22 July 2016, the military prosecutor decided to indict Patnaree for breaching Article 112 of the Criminal Code, the lèse-majesté law, and the Computer Crimes Act, although the Commissioner-General of the Royal Thai Police had previously decided not to press charges against her. 40-year-old Patnaree now faces up to 15 years in jail and will be tried in a military court. In addition to the lèse majesté charge, Ja New’s mother is also accused of violating Article 14 (3) of the Computer Crime Act, which prohibits a person from entering information that threatens national security into computer system. Both are very serious criminal charges and carry a maximum prison sentence of 20 years combined. However, police have not fully informed the suspect what she has done to deserve these charges and what evidence they have collected against her. According to her lawyer and observers from human rights organizations present during the notification of charges, Patnaree was only informed that the charges were prompted by her saying “ja” to another lèse majesté suspect, Burin Intin, after he made defamatory remarks about the monarchy during their Facebook chat. The same explanation appeared in her case file:
 
In the [Facebook] chat, Mr. Burin, who used his Facebook account named “Burin Intin”, posted messages deemed obviously defamatory to the monarchy. During the chat, Mr. Burin also wrote “Don’t criticise me for saying all these”, and a reply came from a Facebook account “Nuengnuch Chankij writing ‘ja’. This reply implied the acknowledgement and agreement with the alleged posts made by Mr. Burin. Therefore, judging from the circumstances and the acts of the user of the Facebook account in the name of “Nuengnuch Chankij”, the user is an accomplice to Mr. Burin in the act of posting messages defamatory, insulting, or threatening to the King, the Queen, and the Heir-apparent and of importing into a computer system data which is an offence against national security. Had the Facebook user “Nuengnuch Chankij” not agreed with the alleged posts made by Mr. Burin, she would have stopped him from posting the messages or blamed him for doing so. Instead, her reply “ja” simply infers her consent (to the act). Source
 
This explanation by police has raised a number of serious questions concerning criminal law and criminal procedure:
  1. If “ja” is the only word that Patnaree has typed in the whole conversation, can police still charge her with being an accomplice to the crime?
  2. If Patnaree has witnessed a commission of the crime without making any attempt to stop or condemn it, can police accuse her of aiding or being involved in the actual crime? 
  3. Is it possible that Patnaree has said more than the word “ja” as the police have insisted? 
  4. Can conversations held in private be used in lèse majesté prosecutions? 
Prachatai asked Assistant Professor Sawatree Suksri, expert on criminal law from Thammasat University, and core member of Nitirat, to answer these questions. 
 
Sawatree Suksri
 
O O O O O
 

Accomplice Liability

 
To answer the first question, Sawatree said it is important to understand the principle of accomplice liability first. Article 83 of the Criminal Code stipulates that in any offence accrued by the actions of two persons or more, the accomplices shall face the same punishment as the individual who commits the crime. This is applicable to all offences under the Criminal Code. 
 
Because the accomplice will be punished for a crime committed by someone else, the prosecutor must be able to prove that the accused has indeed facilitated the commission of the crime. As a result, they are required to show the court concrete examples of complicity, Sawatree said.
 
A person may be accused of being complicit to a crime if he or she has assisted or encouraged another person to commit a criminal offence. In a case of physical assault, for example, the principal offender of the crime may hit his or her victim in the head, while the friend that was asked to come along only hit the victim in the leg. Both may still be charged with attempted murder even though the friend may have done less harm to the victim than the principal offender. In some cases, performing a small role in a larger criminal act is sufficient enough to be charged as an accomplice. For example, if A has broken into a house with the intention to rob it, while B has taken no part in the robbery but stood outside as a lookout for A, B may be also charged with robbery even if his action (as lookout) is not a crime itself. This is because the actions of both A and B have allowed the robbery to be completed. 
 
However, Sawatree said the intention to aid in the commission of the crime is also an important element of accomplice liability. This means the State must be able to prove that B in the robbery example has wilfully or knowingly assisted in the crime committed by A. For example, if B knew that A was breaking into a house to kill somebody, B may be also charged with murder even if all he did was stand outside the house to look out for A until the intended killing was completed. 
 
To prove that someone is complicit to the crime under Article 83 of the Criminal Code, Sawatree said the State must be able to demonstrate that the defendant has both “intended” to see the crime completed and has physically facilitated the commission of the crime. Without both elements, the prosecutor’s case against B in the robbery case will not be strong enough. For example, if A only told B that he was going to break into a house to recover his own property, B may not be complicit to the robbery because he was unaware of A’s criminal intent. On the other hand, if B knew that A was going to commit a robbery but decided to leave the crime scene before A has completed it, the State would find it difficult to demonstrate that B has assisted A in the robbery because the “physical element” of the crime was missing. 
 

The standard of criminal negligence: Can Ja New’s mother be held responsible for a crime she didn’t try to stop?

 
The second question deals with criminal negligence – a charge of omitting to fulfil one’s duty as required by law. By not making any attempt to stop a lèse majesté offence, can Patnaree also be accused of lèse majesté? 
 
Before answering this question, Sawatree urged caution in interpreting what act constitutes criminal negligence, citing the severely negative legal burden that the accused would be required to bear. Under criminal law, not stopping a criminal act or displaying disregard of a criminal act being committed may not constitute complicity or accessory to the crime or may not be enough for the court to find the defendant guilty. To convict someone of being an accessory or accomplice to a crime, both the mental element (criminal intent) and the physical element (facilitation of the crime) must be demonstrated. (While an accomplice may be punished to the same degree as the principal offender, an accessory may face a lesser sentence, usually 2/3 of the punishment for the crime). 
 
“It is not enough to charge someone with being an accomplice or accessory to the crime because he or she did not try to stop the crime from happening,” Sawatree said. “You must also be able to prove that he or she has both mentally and physically facilitated the actual crime.”
 
However, some forms of negligence may be punishable under criminal law, Sawatree said. For example, a person may be negligent when his or her action, which has deviated from normal or reasonable standards, has endangered someone else’s life. If a parent failed to provide for the needs of their child, he or she would be charged with dereliction of their duties as a parent or caretaker. If the child died because of the parent’s failure, the parent could be charged with murder even if he or she did not kill the child. 
 
To charge someone with negligence, however, Sawatree argued that the State must prove that the defendant has the obligation to carry out the duty that he or she is accused of neglecting. Sometimes the duty is imposed by law, such as the duty of parents to care for their children. If after giving birth to a baby, A failed to provide for the needs of the baby and the baby died as a result of A’s failure, A would be guilty of murder even if she did not deliberately try to end the life of the baby. Also, if A saw her husband B, who didn’t want the baby in the first place, trying to suffocate the baby to death and did not make any attempt to stop him, A could be charged with being an accomplice to the murder of the baby and face the same punishment as B even if she didn’t kill the baby herself. 
 
Sometime the duty is imposed by a commercial contract, such as in the contract to care for a swimming pool, which comes with a duty to ensure the safety of swimmers. (This type of contract requires the contractor to make all possible attempts to rescue someone who drowns in the pool, and not doing so will constitute criminal negligence). In some cases, the duty derives from the special relationship between two parties, such as the duty between the child and his or her foster parents. Even though they are not the child’s biological parents, the child may still be accused of criminal negligence if he or she leaves the foster parents to care for themselves in their old age and die. In some cases, the duty of care may also be imposed. For example, if a person trying to help a blind person to cross the street leaves the blind person in the middle of the street to be hit by a car, the person may be charged with criminal negligence. This is because he or she would be required by the duty of care to complete the act he or she was performing, according to Sawatree.
 
“The charge against Ja New’s mother has raised an important criminal law question, and that is whether citizens are required by law to protect and defend the reputation and the honour of the persons and institutions under Article 112 of the Criminal Code,” Sawatree said. 
 
“If you look at current criminal law, you will not find any requirement to that effect. Apart from the four duties mentioned above, there is nothing in Thai criminal law requiring all Thai citizens to defend the monarchy from any insult or violation,” said Sawatree, who is also member of the Nitirat group of law scholars. “Not only that, the government has not issued any new regulation to compel citizens to the defence and the protection of the monarchy, and the rule on special relationships cannot be applied either. To accuse Ja New’s mother of lèse majesté, she has to have done something that either constitutes an insult to the monarchy or has facilitated the act of insult to its completion. If the police go as far as to interpret not saying or doing anything to stop a lèse majesté offence as a lèse majesté offence itself, I would say that they are seriously violating the principles of criminal law.”
 

In a Private Chat between Two Persons, Only One May Be Accused of Lèse Majesté 

 
To accuse both parties in the private conversation between Burin and Patnaree of lèse majesté, the State must be able to prove that (1) the conversation did include false or defamatory information, (2) the false or defamatory statement has been spoken before a third party who is not the speaker and not the target of the alleged defamation, and (3) the false or defamatory statement sufficiently targeted or specified the victim (the second party) in the conversation 
 
“The Facebook conversation between Burin and Ja New’s mother was a private conversation between only two people. If the police want to charge Burin with lèse majesté, they have to consider Ja New’s mother the “third party” or the one who receives the alleged defamatory message. If they want to charge Ja New’s mother with lèse majesté, then that makes Burin the third party. After all, Burin and Ja New’s mother could not both become accomplices in the defamation without a third party,” said Sawatree. 
 
 

Are the Police the “Third Party” in This Lèse Majesté Chat?

 
Sawatree also rejected any notion that the police could claim third party status in the conversation that has led to the lèse majesté charges. In order to criminalize Ja New’s mother for the chat with Burin, the State will have to prove that she was aware that what she was doing constituted defamation and also aware that what she was saying to a third party constituted a defamation of the King’s reputation.
However, that doesn’t appear to be the case. Both Burin and Patnaree were holding a private conversation using a private platform and without expecting anyone else to partake in the conversation or see it. The absence of intention to defame is very clear, according to Sawatree.
 
If A has called a subordinate into his office to complain that B’s poor performance has caused damage to the company, but C has also heard the conversation through eavesdropping, A could not be accused of libel. This is because A did not intend for anyone other than the subordinate he had called into his office to hear what he said about B. In Ja New’s mother’s case, it could not be established that she did intend to insult the King by typing “ja” during the chat. In addition, what she said wasn’t directed at anyone other than Burin. If police were monitoring this conversation, they would be equivalent to C in the example above.
 
 

Additional Questions

 
This is not the first time that a private conversation has become the basis for a lèse majesté charge. In 2014, a taxi driver was accused by his passenger of insulting the King during their political talk in the taxi. (The taxi driver was found guilty and sentenced to two and a half years in jail). However, Sawatree said the passenger in the taxi driver’s case was legally the third party and the audio recording the passenger made of their conversation was admissible as evidence. In Ja New’s mother, it remains unclear what the evidence for her alleged crime is.
 

Will illegal access to a private conversation by police become an issue in the trial?

 
Article 25 of the Special Case Investigation Act, as well as Articles 18 and 19 of the Computer Crime Act, do allow the inquiry officials to obtain information transmitted electronically and by post or telegram if there is a reason to believe that the information was used to commit a special case offence. So it is not illegal for police to access private conversations exchanged by computer, provided that their request to do so has been legally approved by the court. The question is have they asked? Whether the police exercise their power under the Special Case Investigation Act or the Computer Crime Act, they must still seek permission to obtain the information from a competent court. 
 

Can police legally cite the NCPO Order as the law from which their power is derived?

 
If the police have obtained a court order to access this information, they certainly had the legal right to search. The law allows them to do it, especially if they invoke national security. But in this case, they did not obtain a court order and there is certainly no law allowing that. If police tapped someone’s telephone without a court order, the evidence collected through that phone tapping may not be admissible in court because it was obtained illegally or improperly. The judge may order that piece of evidence to be excluded from the trial. However, judges still have discretion to allow or exclude evidence as necessary. It is not mandatory that the evidence must be excluded if obtained improperly. 
 
But if the physical evidence was “created” rather than “obtained,” then it is mandatory that the evidence will be excluded. Examples are when the evidence was false or fabricated, or when the suspect was coerced, encouraged or manipulated to confess involuntarily or unknowingly.
 
In Ja New’s mother’s case, the physical evidence may not have been created, but whether the evidence was illegally created (พยานที่เกิดขึ้นโดยมิชอบ) is still a major question. The possibility is that the evidence was illegally obtained (พยานที่ได้มาโดยมิชอบ) because there was no court warrant or law to support the means to obtain the evidence. As far as we knew, there was no court order.  It is not clear which law the police used to obtain the information because they never explained it to the public. 
 

Police would not reveal how they had obtained access to a private chat, saying that the investigation process must remain confidential.

 
This depends on which party is seeking the information and what they plan to do with it. In general, there is a ministerial regulation allowing the police to partially or totally withhold information from journalists. This is because publicizing too many details of an investigation could hurt the case. But if the person seeking information from the police is the accused or his or her defence lawyer, police cannot withhold the information from them. The law on the fundamental rights of the accused applies to every criminal investigation. Under Article 134 of the Criminal Procedure Code, the suspect has the right to be informed of the crime that he or she is accused of committing, and police are also required to have reasonable evidence supporting the allegation. If the police failed to or did not fully inform the suspect of the charges and the evidence collected against the suspect, the whole investigation process could be dismissed by the court as unlawful.
 
There are three components in our criminal justice process: law enforcement, prosecution, and the courts. In law enforcement, police are given several duties, including the duty to perform the inquiry official’s role, and they must do it properly. If the investigation hasn’t been handled according to the law, it would have a negative impact on the prosecution. Article 120 of the Criminal Procedure Code prohibits a public prosecutor from entering a charge on any offence in court without having conducted an inquiry into the alleged offence. If this requirement is not met, the case could be thrown out by a judge.
 
What kind of investigation is unlawful then? Any investigation that does not meet the requirements under Article 134 of the Criminal Procedure Code would be unlawful. As I said earlier, all suspects have the right to know the charge against them. They must be allowed an opportunity to clear the charge and to introduce any facts in their favour. This means they also have the right to know what evidence has been collected against them. If police withhold this information from the suspects, what evidence will they use to defend themselves?  
 

So Article 134 is relevant to the police’s claim that Ja New’s mother has said more than one word, isn’t it?

 
Correct. Both the defence lawyer and the observer who were present during the notification of charge confirmed that the police have informed the accused that the word “ja” that she typed during the chat was the evidence of her alleged crime. This is inconsistent with what a senior police officer said during the press conference. He said there were other things but refused to explain. 
 
However, if police had more evidence but didn’t reveal it to the suspect during the notification of charge, it wouldn’t necessarily render the investigation unlawful. In the end, if the inquiry official decides that the suspect should be formally charged, the official can still legally do so. But the evidence cited in the inquiry file shall not be more than “ja” because that was the only explanation given to the suspect. If that’s the case, the investigation would be considered lawful and the court would have no reason to reject the prosecution. If after the charge is entered in court by a public prosecutor, the court finds more facts and evidence in the case file than what was told to the suspect, the court can then dismiss the case on the ground that the prosecutor has no power to charge.
 

Can the prosecutor send the case back to the police for further investigation?

 
Of course, but the suspect must also be informed if more facts or evidence are uncovered and therefore will be included in the case.