Thailand should dismiss the case against 22 protest leaders charged with insulting the monarchy – otherwise known as lèse-majesté — sedition, and a range of public order offences, and adhere to its international human rights obligations, the Clooney Foundation for Justice (CFJ) and TrialWatch Expert the Honourable Kevin Bell AM KC said on 16 January in an amicus brief submitted to the Bangkok Criminal Court.
Student activist Panusaya Sithijirawattankul surrounded by volunteer protest guards as she submitted the demands for monarchy reform to the then-metropolitan police commissioner in a day after the 19 September protest.
TrialWatch monitors criminal trials globally against those who are most vulnerable, including journalists and opposition figures, and advocates for the rights of individuals who are unfairly imprisoned. Since late 2020, CFJ’s TrialWatch initiative has been monitoring and evaluating criminal proceedings against the protest leaders, who face between seven and 15 years in prison if convicted of all charges (in Thailand, if a defendant is being prosecuted for multiple offences for the same conduct, the defendant is to be punished for the offence with the most severe punishment).
The defendants, in this case, span university students as young as 22 years old at the time of arrest, lawyers, activists, and journalists. The charges are based on the prosecution’s allegation that while giving speeches at a protest the defendants lied about the Thai King’s expenditures and his frequent travel to and from Germany, including during the COvid-19 lockdowns and allegedly in violation of quarantine rules.
As documented by TrialWatch monitors who have attended the trial, the prosecution has not presented evidence that the defendants’ statements were false and the court has refused to order institutions like the Crown Property Bureau, the Royal Office, and Thai Airways to provide financial and travel records, despite the defence’s repeated requests. This has undercut the defence’s ability to prove the statements were true. As one defendant noted at a recent hearing, without access to information to prove the truth of their comments “it is as if the defendant’s side is chained with one hand to the boxing ring, preventing them from punching and fighting with the other side.” If the court does not dismiss the case, it should at least allow the defence access to the materials it needs to both mount a defence and challenge the prosecution’s evidence and arguments, today’s amicus brief said.
The trial, which has been monitored by the Columbia Law School Human Rights Clinic on behalf of TrialWatch, consolidates two now-joined cases. A first indictment was filed against four people in February 2021, and a second against an additional 18 people in March 2021. Of the 22 defendants, at least six are university students, all in their early twenties. The defendants participated in demonstrations in Bangkok on September 19, 2020, with protesters calling for amendments to the Thai Constitution and reform of the monarchy.
One defendant, 24-year-old student activist Panusaya Sithijirawattanakul, gave a speech at the protest asserting: “the 2021 Budget did not come into effect on time and not one person was brave enough to say this straight [that it was] because the [King] wasn’t in the country. He was living a good life spending people’s tax money in Germany.” She spent 59 days in detention, during which she went on a hunger strike for more than five weeks. She now faces 15 years in prison.
Another defendant, 61-year-old magazine editor Somyot Prueksakasemsuk, said at the protest: “the position [of the King] is vacant because he is not in Thailand,” and that “We have only one head of State, and he should be subject to criticism based on the check and balance system. It is unacceptable that he hides from criticism. He earns both salary and annuity 30 billion baht a year.” Mr Prueksakasemsuk is facing up to 15 years in prison.
A 24-year-old defendant and activist leader Parit Chiwarak – also facing up to 15 years in prison – said: “Do you know that when we do transactions with [the Siam Central Bank], if the bank makes a 100 baht profit, 33 baht will go straight to the pocket of King Rama X as the top shareholder? This means that when you use SCB, you’re financing his trip to Germany.”
In the indictment, reviewed by TrialWatch, the prosecution alleged that all statements made about the Thai King’s absences from Thailand and expenditures were false. According to the prosecution, the statements were also “intruding, assaulting, defaming, slandering, and showing a great malice” towards the King, whose position is “inviolable.”
Defendants who commented on the King in their speeches – seven of the 22 – are charged with lèse-majesté, which carries a sentence of up to 15 years in prison. Since the demonstrations, these seven defendants (and one other) have been held in pretrial detention for significant periods of time. Lawyer Arnon Nampa spent the longest time in detention, a total of 113 days. Although all defendants have now been released on bail, they are subject to strict conditions, including prohibitions on participating in political protests and on criticizing the monarchy.
The amicus brief is based on the international obligations Thailand must follow as a party to the International Covenant on Civil and Political Rights (ICCPR). Among other things, the ICCPR requires that defendants be able to contest the arguments and evidence against them, and access the materials necessary to do so.
“In violation of international principles, the court has tied the accused’s hands by obstructing their attempts to obtain documents that would prove the truth of their statements about the King. The absurdity of this situation is highlighted by the fact that the defendants are charged with lying that the King was not in Thailand during certain periods at the same time as defence lawyers have been prevented from accessing routine travel records,” said TrialWatch Expert the Honourable Kevin Bell AM KC, who has fifteen years of judicial experience in the conduct of criminal trials, including as former Justice of the Supreme Court of Victoria, Australia.
The proceedings also violate the defendants’ right to freedom of expression, which is likewise guaranteed by the ICCPR. Under international standards, laws must be precise and clear so that individuals know what acts are criminal and what acts are legal. Lèse-majesté, however, criminalizes any insulting, threatening, or defaming of the monarchy, terms that are vague and subjective. In alleging the defendants have violated the lèse-majesté law, the prosecution has not even attempted to distinguish between whether their speeches “insulted,” “threatened,” or “defamed” the monarchy, instead repeating the same copy-and-pasted paragraph for each defendant that decries the “great malice” displayed towards the King.
“It is essential to note that it is unclear whether the statements made by the defendants even qualify as lèse-majesté under what is already an overbroad definition,” said the Honourable Mr Bell KC. “One would not assume, for example, that advocating for reform of the monarchy would constitute defaming or insulting the monarchy. But the prosecution has proceeded on this presumption, seemingly unconcerned with such matters like evidence and burden of proof.”
Some of the restrictive bail conditions placed on the defendants require them to refrain from engaging in any acts that might “impact the monarchy.” In response to confusion about what this means, magazine editor Mr Prueksakasemsuk said: “I might go to a meeting, I am not sure what will happen, whether anyone would talk about Monarchy or not and in what way?” The court did not clarify whether being present while someone else talked about the monarchy would put Mr Prueksakasemsuk at risk for reimprisonment, instead stating: “you agreed to the conditions, which were voluntary.”
Commentary about public figures, including monarchs, is protected by international law. Statements of this nature actually warrant heightened protection because of the importance of political speech. The defendants’ comments should never have led to a criminal prosecution, let alone a trial in which they face the prospect of more than a decade in prison. Indeed, UN experts have held that “lèse-majesté laws have no place in a democratic country” and have called on the Thai government to “stop the repeated use of such serious criminal charges against individuals for exercising their rights to freedom of peaceful expression.” The UN Working Group on Arbitrary Detention has described Thailand’s lèse-majesté law as “so vague as to be inconsistent with international human rights law,” and the UN Human Rights Committee has criticised Thai authorities “extreme sentencing practices” in relation to lèse-majesté.
The next hearing in the case is scheduled for January 16. In the amicus brief, CFJ and the Honourable Mr Bell KC urge the court to dismiss the case based on violations of the right to freedom of expression; failing that, the right to freedom of expression requires that the court lift the restrictive and unclear bail conditions imposed on the defendants and the right to prepare a defence requires that the court facilitate defence access to the evidence requested.
Background
Section 112, the lèse-majesté provision in the Thai Criminal Code, provides that “whoever defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent shall be punished with imprisonment of three to fifteen years.”
While falsity is typically not a required element for proving lèse-majesté under Thai law, the prosecution has made the supposed falsity of the speeches given by the protesters a central aspect of its case, stating unequivocally in both indictments that the defendants’ comments on the King were false. However, the defendants have not been given an opportunity to defend themselves by being granted access to materials that could prove the truth of their statements.
