The UN Working Group on Arbitrary Detention (UNWGAD) has issued an opinion saying that the arrest of activist Tantawan Tuatulanon in March 2022 amounts to arbitrary arrest and that she was not given access to a fair trial, while her prosecution under the royal defamation law is a violation of freedom of expression.

Tantawan Tuatulanon (File photo)

Tantawan was arrested on 5 March 2022 and charged with royal defamation and violation of the Computer Crimes Act for live-streaming herself as the police cleared Ratchadamnoen Nok Road for a royal procession and questioning the priorities of the police and the King as farmers protesting in the area were made to move away from the route. The police did not present a warrant when arresting her.

Tantawan was released on bail. However, her bail was revoked on 20 April 2022. The Criminal Corut claimed that she had broken her bail conditions by going near a royal motorcade and posting about the monarchy on Facebook. To protest her own detention, she went on a hunger strike for over a month before being released.

After Tantawan and activist Orawan Phupong revoked their own bail and went on a hunger strike in prison to protest the detention of political prisoners, Thai Lawyers for Human Rights (TLHR) submitted an urgent appeal to the UNWGAD reporting on their prosecution and detention under the royal defamation law.

On 9 May 2023, the UNWGAD sent a letter to the Thai government and asked them to provide it with information by 10 July 2023 about the legal provisions justifying Tantawan’s detention and its compatibility with Thailand’s obligations under international human rights laws. It did not receive a response.

During its 97th session between 28 August-1 September 2023, the UNWGAD adopted an opinion concerning Tantawan’s arrest and detention. It said that Tantawan’s arrest on 5 March 2022 amounted to arbitrary detention, since she was arrested without a legal basis, noting that the authorities typically invoke a legal basis through an arrest warrant. It also said that any detention or imprisonment should be ordered by, or subjected to the effective control of a judicial or other authority, “the status and tenure of which should afford the strongest possible guarantees of competence, impartiality and independence.” This was denied to Tantawan, which is a violation of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The UNWGAD noted that Tantawan’s bail conditions, which banned her from leaving her residence without court permission, were a deprivation of her liberty.

It also noted that the Thai authorities have relied of the royal defamation law to justify Tantawan’s arrest and pretrial detention. However, the Working Group found the royal defamation law to be “vague and overly broad,” as well as lacking a definition for what kind of expression constitutes defamation, insult, or threat to the monarchy, leaving the determination of whether an offence has been committed to the discretion of the authorities.

Because of this, the Working Group believes that Tantawan was detained under legislation that “expressly violates international human rights law” and so there is no legal basis for her detention as it considers detention under a law that is inconsistent with international human rights law to be lacking a legal basis and therefore arbitrary.

The Working Group noted that the live-streams and posts for which Tantawan was prosecuted are within the boundary of freedom of expression. It considers Tantawan’s live-streaming of her commentary on traffic control measures for royal motorcades and her social media posts about the monarchy “an act of expressing her beliefs” and dissemination of “information of legitimate public interest, specifically that concerning unpopular debt policies and the fundamental right of citizens to protest.”

It also said that it found that Tantawan’s right to a fair trial and due process had been violated, since her trial was scheduled for August 2023, more than a year and a half since her arrest, which it considers to be “unacceptably long". It has also received information that the prosecution has unnecessarily delayed legal proceedings, including failing to respond to defence counsel filings.

The Working Group calls on the Thai government to remedy Tantawan’s situation without delay and bring it into line with relevant international norms. The government should also ensure a “full and independent investigation” of the circumstances around Tantawan’s arrest and detention and take measures against those responsible for the violation of her rights.

It also calls on the government to amend the royal defamation law to bring it into line with recommendations made in this opinion and with Thailand’s commitments under international human rights law.