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On 19 August 2013, New Mandala published an article titled “The role of public interest litigation in the quest for democracy in Malaysia.” You are now invited to read this one, slightly different title, and significant differences between countries and cultures vis-à-vis Malaysia.
Back in the United States in 1925 the Scopes Trial focused national attention on an issue at the time just as sensitive as lese majeste is in Thailand today, that of human evolution – a subject until then absolutely prohibited from being taught in any state funded school. The state, at the time, supported Creationism, and encouraged belief in it. However as strong as state support for the belief was, however, state agencies never really created a doctrine of indoctrination to where the entire population was forced to believe. Something called the Bill of Rights prohibited that. Unfortunately, Thailand has no such guarantor of freedom of expression.
Up until the last few years, the state has been overly successful in getting away with absolutism in terms of loyalty and state indoctrination of its version of loyalty. Generally speaking that loyalty has three pillars – the nation, the religion, and the monarchy. The parallels are evident in the Three Gems, or three pillars, of Buddhism – the Buddha, the Dharma, and the Sangha. In the latter case there is the founder of Buddhism and his life, accounts of his life and the things that he said and did. Then there is the Dharma, the faith that he founded, or in perhaps a more accurate sense, found and molded into a rational practice that people around the world could exercise. Finally, to propagate that belief, an organized directional leadership was created, originally from Buddha’s disciples, that became the Sangha. Unfortunately, Thailand has secured a state hold over Buddhism in the country, something that Buddha would never have countenanced and something that has done little good but perhaps much damage to the faith and how it is practiced and perceived in the kingdom.
Belief is at the center of freedom of expression, of freedom of inquiry, of freedom of choice. Without the ability to express, to inquire, to choose, faith is false, an empty icon where dictates and doctrines mean so much more than the original ideas that the founders of those principles would ever have allowed.
It was faith in the right to choose, to express, to inquire that prompted the Scopes Monkey Trial to be conducted. Those who lived under the Constitution of the United States, who were less convinced that God created the universe and were more convinced that there was a possibility, in their thinking, that man was evolved from lower life forms finally had enough of their hands tied behind their backs and demanded that the courts finally address the issue and make a judgment that afforded all citizens more freedom and true rights of expression, of inquiry, of choice.
These are exactly the same kind of three pillars, but of freedom – expression, inquiry, choice – that are currently under (reluctant) construction in Thailand. Work is going very slow. Raw materials (courage, experience, knowledge and determination) are buried deeply and only now are being exposed. Basic infrastructure to undertake the building (social acceptance, academic support and state compliance) is still in its infancy. The foundations for the structure to be built upon (resolve, legal recourse, minimally acceptable system of justice, and adequate suppliers) are merely diagrams on a conceptual plan. And finally, the funding needed to proceed with these essential building blocks of a decent society and a truly democratic nation instead of one that only talks about it (funding in terms of cash, cooperation and people who are willing to cooperate rather than insist on ancient prejudices), is still a long way off.
Nitirat, or the Enlightened Jurists, was a development not unlike that of the Scopes Trial, sans actually taking defamation and the lese majesties laws into court. It flies in the face of orchestrated popular opinion such as that of Creationism earlier in the 20th century, but here in Thailand posing as righteous and overpowering Loyalism. Posing is chosen purposely as a descriptive because as Ajarn Sulak has written, real loyalty demands dissent. Of all the yes men in weak administrations that depend on fear and omnipotent power to punish, making that far worse is the readiness of those who should be asking questions to instead use the overt power given to them to oppress their fellows.
Given the diverse resources present in Thailand these days, it is remiss for them not to work together to press forward multiple cases to be held in criminal and civil courts regarding the lese majeste laws and related defamation statutes. The unfortunate fact for any such effort is that the only lawyers likely to be willing to undertake such an arduous litigation effort are Red Shirts or certainly those who despair of the Yellow Shirt forced loyalty syndrome. Anyone acting as a plaintiff in cases not just challenging the lese majeste and defamation laws would be seen as sympathetic to the Red Shirt (and thus, of course, pro Thaksin) cause.
The urgency for a need to take these two foes of democracy into the courts is unable to be overstressed. The more time that passes the more injustices that will follow. There is, in fact, the question of whether or not the charge of lese majeste might not be determined to be hate speech. It certainly possesses all of the intrinsic elements that go into hate speech, and is usually accompanied by speech and behavior of those who can easily be determined to be engaged in hate speech. Hate speech in Thailand is illegal albeit not in the same manner as it is recognized internationally. Because of centuries of apathy and repression, hate speech is more often part and parcel of the way things are done rather than an aberrant crime that needs to be identified and punished.
The Scopes Trial was a put-up deal, arranged intentionally to challenge the existing system and to achieve several objectives: center attention on an important issue, push the nation’s courts to address it and reach a proper decision, and not least, get the public and experts to debate the issue and to bring it out into the open. The potential for change when such efforts are exerted is not lost on those directing Thailand’s national affairs. It is why so many laws, regulations, folkway wannabees and mores are mixed in the same loyalist pot to stir emotion, enhance publish support of state power, silence opposition and prolong the status quo. Should academics really begin openly questioning suppositions and dictates, should students openly challenge ancient isms and instant paranoia, should people of Thailand independently begin to feel free enough to ask legitimate questions and to express their opinions based on rational analysis, the gig would be up.
It is thus truly in the interests of the state that court cases involving lese majeste and the overall defamation regime in law not be taken into the courts for public scrutiny and academic challenge, not be allowed to disturb established thinking. If this reluctance and insistence is permitted to continue, not only will little change but little will improve. As the sign says, “Freedom is not free.”
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