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On 10 Feb 21, the Move Forward Party proposed to the Cabinet 5 draft amendments  which the party said were aimed to promote people’s freedom of expression.

Pita Limjaroenrat, the Move Forward Party leader submitting the amendment draft on 10 February 2021.

However, they are attracting strong criticism from both reformists and abolitionists because of the disproportionate penalties and the use of the laws against anti-monarchy critics, and from supporters of the laws who see no need for change.

Both the party leader and Secretary-General have previously insisted publicly that this amendment move was not to annul royal protection but, rather, to uphold the reputation of the King, Queen, and Heir Apparent. Hence, the proposals aim to modify the law to be in line with modern times in a way that is agreeable to all amid the political crisis.

Prachatai interviewed with Chaitawat Tulathon, Secretary-General of the Move Forward Party, to get a further explanation on the decision to amend the laws. Specifically, why is he proposing to keep the penalty of imprisonment, how will facts be proved and how will the boundary between public interest and royal privacy be defined?

Prachatai: In the past, there are those wanting to  either abolish this law or disagreeing with the jail sentence.Why does the Move Forward Party still propose to keep Section 112?

Chaitawat: I have to admit that this feature of the amendment proposal will invite a lot of disagreement, from the point of view that the law should not be touched or changed at all, or that we can do a better job, such as by abolishing the prison term completely. This was the debate within the party as well. Some party MPs who were against imprisonment drafted such a version.

Chaitawat Tulathon

However, in the end, we selected the draft proposal that we think has the best chance of being accepted so that each side can use the forum of parliament with different stances and opinions to discuss it. This proposal is the minimum that we think everyone can accept and live with.

It certainly will not please those at the extremes but proposing draft laws to parliament is the first step to formally open up space for conversation. I think its significance lies in the ability to bring people from different points on the spectrum to talk to each other.

Originally, the use of Section 112 has nothing about verifying the truth, whereas this draft allows for both verifying the truth and proving that the matter is of public interest, doesn't it?

Yes. There is text on the exemption of offences and exemption of penalties. There is no offence under certain conditions. And even if it is an offence, there is no penalty if certain facts are proven.

If we take the example of King Rama X who has travelled to and resided in Germany for a period of time, which prompted the German parliament to introduce a motion questioning his execution of royal duties on German territory, the Thai government said it was his private affair. What would this case look like, once the law has been amended?

Even though it is his private affair, if it is related to the public interest, the protection applies. However, the important point in the given example, I think, is that since we have a text on the exemption from a penalty and an offence, not having anything contradicts reality because public figures including heads of state in modern society will always have people expressing criticism. Today’s world of information has come very far. The example of the news that came out in Germany is no exception. People consume news and want to know what is going on and start questioning it. 

The enforcement of Section 112, as it is now, makes this a crime. In fact, if interpreted strictly, it should not be a violation the original Section 112. That said, having a text on the exemption of penalties and offences allows for honest discussion on the topic, given that the aim is to uphold the democratic system with the monarchy as the head of state, the constitution, or the public interest.

I believe it is still better than the current Section 112 which has none of these exemptions at all. As for the ambiguity whether a matter is the private affair of the monarch or in his public role as the head of state, the boundary line will inevitably be blurred. We have to consider it on a case-by-case basis. However, for a strictly personal affair, and not a public matter, there are no exemptions. (So, it will be up to the court to decide?) Yes, at least there is a way to object. 

According to the international human rights principles, it has already been established that public figures cannot avoid being criticized.
What would be the way out?

The Move Forward Party has already proposed an amendment to Section 116. It is currently in the queue at parliament. We have amended the wording to prevent a broad and vague interpretation and made it enforceable only in cases of instigation or incitement to violence against body, life, and property. A broad interpretation, such as joining a protest, will not be considered as in its scope.

In this case, we have proposed another draft amendment to the Criminal Procedure Code, which adds Section 200/1 making it an offence for officials to distort the law. This aims to deal with a situation such as when a protester who joins a peaceful demonstration faces a Section 116 charge. That is the intention of the proposal. Until now, there has been no specific offence of this kind.

But at the same time, you may still be prosecuted in a way that does not conform to the facts, meaning you can get stuck with serious charges. This does not happen only with political expression or activities, but it is also a problem that ordinary citizens often face. For instance, sometimes in a conflict with an official, the officials in the judicial process, be they police officers or public prosecutors, can press serious charges first. So to fix this problem, our final draft adds Section 200/1 under the chapter on offences by judicial officials including inquiry officers, public prosecutors, or judges. If the officials use their power illegitimately, there will be a channel to check the power of officials. 

But adding penalties the judicial officials has in past practice been difficult in terms of holding them to account or the fact that the prosecution of officials has been the responsibility of the people. Is it sufficient to amend the part dealing with offences related to officials?

Yes. The draft just adds offences specifically for cases where judicial officials distort the law. However, it does not alter the structure to allow people to be better protected in a lawsuit against officials. For this, we will have to amend other parts.

The set of judicial reforms is not fully ready. There are ideas on the table. Currently, we are preparing to submit a draft proposal on the Public Assembly Act. In the party, we have people who are in charge of each specific issue. However, we still don’t have anything soon that is related to the judicial system. 

But this does not cover accountability of the work of the courts?

Accountability of the courts has to be separated out. In principle, these amendments are not the end of it. It is OK to include offences in cases where (officials) distort the law. But this does not change anything in terms of structure or procedures. That has to be tackled as a separate thing.

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