Ah Kong, Lesè Majesté, and Article 17 of the ICCPR

On 14 December 2011, Sittisak Wanachakit, Justice Court spokesperson, made an extensive comment, published on กรุงเทพธุรกิจ, on the case of Ah Kong, the 61-year-old man recently sentenced to twenty years in prison under Article 112 of the Thai Criminal Code (the lesè majesté law: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years”) and the 2007 Computer Crimes Act. Ah Kong’s crime was to allegedly send four SMS messages with alleged anti-monarchy content. In the preface to his statement, Sittisak explained that he decided to issue a formal statement given the interest this case has generated both many sectors of Thai society and various foreign governments. Much of the criticism from various circles has not been based in careful analysis of complete information, he alleged, so the court could not let it go unchallenged. As if to underscore the unwelcomeness of this interest and scrutiny, Sittisak compared its effects on the court and judiciary with that of the (rotten) floodwater that inundated the the city of Bangkok recently [“เหมือนกระแสน้ำที่ไหลบ่ามาท่วมศาลและกระบวนยุติธรรมเช่นน้ำท่วมกรุงเทพฯที่ผ่านมา”].

For the purposes of clarifying misunderstandings, Sittisak noted that he would bring several pieces of information from the court file into the public domain. His argument was based around debunking five misunderstandings about this case, as follows: 1) Ah Kong did not commit any wrongdoing, so then why was he sentenced to prison; 2) The sentence of 20 years is too harsh; 3)  Ah Kong is elderly and so should receive a reduced sentence, his freedom, or bail; 4) Thai courts do not abide by international standards and Ah Kong should have access to the freedom of expression; and 5) Article 112 and the 2007 Computer Crimes Act should be repealed. His responses to each of these was laced with contempt for the critics of the court and an assumption that the criticism was born out of a lack of knowledge.

While each of Sittisak’s points demands careful attention, here I would like to briefly address his comments about Thai courts, freedom of expression and international rights standards. Of equal concern to the contempt to which Sittisak seems to hold the court’s critics is what I read as a cynical use of the International Covenant on Civil and Political Rights (ICCPR) to justify the use of Article 112 of the Thai Criminal Code. The ICCPR, along with the International Covenant on Economic, Social, and Cultural Rights (ICESCR), take the ideas for the protection of human rights outlined in the Universal Declaration of Human Rights (UDHR), and make them legally binding for states which choose to ratify them. 

As Sittisak notes, Thailand became a state party to the ICCPR on 29 October 1996 and it is entered into force in Thai law on 29 January 1997. He argues that Thai law fully guarantees the protection of Article 19, reproduced below, which addresses the protection of freedom of expression:

1.    Everyone shall have the right to hold opinions without interference.

2.    Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3.    The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

There is slippage within both the text of Article 112 of the Thai Criminal Code and the 2007 Computer Crimes Act, which permits for actions damaging to “national security,” which can be understood to include speech about the monarchy, on which some conservative critics have argued State responsibilities under Article 19 can be abrogated. 

Yet rather than doing so, Sittisak invoked another article of the ICCPR in support of Article 112. In defense of the enforcement of the lesè majesté law, under which an increasingly epidemic number of Thai citizens have been intimidated, prosecuted, and incarcerated, Sittisak cited Article 17 of the ICCPR. Article 17 reads:

1.    No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2.    Everyone has the right to the protection of the law against such interference or attacks.

Using the ICCPR as justification for the 20-year incarceration of a man for allegedly sending 4 SMS messages is a cynical ploy which displays a profound lack of concern for human rights.  Invoking Article 17, most often used as justification for the right to privacy, however, also raises a series of critical questions within this context. Sittisak argued that while Article 19 of the ICCPR guarantees freedom of expression, Article 17 means “the use of that freedom must be done responsibly and must not violate the rights of individuals, as all individuals have the right to protect their reputation and honour and this must be protected within the law as well” [“การใช้ สิทธิดังกล่าวต้องทำด้วยความสำนึกรับผิดชอบและไม่ล่วงละเมิดสิทธิของบุคคล  เนื่องจากบุคคลทุกคนย่อมมีสิทธิ ในการรักษาชื่อเสียงและเกียรติภูมิของตนและต้องได้รับการคุ้มครองตามกฎหมาย ด้วยเช่นกัน”].

Yet there are other possible readings of Article 17 in relation to the case of Ah Kong and other cases prosecuted under Article 112 of the Thai Criminal Code and the 2007 Computer Crimes Act. Before outlining these, I turn briefly to General Comment 16 of the Office of the UN High Commissioner for Human Rights (OHCHR), released in 1988, which offers the UN interpretation of Article 17 of the ICCPR and makes suggestions for how it should be dealt with domestic law. The comment is worth reading in full, but several points merit closer examination within this context. The OHCHR noted that Article 17 deals with unlawful actions and arbitrary interference by State and other actors. By “lawful,” they mean “that no interference can take place except in cases envisaged by the law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.” On “arbitrary interference,” the OHCHR explained that it “can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.” The practice by which Article 112 and the 2007 Computer Crimes Act have been used in recent years could be criticized as being both unlawful and arbitrary within these terms.

Of broadest relevance, however, is a section of General Comment 16 on Article 17 that pertrains to surveillance: “Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wire-tapping and recording of conversations should be prohibited. Searches of a person's home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.” Ongoing web tracking projects by the Special Branch Police and the Ministry of Information and Computer Technology, and Deputy Prime Minister Chalerm Yubamrung’s recent announcement about cracking down on websites deemed to have anti-monarchy content all constitute surveillance.

As dissonant as using the ICCPR to justify the prosecution and harsh sentencing of Ah Kong, Sittisak Wanachakit made another comment about the status of Ah Kong within the Thai judiciary in Thailand that raises more concerns for this critic than it allays. He commented that “Until his case reaches the final point [Supreme Court], Ah Kong is presumed innocent” [“อากงยังถูกสันนิษฐานว่าเป็นผู้บริสุทธิ์จนกว่าคดีจะถึงที่สุด”]. Yet this statement is buried in the middle of a press statement in which Sittisak has justified the 20-year sentence on the basis of the alleged rude and damaging content of the four SMS messages, and in which he has invoked one of the most important international human rights instruments to justify the stripping a citizen of his rights. I would like to take Sittisak’s assertion seriously, but so far, I have seen no evidence in support of it.

Elizabeth Fitzgerald is the pen name of an observer of Thai politics and history. She can be reached at lizziefitzy@gmail.com.

Comments

Very well-written...I

Very well-written...I think.
That Sittisak sits on the bench of yet another institution that can not be criticized hardly qualifies him for the Olympics Transparency Gold Medal. Put in a room with international legal authorities these guys can only grimace, gripe and cringe.
When so-called military-protected jail-detractors-easily "authorities" provide self-effacing faulty logic arguments to justify their support for repression, what does that say? They are hardly open to common sense arguments.
The Thai bench has conducted trials but never been subjected to one. Now that the process may have been started, the heat is uncomfortable. Malaysia has its own ACLU organization, http://mclm4malaysia.wordpress.com/about-us/, something similar to what Thailand is lacking but sorely needs. Thailand needs a legitimate civil rights legal association that can retain freedom for those accused and press for proper defense in LM and other cases sans the brute force used in Thai society to quash diversity and crush inquiry.
If Ah Kong is presumed innocent, where is he at the moment? Home putting a defense together, or imprisoned by a system with no need to provide evidence a priori, and with certainly no proof of justification that his actions affected, even minutely, national security?
Show some compassion, not passion, show some mercy, not mercilessness. Authorities can keep track of this old man easily enough. Let him go home and put together something Thailand does not seem to countenance - a decent defense based on free will and diversity. Stop begging the question.

Please go back to 'go',

Please go back to 'go', fizzylitzy :

1) Ah Kong did not commit any wrongdoing, so then why was he sentenced to prison;

  1. Did not the court admit that the prosecution had no case?
  2. Did not the court cite AhKong's inability to prove his innocence, in the face of the State's inability to prove his guilt, as the reason they imprisoned him?
  3. Is not the requirement to prove one's innocence, in the face of charges backed by no real evidence, an indication, prima facie, of either incompetence or corruption of any court making such a requirement?
  4. Is this not ground zero for this case and this court?

Requiring the defendant to prove his or her innocence, rather than the state to prove their guilt, seems to be another of the Thai courts' systemic violations of basic international standards of justice.
- cont'd below -

Someone named 'Kerrie' linked

Someone named 'Kerrie' linked elsewhere to http://www.ilaw.or.th/node/1229

From the English portion of the report on the actual court proceeding therein :

DTAC : ‘Thammanun also explains that the last digit of the IMEI number is not significant because the DTAC company always puts 0 at the end.’

True : ‘Chakrapan said that modifying the IMEI number for the imported phones is an old system and is not practiced anymore in the present days because newer phones are universally designed. Cross-examined, Chakrapan explains that IMEI modification can be done by any mobile shops.’

Pol. Col. Siripong Timula – Expert on Technological Forensic Science of the Technology Crime Suppression Division clarifies on the IMEI number that the last digit could vary.

Pol. Col. Siripong further says that the IMEI number cannot repeat itself but can be changed at phone kiosks/shops. The change will also have an impact on the database.

From wikipedia :

The International Mobile Equipment Identity or IMEI (play /aɪˈmiː/) is a number, usually unique.

There is a misunderstanding amongst some regulators that the existence of a formally-allocated IMEI number range for a GSM terminal implies that the terminal is approved or complies with regulatory requirements. This is not the case.

The linkage between regulatory approval and IMEI allocation was removed in April 2000, with the introduction of the European R&TTE Directive.

Since that date, IMEIs have been allocated by BABT (or one of several other regional administrators acting on behalf of the GSM Association) to legitimate GSM terminal manufacturers without the need to provide evidence of approval.

The IMEI number is not supposed to be easy to change… However this is not always the case: a phone’s IMEI may be easy to change with special tools.

“New IMEIs can be programmed into stolen handsets and 10% of IMEIs are not unique.” According to a BT Cellnet spokesman quoted by the BBC.

- cont'd below -

All that the State had on

All that the State had on AhGong was the association of the first 14 digits of an IMEI with the SMSes in question which matched the first 14 digits of an IMEI in a phone in Amphon's possession. Yet clearly the IMEI in question could have been copied from or inserted into Amphon's phone by a third party such as, for instance, the mobile repair shop which had Amphon's phone in the early part of the May in question.

If I were looking for a IMEI to cover the tracks of an SMS I was about to send, Amphon's would look good to me.

"Just the facts, ma'am", Joe Friday used to say. If the court had had proof that Amphon had sent the SMSes then all the arguments about abuse of his rights would come into play.

But the court did not have any such proof. They made, it seems to me, the most egregious error possible for a court to make. They railroaded a defendant on the basis of his inability to prove his own innocence.

Amphon was held in prison since 18 Jan 2011 under the Thai courts' long-standing sentence first - verdict after policy.

An author at wikipedia laconically sums up the inherent injustices of remand imprisonment or detention of a suspect...

  • One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to restore to the defendant the days already spent in jail.
  • Pretrial detention alters a defendant’s incentives by making his best-case scenario not zero days in jail, but the length of time served pretrial.
  • Therefore, he may be more likely to plead guilty if his chances of acquittal are low, or
  • if his expected sentence if he pleads guilty is less than the amount of jail time he would serve pretrial.
  • Pretrial detainees may also find it harder to mount an effective defense.

Would be nice if Prachatai

Would be nice if Prachatai wrote their funding in Thai also - or don't their Thai readers have a right to know they are funded millions of baht a year by the US government? It would be interesting if Prachatai also gave a more vigorous defense of their taking of this money from confessed corporate fascists and warmongers, including one of Thaksin's lobbyists, Kenneth Adelman and that doesn't constitute a legitimacy crushing conflict of interest...

Prachatai has disgraceful contempt for the truth.

I would be reluctant to

I would be reluctant to equate Tony's input to those "invest with me" solicitations from Nigeria, but they are beginning to sound similar.

I note Amphon apparently made

I note Amphon apparently made the texts around May 2010....he was arrested August 2010....had there been any credible malice, threat or violence or harm against a royal, esp the Queen, or shocking statement as has been implied to warrant such a sentence...then why did the Thai police take three months to catch up with him?

@Tony if you feel these need

@Tony if you feel these need to be translated into Thai, can you not ask if you can translate them? copyright check though. I do know what you mean about foreign monetary backing in other countries, esp the US, and I may sound hypocritical being as I am foreign (Cambodian) mentioning on Thai matters, but I do think the Thai politicians are using this lese mageste for ill gains and debasing the Royal name to no more than a bat to which beat opponents with. Not that Thaksin was an angel either.

In fact, the latest in the

In fact, the latest in the never-ending stream of constitutions does state that an accused person is held to be innocent until proven guilty. This means that the whole burden of proof is on the prosecution (i.e. the accused is not required to prove anything, produce evidence, or even testify). The trial judge plainly stated that the prosecution failed to prove guilt, and that the accused was convicted because he failed to prove innocence.

That is the most salient

That is the most salient point in this case, Michael, thanks so much to bringing us back to it : proof that the Thai Kourts are not courts of law, but instruments of 'elite' prerogative.

Sam Deedes has pointed out a few of the anomalous characteristics of Thai Kourts at NM:

  • There are no juries in the Thai judicial system , for a start.
  • There is no such thing as a court transcript, the judge instead summarising into a Dictaphone what s/he thinks is relevant at periodic junctures. This is what is typed up.
  • Witnesses address the judge with their backs to the public.
  • Furthermore, the judge presiding over the case is not alone in coming to a verdict: a committee of judges behind the scenes meet to make the final decision. Some of these judges have been only tangentially involved in the case, if at all.

A review of some of the other more egregious 'judgements' made by Thai Kourts, such as that in the case of Jintana, affirms that, in fact, the requirement that the defendant prove her/his innocence is the staple of persecution.

While the court noted that there were discrepancies in the testimony of the plaintiff, it maintained that the defendant did not provide sufficient evidence to prove that she was not guilty of trespassing and leading others to throw a rancid substance on the dining tables.