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Ah Kong should have access to the freedom of expression; and 5) Article 112 and the 2007 Computer Crimes Act should be repealed.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 firstname.lastname@example.org.