Thai webmaster Chiranuch found guilty

Asia Correspondent article here

Thai webmaster Chiranuch Premchaiporn was found guilty this morning of not deleting lèse majesté comments on the now defunct web board of the Thai news website Prachatai quickly enough – she was sentenced to 1 year in prison, which was then reduced to an 8-month SUSPENDED sentence and a THB20,000 (US$630) fine.

In its verdict, the court states that Chiranuch has failed to delete one comment for 20 days, whereas the other nine objected comments were deleted within 10 days, thus violating against Article 14 and 15 of the 2007 Computer Crimes Act which punishes “false data” that damages a third party, causes public panic or undermines the country’s security and “any service provider intentionally supporting” the said offenses, respectively – despite the fact that the court also states that the expectation to pre-emptively delete illegal comments was “unfair”.

Below is a full live timeline of the morning’s events…

Today at 10.00 AM (Bangkok time) the Thai Criminal Court will give its verdict against Chiranuch “Jiew” Premchaiporn, the webmaster of the news website Prachatai. Chiranuch is being prosecuted for failing to delete 10 comments made by others that are deemed insulting to the monarchy not quickly enough. She has been arrested in 2009 and again in 2011, while the website itself has been hit by numerous takedown orders and blocked repeatedly by authorities.

Chiranuch “Jiew” Premchaiporn, webmaster of the Thai news website Prachatai, awaiting her verdict at the Crminal Court in Bangkok, Thailand on April 30, 2012. Miss Chiarnuch has been charged for not deleting comments deemed insulting to the country’s monarchy not quickly enough and could face 20 years in prison.

If that paragraph above sounds familiar to you – it should be: these are exactly the same words from the live-blog from the original verdict date one month ago. However, just mere 10 minutes before it was about to start, the court decided to postpone the verdict, since it needed more time “due to the complexity of the case”.

A lot has happened since then, most notably the death of lèse majesté-victim Amphon ‘Uncle SMS’ Tangnoppakul in prison and the lèse majesté complaint lodged against Prachatai columnist Pravit Rojanaphruk. In light of these events, Chiranuch’s case could be an even more unprecedented moment that could really determine Thailand’s (dis-)regard for freedom of speech.

Dangerous lack of clarity from the Constitutional Court

Full article here

On Sunday, Prachatai reported that the Constitutional Court issued a statement regarding the complaint filed by Somyos Prueksakasemsuk’s lawyer on the issue of whether or not being charged under Article 112 of the Thai Criminal Code violated the 2007 Constitution. As a likely-not-needed reminder for most readers, Article 112 is the measure in the Criminal Code that describes the alleged crime of lèse majesté and prescribes punishments for it: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years” ["ผู้ใดหมิ่นประมาท ดูหมิ่น หรือแสดงความอาฆาตมาดร้ายพระมหากษัตริย์ พระราชินี รัชทายาท หรือผู้สำเร็จ ราชการแทนพระองค์ ต้องระวางโทษจำคุกตั้งแต่สามปีถึงสิบห้าปี"]. Rather than being considered categorized as part of the Code which deals with defamation of non-royal individuals, Article 112 is part of the section which deals with crimes against national security. This both creates the context for the lengthy punishments possible for alleged violations of the law, as well as makes it possible to deny bail to defendants and close trials to the public, as occurred in the case of Daranee Charnchoengsilpakul in 2009. On 24 April 2012, Somyos’s lawyer submitted a complaint to the Constitutional Court on whether or not the categorization of lesè majesté as a crime of national security was in violation of the rule of law as outlined in the Constitution. The complaint dealt with two specific sections of the Constitution: the second paragraph of Section 3 and Section 29.[1]

Section 3 (entire section quoted, relevant paragraph bolded) mandates:

“The sovereign power belongs to the Thai people. The King as Head of the State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution.

The performance of duties of the National Assembly, the Council of Ministers, the Courts, and the constitutional organs as well as State agencies shall be under the Rule of Law.”

Section 29 mandates:

“The restriction of such rights and liberties as recognised by the Constitution shall not be imposed on a person except by virtue of provisions of the law specifically enacted for the purpose determined by this Constitution and to the extent of necessity and provided that it shall not affect the essential substances of such rights and liberties.

The law under paragraph one shall be of general application and shall not be intended to apply to any particular case or person; provided that the provision of the Constitution authorising its enactment shall also be mentioned therein.

The provisions of paragraph one and paragraph two shall also apply mutatis mutandis to by-laws issued by virtue of provisions of law.”

Although I have not read the submitted complaint and so cannot comment on the logic offered by Somyos’s lawyer, what I would note is Somyos’s case as well as the many other cases prosecuted under Article 112 raise important questions about the rule of law and rights and liberties guaranteed by the Constitution. The repeated denials of bail, during the period before being charged and while trials are ongoing, are alone a cause for serious reflection and query.

Apparently the Constitutional Court does not share my concern. Less than a month after the submission of the complaint, on 18 May 2012, the Constitutional Court made public their decision not to accept this complaint for examination. Buried in a statement dealing with several cases, the Court explained their logic as follows:

“Although the Constitutional Court was asked to consider if various laws were contrary to or inconsistent with the Constitution, the complainant did not use his right to use other means, and therefore the complaint is not in line with Section 212 of the Constitution. Section 21 of the Organic Act on the Procedure of the Constitutional Court notes these principles: (1) [the complainant] must be an individual whose Constitutionally-protected rights or liberties have been violated by the law; (2) the complaint must ask the Constitutional Court to consider whether or not a law is contrary to or inconsistent with the Constitution; and (3) must be a case in which it is not possible for [the complainant] to use the right to use other means of examination. Therefore, there is an order not to accept these complaints for consideration.”

[“แม้จะขอให้ศาลรัฐธรรมนูญวินิจฉัยว่าบทบัญญัติแห่งกฎหมายใดขัดหรือแย้งต่อรัฐธรรมนูญ แต่ผู้ร้องยังมิได้ใช้สิทธิโดยวิธีการอื่น คำร้องจึงไม่เป็นไปตามรัฐธรรมนูญ มาตรา 212 ประกอบข้อกำหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาและการทำคำวินิจฉัย พ.ศ.2550 ข้อ 21 ซึ่งมีหลักเกณฑ์ว่า (1) ต้องเป็นบุคคลที่ถูกละเมิดสิทธิหรือเสรีภาพตามที่รัฐธรรมนูญนี้ รับรองไว้ อันเนื่องมาจากบทบัญญัติแห่งกฎหมาย (2) คำร้องขอให้ศาลรัฐธรรมนูญวินิจฉัยว่า บทบัญญัติแห่งกฎหมายนั้นขัดหรือแย้งต่อรัฐธรรมนูญ (3) ต้องเป็นกรณีที่ไม่อาจใช้สิทธิโดย วิธีการอื่นได้แล้ว จึงมีคำสั่งไม่รับคำร้องไว้พิจารณาวินิจฉัย”]

On the one hand, this short paragraph is very clear. Given that in this case, we know that principle (2) of Section 2 is not the problem as the complaint dealt with a specific law and specific sections of the Constitution, then the Court believes that the conditions in either (1) and/or (3) have not been met. Yet upon examination of both Section 212 of the 2007 Constitution and Section 21 of the Organic Act on the Procedure of the Constitutional Court (OAPCC), this short paragraph becomes strikingly inadequate and what is at stake in both (1) and (3) becomes much clearer.

Section 212 of the 2007 Constitution mandates:

“A person whose rights or liberties recognised by this Constitution are violated has the right to file a motion to the Court for a decision that a provision of law is contrary to or inconsistent with the Constitution.

The right under paragraph one shall be exercisable in the case where all other means for the exercise thereof are exhausted, as provided in the Organic Act on the Procedure of the Constitutional Court.”

Section 21 of the OAPCC [ข้อกำหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาและการทำคำวินิจฉัยพ.ศ. ๒๕๕๐] mandates:

“Individuals whose Constitutionally-protected rights and liberties are violated have the right to file a complaint to the Court for the consideration of whether or not the law is contrary to or inconsistent with the Constitution.

The use of the right in the first paragraph must be in a case in which it is not possible for [the complainant] to use the right to use other means, in line with Section 211, Section 245 (1) and Section 257, Paragraph 1 (2) of the Constitution.”

[“บุคคลซึ่งถูกละเมิดสิทธิหรือเสรีภาพที่รัฐธรรมนูญรับรองไว้มีสิทธิยื่นคำร้องต่อศาลเพื่อมีคำวินิจฉัยว่าบทบัญญัติแห่งกฎหมายขัดหรือแย้งต่อรัฐธรรมนูญได้ การใช้สิทธิตามวรรคหนึ่งต้องเป็นกรณีที่ไม่อาจใช้สิทธิโดยวิธีการอื่นได้แล้ว ทั้งนี้ ตามมาตรา ๒๑๑ มาตรา ๒๔๕ (๑) และมาตรา ๒๕๗ วรรคหนึ่ง (๒) ของรัฐธรรมนูญ”]

Now I return to the Constitution, and working numerically backwards for reasons of analysis which will become clear, consider the implications of each of the sections mentioned in the OAPCC with respect to this case, which deal with the involvement of the lower Court, the Ombudsman, and the National Human Rights Commission in referring cases to the Constitutional Court.

Section 257(2) mandates:

“The National Human Rights Commission has the powers and duties as follows: (2) to refer the matter, together with an opinion, to the Constitutional Court in the case where it agrees with a complaint addressed by a complainant that any provision of law affects human rights and begs a question of constitutionality, in accordance with the Organic Act on Procedure of the Constitutional Court”

Section 245(1) mandates:

“An Ombudsman may refer the matter to the Constitutional Court or the Administrative Court when the Ombudsman considers that any of the following circumstances occurs:

(1) any provisions of law begs the question of constitutionality, in which case the matter shall be referred, together with the opinion of the Ombudsman, to the Constitutional Court and the Constitutional Court shall consider and decide it without delay, in accordance with the Organic Act on Procedure of the Constitutional Court.”

Neither the Ombudsman nor the National Human Rights Commission has been involved in this, or in most, if not all lèse majesté cases. Here I would simply ask why not? Why is it that they do not see these cases, and the violations of the rights of those charged under Article 112 and its sister law, the 2007 Computer Crimes Act, as cases which fall into their mandate.

Finally, Section 211 of the Constitution mandates:

“In the application of the provisions of any law to any case, if the Court by itself is of the opinion that, or a party to the case raises a reasoned objection that, the provisions of such law fall within the provisions of section 6 and there has not yet been a decision of the Constitutional Court on such provisions, the Court shall submit such opinion, in the course of official service, to the Constitutional Court for consideration and decision. In the meantime, the Court may proceed with the trial but shall stay its adjudication for the time being until a decision of the Constitutional Court has been delivered.

In the case where the Constitutional Court is of the opinion that the objection of a party under paragraph one is not so essential as to warrant a decision, the Constitutional Court may refuse to accept the case for consideration.

The decision of the Constitutional Court shall apply to all cases but shall have no prejudice to final judgments of the Courts.”

In this case, the defendant and his lawyer submitted the complaint, not the lower Court. If the condition in Section 211 has not been met, does this mean that the Constitutional Court has concluded that, as noted in the next-to-final paragraph of this section, that “the objection of a party under paragraph one is not so essential as to warrant a decision”? What could be less essential than the examination of the violations of the rights and liberties of Somyos and an exponentially growing number of people accused under Article 112, from 33 complaints filed in 2005 to 478 in 2010?

What I have done in this essay is to move from the short, unclear paragraph offered by the Constitutional Court through the relevant laws mentioned in order to raise questions about their decision not to examine the complaint submitted by Somyos Prueksakasemsuk’s lawyer. But a note: I am not a Constitutional Court judge, nor am I privy to their conversations, so perhaps my critique is too harsh. Perhaps they spend their days and nights worrying about how to more effectively safeguard the rights and liberties of the citizens, who, according to the Constitution they serve and protect, hold the sovereign power in the land. I certainly hope this is the case.

Elizabeth Fitzgerald is the pen name of an observer of Thai politics and history. She can be reached at lizziefitzy@gmail.com. Should a reader have a copy of the complaint submitted to the Constitutional Court in this case, she would be both excited to read it and happy to write about it further.

Somyot denied bail

We are sad to tell you that Somyot’s tenth request for bail was denied yesterday. At the last minute the Criminal Court informed Somyot’s family and legal team that they were denying bail on the basis that Somyot’s request for a constitutional review of Article 112 has been submitted by his lawyers and this case needs to be resolved before they will act.

We argue strongly with this decision, which is a denial of his basic rights which is even more significant because of his request for a constitutional review.

Given the recent death of Uncle SMS, held in prison under Article 112 we are highly concerned about Somyot’s deteriorating health and the impact of the Court’s decision on his capacity to mount a full defence against the charges.

Submit your protest now here

Press Release

September verdict for jailed Somyot?

Hearings ended on 3 May in the trial of Thai journalist and labour organiser Somyot Pruksakasemsuk. Already held for over a year on remand, he could face up to 30 years’ jail for the publication of two articles that allegedly breach Thailand’s draconian lèse majesté law. At the time, he was the acting editor-in-chief of the magazine in which the articles appeared. He did not write them, and neither of them even mentions the King of Thailand. Lawyers for the defence have asked the Thai Constitutional Court to determine whether the lèse majesté law is constitutional and meets international standards.

The verdict on Somyot’s case will not be delivered until the constitutional issue is settled. This means that a verdict is unlikely before late September. So Somyot’s supporters are emphasising the need to maintain the international pressure for his release on bail. He has already spent more than a year in jail on remand, and the difficult conditions have worsened his existing health problems. Nine successive bail applications have been denied.

This month saw the tragic death of Uncle SMS, Amphon Tangnoppakul, the 62 year old activist being held on Lese Majeste charges. He was suffering for cancer and because of the lack of medical provision and the repeated denial of bail he was unable to receive much needed treatment. This is a brutal reminder of the human cost of having several hundred people held in prison over these charges.

The campaign demands the immediate bail of Somyot whose next bail request will be submitted on the 16th June.

The online ActNow campaign for Somyot launched by the LabourStart site on 30 April gained more than 5,000 supporters within its first week. International human rights organisations, journalists’ federations and trade unions are among those calling for Somyot’s release and the repeal or overhaul of the lèse majesté law. The ActNow campaign for Somyot is now online in seven languages, in a format that lets users send a message to the Thai Prime Minister with just a click of the mouse.

There are signs that the international pressure around the lèse majesté law is working. On 2 May, the verdict in the controversial trial of Thai webmaster Chiranuch Premchaiporn was unexpectedly put off for a month. She could be sentenced to up to 20 years’ imprisonment on lèse majesté charges. According to the Bangkok Post, “Some human rights activists said the court’s decision to postpone the verdict reflected unease among the authorities, the judiciary included, about how to handle such a high-profile lawsuit.”

Sign the petition today http://www.labourstart.org/cgi-bin/solidarityforever/show_campaign.cgi?c=1383 here

www.freesomyot.wordpress.com

http://www.facebook.com/pages/Free-Somyot/122999694453000

http://twitter.com/#!/somyotbangkokpr

The ICEM asks its members to support Somyot

Full article here

Free Somyot NOW! Unionists Urged to Send Letters Demanding Thai Justice!

The campaign to free Somyot Pruksakasemsuk, long-time Thai campaigner for labour rights, is growing as the one-year anniversary of his arrest approaches. Somyot is being held in prison only on remand, facing unproven charges of lèse majesté, or daring to “defame, insult, or threaten” the King Bhumipol Adulyadej of Thailand.”

Brother Somyot, a former ICEM Thailand Coordinator, must be freed immediately and unconditionally, states the ICEM.

The disgraceful detention and persecution of Somyot is based on two articles published in the journal Voice of Thaksin, but Somyot was not the author of either piece in question and, in fact, the articles do not threaten or insult the king. Brother Somyot was the acting editor of the publication, but was not the legal publisher.

Indisputably, Somyot is incarcerated purely for his trade union and left-leaning political activism. For those reasons, he also is not receiving a fair judicial process with violations that include hearings being relocated to distant provinces so that key defence witnesses cannot participate.

Somyot Pruksakasemsuk

Brother Somyot has been held in inhumane conditions in jail, where cells are overcrowded to the extreme. Through his transfers to distant judicial hearings, Somyot has been transported standing over 4,000 kilometres in a cage on the back of a truck and bound by heavy chains.

This unacceptable treatment has moved supporters to push hard for Somyot to be released on bail, but the courts have refused such petitions on eight occasions on the grounds that he would flee Thailand, or interfere with witnesses while on bail. Somyot is 50 and suffers from bad health, reasons why he should be released on humanitarian grounds.

The ICEM joins the large international coalition in condemning the continuing use of the “lèse majesté law” to crack down on legitimate protest in Thailand. The archaic legislation allows for harsh punishment for freedom of expression, an internationally recognised fundamental human right. Brother Somyot faces up to 15 years in prison for each of the two articles, if found guilty.

Send your protest to somyot.righttobail@gmail.com. Use the model letter found here.

A new trial of Somyot begins today, with prosecution witness hearings every day until 26 April, and defence witness hearings 1-4 May.

See more on the Free Somyot campaign website here.

Another labour and human rights defender is also in detention on non-credible charges. Brother Sirichai Mai-ngam of Thailand also has ICEM’s full support.

The ICEM Asia-Pacific Regional Conference resolved last week for the ICEM to launch campaigns supporting the two activists in Thailand so that they are released with all charges dropped.

International Metal Workers joins the campaign

Full article here

Thailand: Free Somyot
Please support the latest LabourStart campaign to free Somyot Prueksakasemsuk, a trade unionist, activist and journalist in Thailand that has been in jail since April 2011.

THAILAND: Somyot Prueksakasemsuk, a trade unionist, activist and journalist in Thailand has been in jail since April 2011 on charges of lèse majesté. The charges allege that he has defamed the King by publishing two articles in the magazine he edited, The Voice of Thaksin. Somyot, a former ICEM Thailand Coordinator, is innocent of these charges, a position supported by expert witnesses and human rights organizations.

An international campaign has been underway for the last 12 months to secure his release, which has included demonstrations across the region and a hunger strike by Somyot’s son, Tai, for 122 hours earlier this year. The campaign is supported by a number of international and national trade unions and human rights organizations, including the International Federation of Journalists, International Federation of Chemical, Energy, Mine and General Workers’ Unions (ICEM), Article 19 and the National Human Rights Commission in Thailand.

Somyot is now in the last week of hearings and we are concerned that a fair trial takes place. He has been denied bail nine times and is experiencing extraordinarily harsh conditions. Thai trade unions will hold a demonstration outside Parliament and the UN delegation in Bangkok on the April 30.

Please support the online campaign at LabourStart here:

http://www.labourstart.org/cgi-bin/solidarityforever/show_campaign.cgi?c=1383

For more at ICEM’s website go here:
http://www.icem.org/en/78-ICEM-InBrief/4984-Free-Somyot-NOW-Unionists-Urged-to-Send-Letters-Demanding-Thai-Justice- Apr 30, 2012 – ICEM

Reporters without boarders call for Somyot’s release

Full article here

CALL FOR MAGAZINE EDITOR’S RELEASE AFTER TRIAL ON LÈSE-MAJESTÉ CHARGES
PUBLISHED ON FRIDAY 4 MAY 2012.

Reporters Without Borders again urges the Thai authorities to release Somyos Prueksakasemsuk, the former editor of the banned magazine Voice of Thaksin, who was tried on lèse-majesté charges during the past four days in Bangkok, with witnesses for the prosecution and defence giving evidence. Somyos has been detained for the past 12 months.

“The nine bail requests for Somyos during the past year were all rejected on the grounds that he could influence witnesses if he were released before his trial,” Reporters Without Borders said. “Now that the trial is all but over, we reiterate our call for his immediate and unconditional release.”

A Reporters Without Borders representative was able to speak briefly with Somyos on 1 May, shortly after Somyos testified in his defence. “I just want to expose the facts,” he said. “If I am punished for that, then so be it.” Somyos’ wife, who visits him once a week in prison, said the 50-year-old journalist seems to have been treated acceptably in prison, but his mental health is deteriorating.

In his testimony, Somyos argued that the two February 2010 articles that prompted his arrest did not refer to the monarchy. “I did not really imagine that these articles would be seen as criticizing the monarchy,” he testified. “In my view, the author was just referring to the Thai elite.” For the first time he revealed the real name of the person who wrote the two articles under the pen-name of Jit Polachan.

“The articles contain no explicit reference to the monarchy,” Reporters Without Borders said. “They and the law are being interpreted in a particular way in order to punish a ruling party opponent. We condemn this political use of the draconian lèse-majesté legislation to silence Somyos, and we urge the court not to convict him on the basis of a purely subjective interpretation of the articles.”

Somyos’ two defence lawyers petitioned Thailand’s constitutional court on 24 April, asking it to determine whether the lèse-majesté law is constitutional and complies with international legal standards, and requesting a suspension of the trial until it issued its ruling.

A member of the United Front for Democracy Against Dictatorship (better known as the “Red Shirts”), Somyos was arrested on 30 April 2011 after refusing to identify the person who wrote the two articles that allegedly defamed the king. He was formally charged on 26 July 2011 on two lèse-majesté counts for which he could get a combined sentence of up to 30 years in prison.

The court that is trying Somyos will not issue a verdict until the constitutional court has issued a ruling.

Thailand is classified as a country “under scrutiny” in the “Enemies of the Internet” report that Reporters Without Borders updates every year.