After the 20 year sentence for “Uncle SMS” put lese majeste laws, the Bangkok Post has an editorial:

His arrest and prosecution, however, point a bright light on the two laws that continue to be used so frequently. Article 112 of the Criminal Code is the original lese majeste law, forbidding offensive statements or actions against royalty, under pain of arrest and imprisonment. The newer and sometimes insidious Computer Crime Act forbids the same acts on a computer (or, apparently, in Ampon’s case, a mobile phone).

The Computer Crime Act is subtly unsafe, because it was designed and sold to the public, most recently in 2007, as a weapon to use against hackers and other white-collar criminals. It has been used far more frequently against freedom of speech, and has featured in almost all recent lese majeste cases. It is said that prosecutors use the Computer Crime Act in such cases because it calls for even harsher sentences than the Criminal Code, which has a maximum penalty of 15 years for offences against the monarchy.

The lese majeste laws should be reviewed and updated, so they can be brought into modern times like all other laws. There also needs to be a high-level review, preferably by the government in a transparent manner, over the use of the laws.

…
As a result, some questionable prosecutions result, and the country’s image abroad has been badly harmed. A serious inquiry into the lese majeste law and its enforcement can reveal loopholes which should be closed.

BP: The Computer Crime Act is just being used as an electronic form of lese majeste law. It is odd that the Computer Crime Act seems to be only used only against freedom of speech and not against other computer crimes.  This is question of resources with the police, DSI, and MICT.

Over the years, there has been a large increase in the number of lese majeste cases. See here and here (at end of the post). A direct insult is not required; a mere indirect assertion will suffice as court judgements have made clear – see these four cases.

To see how the law and application of the laws have changed, have a look at this paper (PDF) co-authored by Streckfuss, and particularly the comparison of a case in 1939 with a more recent case in 1988 and you can see how the law has changed over time. The penalties have increased and there is a much stricter application. Chris Baker in the Bangkok Post reviewing a TRUTH ON TRIAL IN THAILAND: Defamation, Treason, and Lese-Majeste (written by David Streckfuss):

Second, the authoritarian regimes that have appeared regularly since 1958 have strengthened defamation laws, in order to stifle criticism, debate and independent thinking. The 1958 coup government enlarged the lese-majesty law to cover “any matter infringing on His Majesty the King”. The 1976 coup government increased the maximum penalty from seven to 15 years. The 1991 coup government raised the penalties for personal defamation so steeply that defamation charges became a useful tool for politicians, officials and institutions to intimidate critics into silence. The 2006 coup government expanded defamation laws into cyberspace with staggering penalties.

One other problem is that of standing – which is who is able to file a complaint – and as BP blogged back in 2007:

Standing to bring an action under section 112 is not limited to the monarchy and anyone who thinks the monarchy has been harmed is allowed to bring an action.[19] This makes it an attractive tool to suppress political speech because unlike civil defamation suits where the plaintiff needs a lawyer and could possibly incur substantial legal resources in bringing a claim, lese majeste is a criminal action brought by the state without any cost to the complaint.

David Streckfuss in an op-ed for the Bangkok Post in 2007 suggested a solution:

A rather simple solution suggests itself. Within Sections 101 and 102 of the Norwegian law code is the standard lese majeste formula: ”Any person who defames the King or the Regent shall be liable to detention or imprisonment for a term not exceeding five years.” But Section 103 adds the intriguing sentence: ”Prosecution of any defamation pursuant to sections 101 and 102 shall be initiated only by order of the King or with his consent.”

If abolition of the lese majeste law in Thailand seems unimaginable; if the police and prosecutors feel compelled to pursue charges; if Thai society itself cannot show restraint in making the charge despite the apparent displeasure of the King, then maybe the addition of this single clause may set things right. The King has done three remarkable things since December 2005. He has come out as an advocate for freedom of expression in Thailand by opposing the use of lese majeste law. He has invited criticism. And while others called for the King to intervene and fix the political impasse, the King instead pointed out that a more democratic option is available: the courts. What a marvellous addition to the King’s contribution.

With the worldwide attention on the King as the longest serving monarch, what a wonderful gift it would be for Thai society to give him or the Privy Council the discretion to take the appropriate measures needed to defend the reputation of the monarchy. Amend Section 112 of the Thai penal code by adding the clause that makes the use of the lese majeste possible ”only by order of the King or with his consent.’‘

Otherwise, the lese majeste law in Thailand will ever be ready at hand to serve as a weapon in the political arena, always to a detriment to the institution the law intends to protect.

BP: Then the other matter is on how the law is enforced. The Truth for Reconciliation Commission of Thailand in its report to the government as presented in September as summarized below – English summary here and Thai language document list can be viewed here:

6. TRCT is concerned with the situation pertaining to the prosecution of cases concerning the lèse majesté under Section 112 of Criminal Code and Computer Related Crime Act B.E. 2550 (2007), which apparently increase in terms of number of cases, that it could have political impact. TRCT believes that although the government has the obligation to vigorously protect the monarchy highly regarded by Thai people with the utmost reverence from being defamed and violated by inappropriate behaviors and acts, the use of measures of criminal prosecution regardless of the criminal policy and the control guidelines for proper enforcement can implicate complicated effects at both the national level during the political conflict and the international level which places importance on the freedom of expression. At present, the political development and the enforcement of lèse majesté in Thailand phenomenally become the issues of interest for the United Nations, international organizations relating to human rights, and several countries.

Consequently, TRCT conceives the use of lèse majesté during this period is directly related to political conflict inside the country. The appropriate solution of this problem will result in a positive effect to the monarchy and play a significant role in mitigating the conflict of the country to help achieve reconciliation. In this respect, TRCT is of the opinion that it should be proceeded as follows:

6.3 The government should provide for the unity and integration of agencies involving the enforcement of law concerning lèse majesté cases. They should have a mechanism with a capability to determine appropriate criminal policy and to categorize the cases by considering the degree of the behavior, intention, motivation for the commission, status of the perpetrator, and overall context of the situation leading to the commission.

The actual problem situation in the Thai society in the present time should be taken into consideration that the political conflict like this has never happened before as there is an attempt to take the unfaithfulness against the monarchy as a political issue. All parties must essentially take into account the highest advantage from presenting the utmost honor to the monarchy.

6.4 With regard to the prosecution of lèse majesté cases, the prosecutor, who has an important role in using discretion whether to prosecute or not, should put emphasis on a means for ordering cases by using discretion (Opportunity Principle), which is a universal power of the prosecutor. Although there is adequate evidence for prosecution order, the prosecutor must place importance on weighing the advantages and disadvantages of the prosecution, taking into account the public interest in essence. In this case, the issue the prosecutor must consider is which way between to order prosecution and not to order prosecution is highly beneficial for protecting and presenting the honor appropriately to the monarchy. This means is used in the countries which have the monarchy such as the Netherlands.

6.5 The government should arrange for the temporary release of accused persons and defendants in lèse majesté cases since the severe accusation is not a legal reason for denying the right to temporary release of accused persons and defendants, which is the fundamental right under the law. This could be seen in the case that the court has granted the temporary release in other cases which have a higher scale of punishment than the lèse majesté case such as a charge of murder, which the court has usually granted the temporary release, which is a fundamental right.

6.6 The government should consider reviewing the prosecution of cases which expand the issue of lèse majesté law to a large extent during the political conflict such as the accusation and the propaganda on the conspiracy to “overthrow the monarchy”. In this respect, the interpretation of the law might be too broad to affect the reconciliation in the nation and adversely affect the protection of the monarchy. The further prosecution must be undertaken by considering the explicit evidence regarding specific individual behaviors to prove guilt in accordance with the rule of law.

AFP in September:

Yingluck Shinawatra, whose brother Thaksin was ousted in a 2006 coup that opened deep divisions in the kingdom, said the government accepts a report from The Truth for Reconciliation Commission of Thailand, received last week.

“The cabinet received recommendations and in order to create an atmosphere for reconciliation and in line with the rule of law… the government agrees to review all criminal charges and lese majeste cases to ensure fair investigations,” she told reporters.

She also vowed to “coordinate to secure temporary release of political prisoners”, in line with the commission’s advice.

Government spokeswoman Titima Chaisang said in cases where judges denied release for political prisoners, the commission had recommended they be held in special areas, not ordinary prisons.

She said she was “seeking clear explanation” from the Justice Ministry over cases which have already been tried and resulted in conviction.

The red shirts lead by Thida went to speak with the Justice Minister as reported by the Bangkok Post:

The first point called for acknowledgement that all detained political crime suspects are entitled to bail by the Rights and Liberties Protection Department.

The second demanded that if a political crime suspect has not been bailed, they they should be held in an appropriate prison and receive different treatment from general criminals. The third urged the delay of any verdicts as the country is still in political transition and the rule of law is not firmly established.

The last point was a request to reconsider charges against political prisoners that might have been too excessive.

Ms Thida also called on the Rights and Liberties Protection Department to examine differences between the Corrections Department and the UDD with regards the number of detained red-shirt supporters eligible for bail. The UDD has 101 names compared to 70 on the Corrections Department list.

After meeting with Pol Gen Pracha, Mrs Thida said the Justice Ministry had accepted the first and second points.

However, Pol Gen Pracha said prisoners charged with violation of Section 112 of the criminal code, widely known as lese majeste law, and the Computer Crime Act are not eligible for bail.

Mrs Thida said the 101 political prisoners will be moved to the Police Privates’ Training School in Bang Khen.

Not sure that the Bangkok Post article is correct regarding bail because their sister language paper, Post Today, has an article with a direct quote from Thida which states: “In the first instance, Pol. Gen. Pracha gave his word that he will proceed on two issues, 1. finding a suitable to place to detain people by next week. It is expected that it will be near the Police Club on Viphadee, and 2. and on number of people who are eligible for bail that it may not be 101 that UDD presented and consideration may be given to suspects under Section 112 of the Criminal Code [lese majeste] and the Computer Crime Act 2007 and for the review of these charges and a delay in the cases, UDD will submit a petition to the Attorney General and lawyers will need to be consulted,” said Thida (“เบื้องต้นทางพล.ต.อ.ประชา รับปากจะดำเนินการให้ 2 เรื่อง คือ 1.เรื่องการจัดหาสถานที่คุมขังที่เหมาะสม ภายในสัปดาห์หน้า คาดว่าน่าจะอยู่บริเวณหลังสโมสรตำรวจวิภาวดี และ2.เรื่องจำนวนผู้ที่มีสิทธิ์ได้รับการประกันตัว แต่อาจจะไม่ถึง 101 คน ตามที่กลุ่มนปช.เสนอ และจะมีการพิจารณาผู้ต้องหาตามมาตรา 112 แห่งประมวลกฎหมายอาญา และพรบ.ว่าด้วยการกระทำผิดเกี่ยวกับคอมพิวเตอร์ พ.ศ.2550 ทั้งนี้ข้อเรียกร้องในการให้ทบทวนข้อกล่าวหา และการชะลอคดีออกไป ทางกลุ่มนปช.จะต้องเดินทางไปยื่นเรื่องกับสำนักงานอัยการสูงสุด ซึ่งจะต้องหารือกับฝ่ายกฎหมายอีกครั้ง ” นางธิดา กล่าว).

Krungthep Turakit (and Kom Chad Luek) reports Thida as saying that what we proposed is not more than that of the TRCT presented to the government which has been sent to the Attorney-General, DSI, and the Office of the Judiciary. After meeting with Pracha, Thida stated that the Minister of Justice accepted to consider the detention situation that is appropriate for the cases and for bail, other agencies have to be consulted first (นางธิดา ระบุว่ายืนยันว่าสิ่งที่เรียกร้องไม่เกินกว่าที่คอป.ได้สรุปแนวทางเสนอรัฐบาล ซึ่งได้มีการ ส่งต่อไปยังสำนักงานอัยการ ดีเอสไอ และสำนักงานศาลยุติธรรม ภายหลังเข้าพบพล.ต.อ.ประชา รมว.ยุติธรรมแล้ว นางธิดา กล่าวว่าเบื้องต้น รมว.ยุติธรรม จะรับพิจารณาเรื่องสถานที่คุมขังที่เหมาะสมตามพฤติการณ์คดี ส่วนเรื่องการประกันตัว ต้องติดตามหน่วยงานที่เกี่ยวข้องอีกครั้ง).

INN states that this is unclear whether those under Section 112 and Computer Crime Act will be granted bail (ข้อมูลยังไม่ชัดเจน นอกจากนี้ ในกรณีผู้ที่ทำความผิดพระราชบัญญัติว่าด้วยการกระทำความผิดเกี่ยวกับคอมพิวเตอร์ และคดีหมิ่นพระบรมเดชานุภาพ ตามมาตรา 112 นั้น จะสามารถพิจารณาให้มีโอกาสในการประกันตัวได้)

BP: Hence, it is unclear for now what is happening regarding the bail situation – the Bangkok Post is on its own on that part (no one quotes Pracha – all papers quote what Thida says Pracha said).

Amending the law seems unlikely now, but will the Yingluck government actually proceed with the review of lese majeste cases? The indictment in the Uncle SMS case was handed down in January, but there are plenty of other cases in the system – what will happen to those cases? What about bail?