(2010) 2(1) Journal of Media Law 115137

The Struggle for Freedom of Expression in Thailand: Media Moguls, the King, Citizen Politics and the Law
Peter Leyland*

INTRODUCTION Many would argue that in any democratic system freedom of expression becomes a primary right. Indeed, this right has been called the very life-blood of democracy.1 This article explores the concept of free speech in relation to the constitutional situation in Thailand. Recent constitution-making in Thailand has sought to establish democratic values in a Thai cultural context. In seeking to modernise its constitutional and political system, Thailand has faced the challenge of defining a general right to free expression while preserving respect for its revered King. It has also been necessary to introduce state regulation to limit the domination of mass communications by rich and powerful individuals. Some reference will be made to the constitutional provisions and related laws that set out these freedoms, but we will see that the manipulation of aspects of these laws to promote political ends has become a part of recent Thai experience. On the one hand, under the 1997 Constitution Prime Minister Thaksin Shinawatra was able to use his wealth combined with political power to dominate the principal media outlets of television broadcasting, the press and telecommunications. On the other hand, since the military coup in 2006 forces claiming loyalty to the King have increasingly invoked the lse-majest law to silence opposition and to suppress political debate. Certainly from a constitutional standpoint free speech can be regarded as a principle of fundamental importance which can be defended on a number of familiar grounds.2 In
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Professor of Public Law, London Metropolitan University. I would like to thank Professor Andrew Harding, Surutchada Chullapram and Professor Conor Gearty for their very helpful comments on an earlier draft of this paper. I would also like to thank Anna Razeen for her assistance in researching this article. Lord Steyn in Sims v Secretary of State for the Home Department [2000] 2 AC 115, 126. C Gearty, Civil Liberties (Oxford University Press, 2007) 122ff.

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the first place, the freedom to express and exchange ideas can be regarded as the prerequisite for any form of participatory democracy. Indeed, there is a particularly strong reason for the special protection of political speech under any constitutional system: Political speech is immune from restrictions because it is a dialogue between members of the electorate and between governors and governed, and is, therefore, conducive, rather than inimical, to the operation of a constitutional democracy.3 In a rather different sense, placing restrictions on open debate will prevent the discovery and publication of accurate facts and valuable opinion. While it might be contested whether free speech will lead to truth,4 it can be maintained that better decisions will emerge from uninhibited discussion than from a process regulated by the state.5 As one commentator explains: Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions, a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of governmental power in a more general sense.6 It may be concluded, then, that it is wrong for those that govern to decide whether citizens have access to ideas. However, the problem is that freedom of speech is never applied as an absolute concept. Rather, the prohibition of hate speech, control of pornography, regulation of advertising, restrictions in relation to national security etc are frequently justified in the public interest. In fact the breadth of this freedom of expression becomes a pivotal issue for any constitution. On the other hand, there is overwhelming justification for ensuring that verbal or printed attacks on the government should generally be immune from regulation. Indeed, whether a nation qualifies for designation as a liberal democracy might be determined, in part at least, by first observing the extent to which criticism can be made by employing the normal channels of press, television, radio and internet; second, by considering the scope of the laws which might be used to prevent legitimate criticism of the government; and third, by assessing the degree of independence of the prosecuting authorities and/or judicial system in dealing with cases suppressing expression that have a strong political dimension to them. The issue of free speech will be addressed at two levels. In the first part of the article we consider the formal position under Thailands 1997 and 2007 Constitutions by evaluating the measures directed at safeguarding freedom of expression, and, in particular, the laws introduced to regulate broadcasting and the press and to provide public interest broadcasting.7 The remainder of the discussion addresses the Thai-specific dimension

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E Barendt, Freedom of Speech (Oxford University Press, 2007) 156. Truth is defined here as embodying an autonomous and fundamental good. Barendt (n 3) 11. Schauer, quoted in Barendt (n 3) 21. Freedom of speech is often regarded as a liberty against the state or a negative freedom, and the protection of free speech may be relevant in ensuring the protection of minority rights.

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by concentrating on the controversial lse-majest law. While this law was conceived to protect the monarchy by restricting adverse comment aimed at royal personages, it has repeatedly been used much more widely to stifle criticism and, in turn, it will be argued that this calls into question whether it can remain in its current form under a democratic constitution.

HUMAN RIGHTS AND FREEDOM OF EXPRESSION IN THAILAND Since the death of Rama V in 1908 there has been a continuous struggle for democracy and human rights in Thailand. Absolute monarchy ended officially in 1932, but the degree to which there has been a real social contract leading to popular participation in government8 has been a matter of ongoing concern. This has been particularly true since 1932, but it is highly significant that a heavy emphasis was placed on the protection of rights in the 1997 and 2007 Constitutions. In both texts constitutional guarantees have been supported by ostensibly strong checks and balances. The problem has been that the entire constitutional and political system has been repeatedly undermined by vested interests which often conflict with one another. Freedom of expression is set out as a fundamental constitutional right,9 meaning that, in theory, Thai citizens have their freedom of expression guaranteed under the Constitution. There is nothing exceptional in finding that the constitutional definition refers to legal provisions that might qualify freedom of expression. Article 45 proceeds to set out predictable reasons why there might be restrictions on this freedom. These are identified as: security of the State10, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals or preventing the deterioration of the mind or health of the public. As already noted, freedom of speech is always a relative concept which is hedged with constitutional and/or legal exceptions of one kind or another. In having exceptions Thailands Constitution is

V Muntabhorn, Human Rights in the Era of Thailand Inc in R Peerenboom, C Petersen and A Chen (eds), Human Rights in Asia: A Comparative Legal Study of Twelve Asian Jurisdictions, France and the USA (Routledge, 2006) 321. 9 Constitution of the Kingdom of Thailand 2007, Art 45: A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicize, and make expression by other means. The restriction on liberty under paragraph one shall not be imposed except by virtue of the provisions of law specifically enacted for the purpose of maintaining the security of the State, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals or preventing the deterioration of the mind or health of the public. 10 See eg A Harding, Emergency Powers with a Moustache: Special Powers, Military Rule and Evolving Constitutionalism in Thailand in V Ramraj and A Thiruvengadam (eds), Emergency Powers in Asia (Cambridge University Press, 2009).
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no different from other constitutions. However, in Thailand the Press Act 1941, which granted the authorities wide powers of censorship, remained on the statute book until 2007 and this legislation was used by government to muzzle criticism.11 It has now been replaced by the Press Registration Act 2007, which is intended to prevent the authorities from censoring or closing down newspapers. The Act also reduces the liability of editors and publishers for defamation, which is a criminal offence in Thailand. However, the Act makes no difference to the blanket application of the lse-majest law discussed later. As we will observe shortly, not only must the lse-majest law be added to these exceptions, in addition, recent sweeping restrictions have been introduced in relation to internet usage. The issue becomes whether the rights afforded to citizens are, in practice, protected, and whether the exceptions are so far-reaching as to undermine the fundamental constitutional guarantees. Thailand is a signatory to both the United Nations Universal Declaration of Human Rights 1948 and the binding International Convention on Civil and Political Rights 1976, which under Article 19 guarantees citizens right to free speech. Despite having its own internal human rights constitutional watchdog since 1997,12 which was designed to police this area, some Thai laws and practices of the authorities in relation to free speech have almost certainly been in breach of these international obligations. The remainder of this article concentrates on discussing control and regulation of the media and the lse-majest law. It will be apparent that in the context of Thailands recent constitutional experience these two areas in particular have posed a serious threat to freedom of expression.

MEDIA REGULATION AND CONFLICT OF INTEREST IN THAILAND Under a constitution which purports to be based on democracy, the capacity of the media to act as a check on the democratic process is clearly very important. Recent experience in Thailand draws attention to potential problems if the independence of the broadcasting media is undermined.13 It has been pointed out that in any liberal democracy the corruption of informationthrough the overwhelming control of the media, especially

For example, the 1941 Act was invoked following the publication of an article in the Far Eastern Economic Review in January 2002. The two journalists who wrote the article had their visas cancelled as a result. Thai Press Freedom Threatened, Human Rights Watch, 1 March 2002. 12 See A Harding, Buddhism, Human Rights and Constitutional Reform in Thailand (2007) 2(1) Asian Journal of Comparative Law 18; P Leyland, Thailands Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs? (2007) 2(2) Journal of Comparative Law 162. 13 Italy is another nation where conflicts of interest have arisen between the personal media interests of the Prime Minister and state broadcasting. See eg G Gardini, Broadcasting, the Free Market and the Public Interest: Is the Italian Path to Pluralism Viable? (2007) 13(2) European Public Law 239, 2504.
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television, both private and stateis a pre-condition for the debasement of the entire system.14 State institutions operating under any constitution will not be able to withstand the conflicts of interest that arise if politicians are elected with substantial media interests which are allowed to remain in their hands. Until 1997 there was no constitutionally guaranteed freedom to communicate in radio and television broadcasting mentioned in any constitutions.15 The 1997 Constitution sought to address this issue, but sections 3941 had no force in a situation where the official opposition was denied an adequate mouthpiece for its criticism between 2001 and 2006 through the domination of broadcasting media by the Thaksin government. One commentator explained the three very distinct methods of censorship and control that are most widely used in Thailand: (1) Most obviously there is outright purchase of the media outlet. Direct control is then utilised to block out any negative news coverage of the people in power. (2) Partial control can be achieved by recruiting major shareholders of that particular media outlet to join the government, thus making sure that there is no press coverage from anti-government or opposition parties. (3) Finally, leverage control can be exercised by not granting advertising budgets to anti-government media outlets.16 It is useful to keep these considerations in mind as we review recent moves to re-regulate and re-organise media ownership and control in Thailand. The 2007 Constitution has outlined the requirement for a single independent regulatory agency which is responsible for distributing broadcasting frequencies and for supervising television and radio and the telecommunications industry.17 Further, as a response to practice under the 1997 Constitution, the revised 2007 Constitution expressly prevents mergers and cross ownership, and it prohibits politicians from owning or holding shares in any newspaper, radio, television or telecommunications business.18 Serious problems relating to conflict of interest remain. It should be remembered that in Thailand senior figures in the armed forces remain major players behind the scenes in Thai politics. At the same time the military are in control of a substantial part of the media.19 Recent legislation has been passed to modify regulation, but the ownership rights
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M Jacques, The Most Dangerous Man in Europe The Guardian, 5 April 2006. D Youngsamart and G Fisher, Governance and Administration in a New Democracy: The Case of Formal Control of Free-to-Air Television in Thailand (19972007) (2006) 1 Journal of Administration and Governance 36, 40. See Dr Supong Limtanakool writing in the Bangkok Post on 4 January 2006. Art 47 para 2: There shall be an independent regulatory body having the duty to distribute the frequencies under paragraph one and supervise radio or television broadcasting and telecommunication business as provided by law. TC 2007 s 48: A person holding a political position is not permitted to be an owner or [holder of] shares in newspaper, radio or television broadcasting, and telecommunication businesses, no matter under his or her own name, letting others hold its ownership or share or by other methods, directly or indirectly, [giving] him or her the control of the operations as the owner or shareholder of that business. See D McCargo and U Pathmanand, The Thaksinization of Thailand (NiAS Press, 2005) 127ff.

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of the Royal Thai Army, the government Public Relations Department and other state agencies continued to be recognised under a new Broadcasting Act 2008. For example, the Mass Communication Organization of Thailand (MCOT) operates television stations (ModernNine, MCOT 1-2, News 24) and 62 radio stations. Channel 5 is run by the Royal Thai Army. At the same time the new legislation introduces a potentially more open structure with the recognition of three categories: public, commercial and community service, with all broadcasting requiring a licence.20 The Business Broadcasting Act 200821 seeks to introduce a robust framework of statutory regulation by granting wide-ranging licensing powers to a public regulatory authority relating to all forms of radio and television.22 Pending the establishment of a new National Broadcasting and Telecommunications Commission (NBTC), these powers have been exercised by the National Telecommunications Commission.23 It remains to be seen whether this new body will prove to be an effective independent regulator.24 The selection process for the NBTC conducted by the Thai Senate has already proved to be controversial for its failure to provide a sufficiently wide list of names.25 The experience with selecting other watchdog bodies in Thailand suggests that any failure to appoint creditable candidates able to resist government interference is likely to undermine the authority of the new body.26 The establishment of the Thai Public Broadcasting Service (TPBS) as an independent state broadcasting organ is another very significant development.27 The previous public broadcasting channel, iTV, was taken over by the Shin Corporation when this company was owned by former Prime Minister Thaksin Shinawatra. Then, the Shin Corporation was itself sold to Temasek Holdings of Singapore in 2005.28 The broadcaster, which was saddled with huge debts, ceased to function following a court ruling in 2007. The Thai Public Service Broadcasting Service has to some extent been modelled on the BBC to provide a protected element of state broadcasting. It was set up by statute and it operates
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SEAPA Report: Can New Thai PM Achieve Genuine Media Reform?, 21 January 2009, www.cijmalaysia.org/ content/view/419/9 (accessed 15 August 2009). Its full title is Operation of Radio and Television Broadcasting Business Act 2008, but it will hereinafter be referred to as the Business Broadcasting Act 2008. http://thailand.prd.go.th/view_inside.php?id=3284 (accessed 14 August 2009). Radio licences last up to 7 years and television licences up to 15 years. See s 78 Business Broadcasting Act 2008. NBTC Edges a Step Closer to Formation The Nation, 25 March 2010. NTC Hopes to Avoid more Dual-Candidate Snafus The Nation, 21 March 2009. One dispute concerned preventing a repeat of candidate names appearing on the list for the NTC and the NBTC in the new selection process. See Leyland (n 12) 169. See Thai Public Broadcasting of Sound and Pictures Organization Act 2551 (2008); A Sennitt, Thai Public Broadcasting Service to Focus on Prime Time News, Education Programmes Media Network, 20 January 2008. See S Nance, Thailands iTV takes one on the Shin Asia Times, 14 January 2007.

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under a charter. Moreover, a substantial proportion of its programme content relates particularly to news and current affairs. In fact, it is designed to be truly independent of government, as it is funded not by a licence fee, but by a tax on alcohol. It has been suggested that TPBS could also serve as a model for National Broadcasting Television (formerly Channel 11).29 This state broadcasting organisation (TPBS) requires full protection under the Constitution to ensure that it is at arms length from interference. Broadcasters more generally should have a mandate to report news and current affairs from both government and opposition viewpoints. Further, strict rules governing the coverage of elections must be applied impartially to ensure that all recognised parties receive fair coverage. Looking to the future, it remains crucially important that constitutional provisions and statutory rules designed to safeguard the public interest and at the same time prevent the domination of the broadcasting media by monopoly interests are enforced decisively. Indeed, the effectiveness of media and broadcasting regulation has already been a matter of concern under the current 2007 Thai Constitution. Initially, there were indications that constitutional norms under the latest Constitution were being rigidly applied. Most prominently, the Thai Constitutional Court ruled in September 2008 that Prime Minister Samak had violated the conflict of interest provisions30 by being paid for his appearance on a cookery show and that in consequence he must step down from the premiership.31 Persistent protest by Yellow Shirt supporters culminating in the occupation of Bangkoks international airport prompted a change of administration. The threat to freedom of expression remains acute since it appears that executive powers have been used by the Democrat government, which took office in December 2008, to silence the main opposition. In response to demonstrations by Red Shirt protestors, an Emergency Decree was used in April 2009 by the Abhisit government to shut down the D-Station television channel32 and at least three local radio stations in the north and northeast of the country. This action was taken on the grounds that they had been used as a mouthpiece for the Red Shirt movement loyal to former Prime Minister Thaksin and to stir up unrest.33

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See S Nitsmer, Public Service Broadcasting in Thailand 18th JAMCO Online International Symposium, 16 January28 February 2009, www.jamco.or.jp/2009_symposium/en/003/index.html; SEAPA Report: Can New Thai PM Achieve Genuine Media Reform? Southeast Asian Press Alliance, 22 January 2009. TC 2007, Art 267. Constitutional Court Case 12-13/2551, and see A Harding and P Leyland, The Constitutional Court of Thailand and Indonesia: Two Case Studies from South East Asia (1998) 3(2) Journal of Comparative Law 118, 133; PM Disqualified for Violating Charter with Cookery Show The Nation, 10 September 2008. Emergency Situation Decree of 11/04/52 (11/04/09). Sinfah Tunsarawuth, Thailand: Government Moves to Suppress Media Human Rights House, 24 April 2009, http://humanrightshouse.org/noop/page.php?p=Articles/10677&d=1 (last visited 14 August 2009); New TV Station May Replace D Station The Nation, 1 May 2009.

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FREEDOM OF SPEECH AND CONSTITUTIONAL MONARCHY Up to this point the discussion of freedom of speech in Thailand has centred on evaluating the constitutional and legal provisions designed to safeguard these freedoms on a general level, with particular attention directed to the regulation of broadcasting and the press. By way of contrast, the second half of this article provides an in-depth critique of the lse-majest law, which was conceived to protect the revered institution of the monarchy but which has increasingly been deployed by factions claiming loyalty to the King to prevent more general criticism of the authorities. A number of commentators have claimed that a revived cult of the monarchy has been used in recent times as a repressive force in Thai society.34 In essence, it will be argued that the law as applied in its current form, which has included measures intended to close down internet sites and control use of the web, fundamentally undermines freedom of expression. Before considering this proposition in more depth, it is instructive to have some awareness of the historical antecedents to the current law. Rama I, who established the Chakri dynasty in the wake of the sacking of Ayutthaya by the Burmese, was responsible for producing a definitive text of all the laws, the Three Seals Code.35 With the atrocities of the Burmese still fresh in the memory and the new dynasty based in Bangkok only recently formed, laws were needed to reinforce an absolute monarchy which was responsible for protecting the nation from invasion and from other internal and external threats. The highly detailed Capital Crimes section of the Three Seals Code sets out many crimes relating to the King and the royal entourage, including daring to speak impudently of the King, disparaging royal acts, edicts or commands, and a catalogue of other offences.36 At the same time, this law prescribed many punishments, some of which were fearsomely harsh, including beheading, the severing of hands and feet, and whipping. There was also the relatively lenient option of imposing fines.37 This law might be regarded as the precursor of lsemajest.38 Over the course of the nineteenth century, Siam (Thailand) was faced with challenges from Britain and France as expanding imperial nations, and in order to avoid foreign intervention on the pretext of eliminating archaic cultural practices King Rama V (Chulalongkorn) saw the modernisation of the Thai state and its laws as an imperative.

See eg M Connors, Democracy and National Identity in Thailand (NIAS Press, 2007) 93ff. D Wyatt, Thailand: A Short History (Yale University Press, 2nd edn 2003) 130. 36 Peasants obstructing a vehicle delivering a petition to the King were sentenced to 43 days in prison. See P Handley, The King Never Smiles (Yale University Press, 2006) 134. 37 See Provisions 7, 12 and 43 of the Three Seals Code. 38 The modern lse-majest laws can be traced back to the Code Michaud 1629 introduced in France under Cardinal Richelieu to proscribe defamatory libels directed at the monarch. Despite many differences, Streckfuss notes that this law has been used in both nations by elites to protect their interests. See D Streckfuss, Kings in the Age of Nations: The Paradox of Lse-majest as Political Crime in Thailand (1995) 37(3) Comparative Studies in Society and History 445, 4478.
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Legal innovation became the order of the day. For example, the Royal Edict of Defamation was introduced in 189939 and the original lse-majest law formed part of a revised modern penal code in 1908.40 However, following the death of Rama V there was a remarkable decline in royal authority, undermining the traditional conception of absolute monarchy as the dominant force in the official hierarchy.41 This decline culminated in the abdication of Rama VII in 1935. Under the present King, although there is now a constitutional monarchy the institution has been revived and, as the monarchy has become more influential, there have been phases when lse-majest has been employed with increased vigour, usually to strengthen the political authority of the government.42 At the same time, the ideology of Buddhism has played a significant part in consolidating the role of the monarch. As Professor Harding points out: successive regimes since the establishment of the Chakri dynasty in 1782 [have] found it of great importance to ensure that its political programme was supported by the sangha,43 even to the extent that it has if necessary reorganised the sangha and suppressed dissent from official interpretations of religion to bring about this result, making quite overt use of legal and administrative controls.44 The fact is that in Thai politics Buddhism is an important institution for creating social order and a medium through which that order can be controlled.45 While in a positive sense Buddhism is a socially integrating and stabilizing force,46 at the same time the concept of Conventional truth (sammatutisca) requires an approach to living in society that involves accepting things the way they are in order to create goodness for oneself and others.47 This approach might be viewed as rather counter-revolutionary in outlook since a great deal depends upon Karma, which
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Provision 4: Whosoever defames the reigning King of Siam or the major concubine, or the princes or princesses, through something said with the mouth, or written in letters, or done in any fashion in a meeting of people at large, with intemperate words which may clearly be seen as truly defamatory, this person has acted illegally. Section 98: Whosoever displays malice towards or defames the King, the Queen Consort, the Heir-apparent, or Regent when he is carrying out his duties to the King, shall be liable to imprisonment not exceeding seven years or a fine of not more than five thousand baht, or both. J Girling, Thailand: Society and Politics (Cornell University Press, 1981) 55. K Suwannathat-Pian, Kings, Country and Constitutions: Thailands Political Development 19322000 (Routledge, 2003) 198. This term refers to the Thai monkhood. Harding (n 12) 3. P Jirakraisiri, Political Beliefs of the Thai Sangha (2004) 3(1) Chulalongkorn Journal of Buddhist Studies 219, 220. Girling (n 41) 35. At 37 Girling states: Throughout Thai history there has been [a] continuing dialectic between bureaucratized formal hierarchy and personalized, informal clientship. This dialectic reflects both the contrasts and the interaction in Thai society between the individuality that is customarily permitted and the severe limitations on individualism imposed by status differences obedience towards those in authority, and dependence on power. K Promoj, Buddhism and the World in Buddhism (Syamrath Press, 1977) 11112.

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suggests that an individuals place in the social hierarchy is determined by their own past actions and present conduct.48 Although there are strands of Buddhist teaching founded upon democratic principles that allow for social mobility, for most Thais it is essential that unquestioning obedience and appropriate deference is shown to those who are socially superior. Of course, the King is placed in an exalted position at the pinnacle of the entire social order.

THE LSE-MAJEST LAW Any person familiar with Thailand soon comes to recognise that the monarchy is not only a revered institution but also an area of extreme sensitivity. This is not a subject that can be treated with levity or with any suggestion of disrespect. The lse-majest law is designed to suppress characterisations of the monarchy that have come to threaten the primacy of the official narrative of the Thai nation. The monarch is the main character in history and at present is the being who, by his meritorious acts, unites the people, the nation, and the state ideology.49 It has been noted that in earlier phases of Thai history any act against the King was a regarded as a form of rebellion.50 Now for the defenders of the official state narrative, lse-majest is tantamount to a kind of cultural treason, a national spiritual betrayal of Thai-ness (Khaam pen thai). It is a particularly damaging charge to bring against someone, for it is the only crime, other than treason (which has hardly been used), that impugns patriotism.51 This proximity to the crime of treason is because the King and the state come to be perfectly identified with each other; all offences against the state are capable of being offences against the King, and vice versa. The present Kings persona has been progressively constructed by a sustained campaign of imagemaking. A visitor to Thailand is immediately aware that the kings presence is literally everywhere-laid out, [it is] in virtually every popular magazine, hung in every home, touted nightly on television, sung to simultaneously daily by the nation. The kings image is ubiquitous, [and] the state has taken to itself the responsibility of protecting the kings honour.52

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Status can be changed by performing meritorious acts. A preoccupation with rank and status is reflected in ancient legal texts (eg the Law of Civil Hierarchy and the Palatine Law) which form the basis of the Three Seals Code drawn up by Rama I in 1805. See M Vickery, The Constitution of Ayutthaya: An Investigation into the Three Seals Code in A Huxley (ed), Thai Law: Buddhist Law (Orchid Press, 1996) 156ff. Streckfuss (n 38) 471. Handley (n 36) 134. Streckfuss (n 38) 463. Ibid, 448.

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It has been suggested that what might be defended as an understandable desire to safeguard the reputation of a much respected institution in Thailand has been turned into a political weapon employed by factional interests. One influential view maintains that despite a gloss of constitutionalism, there was never any intention on the part of the conservative elite surrounding the King to introduce Western style democracy.53 The point being that the Thai version of democracy was a defective model, a distortion of its Western counterpart. It emphasised only the process of democracy without paying much attention to another equally important side of the system, namely the principle of objective democracy: the guarantee of life, liberty and the pursuit of happiness of individuals within the common good.54 The upshot is that in Thailand there is an all encompassing law on lse-majest crimes to ensure not only that proper respect and decorum be strictly observed but also that the not-so-refined aspects of royalty be kept out of public knowledge. Woe betide those who are unfortunate enough to transgress this unusually high standard towards the royalty.55 In recent times, there has been an increase in the level of punishment for the crime of lse-majest, turning it into an even more serious offence. Instead of carrying a maximum of seven years imprisonment or a 5,000bt fine, the maximum prison sentence has been raised to 15 years.56 This law is used to place a protective cocoon around the entire institution. Embedded within national security statutes, the lse-majest law is applied to protect not only the person of king and his immediate family but the institution of monarchy itself, both current and historical. Maligning even a previous king can bring charges, conviction for which could bring over ten years imprisonment. The result is that no one dares question the story of King Bhumibol, or his family, or the semi-deified kings of the entire dynasty.57 There is also evidence indicating that the initiative for the re-drafting and stricter enforcement of this law did not originate with the King.58 In fact, there appears to be a gulf between the King and those who claim support for and loyalty to the monarchy. The King and royal family do not personally file charges under this law. Further, in his 2005 birthday speech the King distanced himself from any aura of infallibility. He acknowledged that he himself should be criticised, and in making this speech he appeared to invite criticism. A number of commentators have pointed out that the law is employed

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F Ferrara, Thailand Unhinged: Unraveling the Myth of a Thai-Style Democracy (Equinox, 2010) 71ff. Suwannathat-Pian (n 42) 4. Ibid, 145. Raatchakitijaanubeksaa (Royal Gazette) Special Issue, Vol 93, Part 134 (21 October 1976) 46. See D Streckfuss, The Poetics of Subversion: Civil Liberty and Lse-majest in the Modern Thai State, PhD dissertation, University of Wisconsin, 1998, 169ff. Handley (n 36) 7. General Sarat used this law to strengthen his own position around 1960.

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by powerful groups with their own agenda who consider themselves close to the King to prevent debate and to silence criticism.59 We will see that this law has been used to subvert the political process, undermining the precepts of a supposedly democratic constitution.60 As mentioned at the outset, the problem from the perspective of constitutional law is that the application of the lse-majest law conflicts with other constitutional values and with Thailands international treaty obligations. While there may be no doubt that the King is afforded enormous respect, the fact is that his role is now that of a constitutional monarch in a modern constitution which recognises free speech as part of a democratic political system. In Walter Bagehots parlance, the King as a pivotal symbolic icon is the head of the dignified part of the Constitution.61 In other words, now that executive power is in the hands of the Prime Minister and an elected government, the role of the King has been redefined. Nevertheless, he still has to intervene at vital moments, for example those relating to the formation of governments or the dissolution of parliament.62 Given the necessity of performing such functions, it is crucial that he should not belong to, or be perceived as having any direct association with, any political party or faction, and that he should be widely regarded as politically neutral.63 The invocation of the lse-majest law by parties or factions within Parliament to cast aspersions on their political opponents also has the effect of fatally undermining the Kings constitutional position.64

THE NATURE OF THE OFFENCE Turning to examine the offence itself: Whoever defames, insults or threatens the King, Queen or the Heir-apparent, shall be punished with imprisonment of three to 15 years.65 The first thing to note about the definition is its brevity. There is no further explanation or qualification. The words insult and threaten might be construed as being relatively
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G Ungpakorn, Since the Military Coup, Democratic Rights have Come under Attack. Now the Fightback is Starting The Guardian, 18 February 2009. It was even proposed by a National Legislative Assembly member under the interim Constitution (20067) to bring any criticism of royal advisers under the umbrella of lse-majest. See NLA Drops Planned New Lse-majest Laws The Nation, 10 October 2007. W Bagehot, The English Constitution (Fontana, 1963) 66. For Bagehot the dignified parts were very complicated and somewhat imposing, very old and rather venerable. See Constitution of the Kingdom of Thailand 2007, Arts 171 and 108. The King has also frequently intervened at times of national crisis. S Bungkongkarn, Politicial Institutions in Thailand in S Xuto (ed), Government and Politics in Thailand (Oxford University Press, 1987) 59. There have been attempts to defend the current law in a Thai context; see eg B Uwanno, Lse-majest: A Distinctive Character of Thai Democracy amidst the Global Democratic Movement KPI, Bangkok, April 2009, www.kpi.ac.th/kpien/index.php (accessed 27 May 2010). Thai Criminal Code, Art 112.

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unambiguous, in the sense that an utterance, or indeed any conduct, which is a direct or indirect attack on the monarch will be taken as falling within the definition of the offence. However, the word defame introduces a very wide category.66 The Thai definition of defame states: Whoever imputes any thing to the other person before a third person in the manner likely to impair reputation of the such other person or to expose such other person to hatred or contempt is said to commit defamation 67 This form of words is close to the classic common law conception, which concerns the publication of a statement tending to lower a persons reputation by exposing them to hate, contempt or ridicule or which would tend to lower a persons reputation in the eyes of right thinking members of society.68 The submission of evidence that the plaintiffs reputation has been tarnished is usually the basis for winning the case. In Thailand this criminal offence (not tort) is committed if anyone could hypothetically construe the alleged statement or conduct as being detrimental to the reputation of the monarchy. In a nation which treats its royal family with such great reverence it is not possible for the prosecution to establish the offence by reference to the actual impact of the alleged conduct. In any charge of lsemajest the prosecution is faced with the utter impossibility of producing witnesses to substantiate the fact that the words would cause people to look down on the monarchy.69 This is because any witness who made an admission supporting the prosecution case would themselves be committing the offence of lse-majest. It would be incriminating for them to state in court that their personal view of the monarchy had been lowered as a result of the alleged statement. An earlier interpretation regarded as defamatory anything that has insulted the king, government, or system of governance or anything that would cause the people to be without faithfulness or loyalty to the king. But, as we shall see with recent cases, this has now shifted from the corporality of the King to any threat to the contemporary state, whether posed by government critics, demonstrators, republicans or even fiction writers.70 Further, justification or truth provides no defence to this crime. In the case of Kosai Mungjaroen in July 1957 the court refused to accept that the defendant was fairly reporting the news. It considered that if the words of the defendant had been heard by an audience the Kings reputation would be damaged. That was enough to secure a conviction.71
66

67 68 69 70 71

The problem with broad and undefined defamation laws, of course, is that notwithstanding the examples made of writers like Nicolaides, nobody actually knows what to avoid in the future. R Alampay, The Guardian, 22 January 2009. s 326 Thai Penal Code. It remains highly controversial that defamation is punishable with imprisonment as well as a fine. S Deakin, A Johnston and B Markesinis, Tort Law (Oxford University Press, 5th edn 2003) 645. Streckfuss (n 38) 458. Ibid, 469. Ibid, 454.

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LSE-MAJEST AND POLITICAL DISSENT It is apparent that the deployment of this law has been subject to deliberate manipulation: Within the last three decades charges of lse-majest have been laid indiscriminately against those who were seen as threats to the Throne, the ruling clique, politicians, or simply those who are not informed of the sacredness and inviolability of the Thai monarchy.72 In one area in particular the military has deliberately turned to this offence as a means of consolidating its authority directly or indirectly. In October 1958, following his second coup, Field Marshall Sarit Thanarat oversaw the drafting of an interim Constitution of 28 January 1959 which not only removed all vestiges of democracy, but also redefined the position of the King in the Constitution, as it has been subsequently, as sacred and inviolable. Indeed, Article 8 of the present 2007 Constitution provides that The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action and that no person may proffer charges or bring an action against the King.73 Subsequently, the promotion of the monarchy was undertaken as a key element in a pro-American and, at the same time, anti-communist official policy bolstered by the US information service, which provided funding for a massive public relations exercise. This included the circulation of images of the King to every Thai home.74 The case of Wira Musikaphong in 1988 graphically illustrates the way in which lsemajest has been used by politicians to muzzle political opponents.75 The essence of the alleged offence was that Wira, a member of a party opposed to the military in an election campaign, had compared himself to a Prince in criticising a political opponent. Part of a political speech included the following remark: If I were a prince now, I would not be standing here, speaking, making my throat hoarse and dry I would be drinking some intoxicating liquors to make myself comfortable and happy.76 It was alleged that this reference (a subversive metaphor) suggested that the King did not suffer the privations of the poor and that royals were lazy. He protested innocence and affirmed his loyalty to the King. A month later, Phijit, a senator, raised the matter of the insulting speech in the Senate. An explanation and pledge of loyalty to the King agreed with Phijit appeared to have settled the issue. However, once the matter had been brought to the attention of the wider public, a senior general was able to stir up popular feeling against Wira. In turn, this public focus exerted pressure on the police to prosecute. A number of senior military figures appeared for the prosecution against Wira. They maintained that any loss of loyalty

Suwannathat-Pian (n 42) 1989. TC 2007, Art 8. 74 Handley (n 36)149. 75 Streckfuss (n 38) 449. 76 Ibid.
72 73

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to the King would present an opening to the communists, who were seeking to infiltrate and destroy the Thai system of governance and remove the King as head of state.77 After much semantic argument between prosecution and defence as to what the phrases meant, and whether he was in fact referring to the King, Wira was acquitted by the provincial court, but found guilty on appeal and sentenced to six years imprisonment. The truth or accuracy of the words had become irrelevant to the case. The defendants intent was determined by constructing a hypothetical effect totally out of context. Such an interpretation of the law allows a court to reach a conclusion which disregards other relevant evidence relating to the accused. In the application of this law a court is therefore likely to contravene the constitutional guarantee of the presumption of innocence.78 This ill-defined law applied in the absence of any judicial reasoning has assumed a bizarre logic of its own.79 A decision to publish criticism of the King in a newspaper in 1973 was successfully defended. The offending text originated from the Thai National Salvation Movement and appeared in the newspaper Sayaam Rat. Kukrit Pramoj, the proprietor, who was also a former Prime Minister, successfully argued that his newspaper Sayaam Rat was obliged to defend the monarchy when it faced attack by publishing and then responding to such criticism. It was further argued that failing to act in such circumstances could have been interpreted as a commission of the offence of lse-majest. The irony was that subversive sentiments were indirectly disseminated by the action of one of the monarchys stoutest defenders.80 Indeed, the absurdity of this law is amplified by the fact that any lse-majest charge brings the allegedly damaging content to a wider audience. Any court which tries a person and in doing so repeats the offending words commits lse-majest, as does the Royal Gazette, which publishes reports of cases, the assumption being that, following in the footsteps of the European Counter Reformation, trial, condemnation, confession and punishment will somehow expurgate the effect of the statement.81 Of course, the condemnatory impact of prosecution, trial and sentence would be lost if the trial proceedings were held entirely in camera.82 Furthermore, the law carries with it an imperative for the police to prosecute and for judges to convict. Failure to do so might lead to allegations of lse-majest against individual officers or judges on grounds of disloyalty to the monarchy.83
77 78 79 80 81 82

83

Streckfuss (n 56) 195. TC 2007, Art 39. Streckfuss (n 38) 449. Ibid, 460. V Green, Renaissance and Reform (Arnold, 1964) 190ff. It has been pointed out that cases involve confession, recantation, and reverence to the King, so that the defendants individual acts of public redemption provide a collective reaffirmation of Thai-ness amounting to a ritualisation of loyalty (Streckfuss (n 38) 465). Police officers investigating allegations of lse-majest have faced charges in respect of internal memos referring to a translation of an allegedly damaging article published in the British Daily Express. See Streckfuss (n 38) 461ff.

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CONFLICTS WITH HUMAN RIGHTS PRINCIPLES From the standpoint of the basic human rights of the defendant, this offence displays alarming features. First, it can be committed entirely without criminal intent. There is no need for the prosecuting authorities to bring any evidence to bear relating to foresight on the part of the defendant with regard to the effect of the statement or conduct. This failure to introduce a subjective element removes the vital link for establishing serious criminality resulting in deprivation of liberty. The Thai law of defamation is a criminal offence of strict liability, but it is based on the tort defined under English common law.84 However, under common law there is a general assumption [in criminal cases] that sane adults may be held liable for their conduct and for matters within their control.85 It is equally important that an individual should not be held liable for his or her actions unless (s)he has the capacity and a fair opportunity to do otherwise.86 Faced with a serious criminal charge, a person should be judged on the facts as she believed them to be. In lse-majest cases the alleged perpetrator can be brought before a court because someone else understood the remarks as being damaging to the King. This will be the case even if: (i) this was not the intention of the defendant; (ii) the defendant was not even aware of the implications of the remarks; (iii) the monarchy was not actually expressly mentioned in the offending statement. The offence has been committed because the complainant reports the matter or because the statement or other conduct is reported to the authorities, who then decide to act upon their perception of the alleged remarks. The fact that there is a statement which is brought to their notice may be sufficient to secure a conviction regardless of its effect.87 Furthermore, unlike the Thai defamation law, lsemajest does not recognise the defence of good faith by way of fair comment.88

84

85

86 87

88

A defamatory statement is one which injures the reputation of another by exposing him to hatred, contempt or ridicule, or which tends to lower him in the esteem of right thinking members of society. Deakin et al (n 68) 645. A Ashworth, Principles of Criminal Law (Oxford University Press, 6th edn 2009) 2425. See eg Lord Reids famous statement of this principle in Sweet v Parsley [1969] 1 All ER 347 that, to avoid the public scandal of convicting on a serious charge persons who are in no way blameworthy, it is firmly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that it is not necessary. Ibid. In the Wira trial (discussed above), after giving their testimony which supported the prosecution case, witnesses cross-examined by defence advocates agreed that their devotion to the King had not been in any way affected. If this is true after hearing or reading the statement and all accusers remain loyal to their king, there appears to be no logical reason for convicting except to gratuitously punish the accused. See Deakin et al (n 68) 671: This defence stems from the belief that honest and fair criticism is indispensable in every freedom-loving society. The law weighs the interest of the claimant against the freedom of speech and, on the whole, comes down in favour of the latter.

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Secondly, the insidiousness of the process is compounded by the lack of any prospect of independent justice in Thailand in relation to this offence. The police, prosecuting authorities and judges not only act in the name of the King, but there is an expectation that their loyalty to the Crown will be reflected in an outcome that confirms the dignity of the King at the expense of the accused. Indeed, any prosecutor who fails to pursue a case vigorously might themselves be made the subject of a lse-majest charge. Thirdly, an equally disturbing feature of this crime is the disproportionality of the punishment, as in the Da Torpedo case discussed below. If the allegations are sustained and a guilty verdict returned, the perpetrator will face a term of imprisonment normally of no less than three years and often a great deal longer. Defendants nearly always apologise profusely and show remorse, but this has relatively little mitigating effect. Finally, there must be clear limits on the capacity of the prosecution to appeal when a defendant is acquitted. For example, in a case similar to Wiras discussed above, where the accused is found not guilty, a rule should be introduced to prevent an appeal by the authorities so that there is a subsequent conviction of the accused on the same evidence. These are grave defects in the law, any one of which constitutes a serious affront to human rights in a democratic constitution. The situation could easily be rectified. It would be quite possible to grant adequate protection to the monarchy with a revised law that requires proof of intention or recklessness. At the same time, proportionate punishment could be introduced by setting different levels of seriousness for the offence, with punishment caps for each level. Finally, clear rules could be drafted for prosecutors in order to prevent the authorities from taking their cue in deciding who to prosecute from politicians, the military or other vested interests.89 It was noted at the outset that Thailand has international human rights obligations as a signatory to the Universal Declaration of Human Rights, and as a party to the International Covenant on Civil and Political Rights since 1997.90 The current application of the lse-majest law arguably breaches this covenant in a number of respects, as demonstrated by this analysis of the current law and by the cases discussed in the next section.91

There has been a limited official response to criticism of the abuse of lse-majest. In late 2009 an Order from the Office of the Prime Minister instructed that a committee be formed, to include officials from the Ministry of Justice, the Attorney-General and the Commissioner General of the Police, to advise the public prosecutor on how discretion should be exercised to protect the rights of suspects in lse-majest and national security cases. 90 Thailand is also a party to the International Covenant on Economic and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. 91 For example, Art 9(3) routine detention in custody of lse-majest suspects; Art 14(1), 14(3)(e) the difficulty of securing a fair public hearing when charged with this offence and in examining witnesses; Art 19 the right to hold opinions without interference subject to respecting the reputation of others.
89

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STRICTER ENFORCEMENT OF LSE-MAJEST UNDER THE YELLOW SHIRTS Following the change of government in December 2008 there have been strong indications that efforts will be made to enforce the lse-majest law more vigorously. There appears to be an assumption on the part of influential figures who claim loyalty to the monarchy that aggressive enforcement will protect the Thai state from subversion. Academic critics have suggested that this is simply a matter of the preservation of a narrow political interest.92 In any event the answer for this faction, it seems, is to mount an offensive on multiple fronts. Thai citizens who voice dissent are the most obvious targets. The list is headed by the now fugitive Thaksin Shinawatra, the former Thai Prime Minister. Thaksin was found guilty in absentia in the Ratchadaphisek Land case and was sentenced to two years imprisonment, but also faces the prospect of trial on several other charges relating to his premiership. His reputation has certainly been tarnished by corruption, but he is still a populist leader with a strong following. In this capacity he remains firmly in the sights of the PAD, his main political opponents, and should he return he is likely to be investigated for possible breaches of the lse-majest law. Giles Ungpakorn, an academic from Chulalongkorn University, stepped into the firing line for seeking reform of this law and for the publication of a book which was critical of the 2006 military coup. Although foreigners have fallen foul of lse-majest in the past, the treatment of the amateur Australian novelist Harry Nicolaides was perceived as being sufficiently harsh to make the headlines in newspapers around the world. Nicolaides had published an obscure novel about Thailand which referred to a royal Prince. Fifty copies were printed and a total of seven were sold. After his arrest, despite expressing remorse, he was charged, denied bail pending trial and sentenced to a term of three years imprisonment. He had been incarcerated for several months before being released following a royal pardon. The highly controversial three-year sentence was announced just when Thailand was beginning to recover from the adverse publicity caused by Yellow Shirt demonstrations which had forced the prolonged closure of Bangkoks international airports in November 2008. The BBC correspondent in Thailand, Jonathan Head, was placed under investigation for lse-majest after speculating about the relationship between palace and protest groups in relation to these controversial demonstrations at Bangkoks airports.93 In a much-publicised recent case, Ms Daranee Charnchoengsilpakul (aka Da Torpedo) was convicted in August 2009 on three charges of insulting the King and Queen. She was sentenced to six years imprisonment on each count consecutively, totalling 18

92 93

Ungpakorn (n 59). BBC Reporter Jonathan Head Faces 15 Years in Thai Jail Huffington Post, 26 December 2008.

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years.94 Her most inflammatory speech was a wide-ranging attack on the 2006 military coup makers and their conservative allies in which she repeated the widely reported but controversial view that the King was behind the military coup in September 2006 and the other military coups during his reign. The court held that this United Front for Democracy against Dictatorship member and supporter of Thaksin had made several remarks deemed to be lse-majest in speeches on the stage at UDD rallies at Sanam Luang on 18 January, 7 June and 13 June 2008. As a Thai citizen, Daranee would have been well aware that the combination of strong innuendo and very intemperate language directed at the monarchy and its supporters was liable to land her in trouble. Nevertheless, her treatment under the legal system might still be called into question. Not only was an otherwise law-abiding citizen denied bail for over a year; while in prison awaiting trial on these charges she appears to have been the victim of abuse.95 Moreover, the trial was held in camera with reporting restrictions imposed,96 and the consecutive sentence handed out might be regarded as grossly disproportionate punishment. Indeed, the reactions of the international media commenting on the King and the application of this arcane law have also become targets for the Thai authorities. After publishing an article which discussed the current role of the Thai monarchy and the governing faction, the Economist magazine was banned temporarily in Thailand.97 As we shall see below, at the same time, the Thai Ministry of Information Communications Technology has devoted considerable energy and resources to shutting down websites declared to be anti-monarchist. The Senate, which now has a considerable PAD faction, recently set up a committee composed of 30 members to strictly enforce the law to protect the royal family. This committee will by chaired by the head of the national police force and it will consist of 19 senators and 11 other officials.98 As the writer in the banned edition of the Economist notes, this strategy is most unlikely to work: A whirl of lsemajest accusations have been made against pro- and anti-Thaksin figures. But the PADs even more menacing behaviour, the palaces failure to disown it, and the groups insistence that Thais must choose between loyalty to Mr Thaksin and to the king, may be doing untold damage to the Crown itself.99

94 95 96 97 98 99

Case Black at (letter O), 2812/2009; Da Torpedos Downfall a Warning to the Like Minded The Nation, 1 September 2009. UDD Abandons Da Torpedo Bangkok Post, 24 February 2009. Amnesty International, Thailand: Closed Trial Threatens Justice, 25 June 2009, www.amnesty.org/en/formedia/press-releases/thailand-closed-trial-threatens-justice-20090625 (accessed 23 May 2010). Presumably this made it an offence to sell the magazine in Thailand, but what if this magazine with an international circulation was brought into the country by an unsuspecting visitor? The Senate Forms Panel to Monitor Enforcement of Lse-majest Prachatai, South East Press Alliance, 27 January 2009. See n 97.

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INTERNET CENSORSHIP AND THE LSE-MAJEST LAW In the contemporary world the internet is a form of mass communication relied upon by increasing numbers of citizens, and it is a technology which is extremely difficult to control. In addition to official websites maintained by national governments and other public bodies, information is posted on innumerable websites around the world on every conceivable subject, including the Thai monarchy. Further, an increasing amount of published material in books, academic articles, journals and newspapers is available electronically through library services to which students or researchers are given access as subscribers. Broadcasters, newspapers and individuals use websites as a means of commenting on events as they unfold. Members of the public are able to contribute their own views to blogs on an ongoing basis. Visitors to such sites can read through these contributions before adding their own comments. Search engines such as Google direct web surfers to sites which match the search criteria that they have entered. This form of mass communication has unique features. It enables individuals to be in close communication wherever they happen to be in the world. It is an instantaneous form of communication, in the sense that whatever is posted on a website is available immediately. Material on websites can be updated with great ease, and such material comes in many forms, including articles, pictures, sound recordings, webcasts, films and television programmes. Information can be communicated to a large number of people extremely quickly, and this can be done across national boundaries. The internet has enormous potential for abuse. Let us take two obvious examples in respect of the practices of private users: private websites have been employed by child pornographers to promote exploitative practices that are abhorrent to the vast majority of citizens;100 and, in a different context, fraudsters use websites to lure unsuspecting surfers in order to fleece them of their money. Governments have a legitimate interest in establishing some control to prevent such abuses. The danger is that the cure becomes worse than the disease and that these malpractices are cited as an excuse for introducing extensive political censorship. It was claimed by the authorities that Thailands Computer Crime Act,101 enacted under the military junta in 2007, was drafted to combat online pornography102 and prevent other online offences such as using the internet to promote terrorism. However, it is a very wide-ranging law directed at the estimated 12 million regular internet users in Thailand. For example, the Act covers import to a computer system of computer data related to an offence against the Kingdoms security under the

Fighting Crime with the Click of a Mouse Bangkok Post, 7 July 2008. Computer Crime Act BE 2550 (2007), Vol 124, Section 27 Kor, Government Gazette, 18 June 2007. 102 Section 14(4) up to five years imprisonment for import to a computer system of any computer data of a pornographic nature that is publicly accessible.
100 101

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Criminal Code.103 This form of words is open to wide interpretation, which has included any implied criticism of the King falling under the lse-majest law. In addition, the Act outlaws the transmission, interception and accessing of any computer data which is defined as illegal.104 Any person using a computer with illegal material on it is potentially liable under the Act. The legislation grants officials in the Ministry of Information Communications Technology the right to apply for court orders to seize equipment and to block sites. Publishing companies have been shut down for hosting a server.105 In order to make it easier for the authorities to trace abuse, the Act also requires internet service providers (ISPs) to keep log files of bandwidth consumption and internet traffic and records of individual users for 90 days. Even users of internet cafes are required to register so that they can be traced. The application of the Computer Crime Act, which grants these far reaching powers to the authorities, must be viewed in the light of Article 36 of the 2007 Constitution, which guarantees Thai citizens liberty of communication by lawful means. The Thai authorities have directed considerable resources into policing this law by seizing equipment, shutting down websites and prosecuting alleged perpetrators of this new form of internet crime. However, there is increasing evidence that this law is being employed as a political weapon.106 In January 2009 the Ministry of Information Communications Technology claimed that it had blocked or shut down 10,000 websites which allegedly contained material defaming the monarchy.107 A report published by Human Rights Watch states: The government also has used both the lse-majest statute in the Criminal Code and the new Computer Crimes Act to suppress critics of the monarchy and persecute perceived government enemies.108 In other words, lse-majest, which has been shown in this article to be a thoroughly discredited law, is being used under this legislation as a pretext to intimidate any parties, groups or persons109 opposed to the government and thereby to stifle political debate.

103 104 105 106

107 108 109

See s 14(3). The offence carries a maximum sentence of five years imprisonment. See ss 513. These sections also make hacking or damaging computer data, especially where national security is involved, very serious offences with maximum sentences of 20 years. The Police Get Tough Net Laws The Nation, 18 July 2007. Among the many recent cases individuals have been charged for translating media reports about the health of the King. Further, in January 2009 Suwicha Thakor was sentenced to 10 years imprisonment for posting material on the internet which was judged to be contrary to the lse-majest law. P Rojanaphruk, Is Internet Censorship Getting Out of Hand and Hurting Users Freedom? The Nation, 23 January 2009. Human Rights Watch, Thailand: Serious Backsliding on Human Rights, 20 January 2010, www.hrw.org/en/ news/2010/01/20/thailand-serious-backsliding-human-rights. For example, websites associated with former Prime Minister Thaksin Shinawatra, Corruption Watch and Giles Ungpakorn are among those that have been blocked.

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CONCLUSION In the first part of this article we observed how conflicts of interest relating to media ownership and control had an adverse impact in Thailand under the premiership of Thaksin Shinawatra. The ability of a single individual in political power to control broadcasting severely limited the capacity of the opposition to engage in the political process. The response, found in the 2007 Constitution, has been to strengthen provisions restricting conflict of interest and to require the introduction of a regime of statutory regulation. While this regime cannot be evaluated as it is not yet fully operative, the resignation of Prime Minister Samak in 2008 provided early evidence of the strict enforcement of the conflict of interest provisions under the Constitution, but at the same time there is evidence that emergency powers have been invoked by the present government to restrict the capacity of the opposition to present their case. In the next section it was argued that the lse-majest law has been applied recently by certain sections of the Thai elite to re-establish their grip on political power. Such action would appear to have been based on the almost certainly mistaken assumption that opposition would be silenced by the threat of prosecution under this archaic and unjust law. Obviously, such conduct by the Thai authorities in the name of the King is strongly at variance with a commitment to a democratic constitution guaranteeing the protection of individual human rights in Thailand, as well as a breach of the countrys international treaty obligations. This law must be abolished or radically reformed not simply because the right to free expression is integral to the recent 1997 and 2007 Constitutions, but because the law is placed beyond constitutional oversight.110 Even the Thai National Human Rights Commission as an organ of the state cannot look into any alleged abuse of the lse-majest law without itself being accused of committing the offence. Further, as the reign of the present King reaches its late stages there is genuine interest in the monarchy and concern over the royal succession. Against this background, it is suggested that attempts by any Thai government, the police or the army to impose blanket restrictions on an area of genuine public interest will be increasingly futile in the contemporary world of instantaneous mass communications. At one level the internet is a sophisticated tool available to millions of Thai citizens. It invites public participation in debate and it is most unlikely that attempts to shut down websites will ever match the ingenuity of citizens wishing to set up them up. Moreover, increasing numbers of Thai citizens travel abroad and/or have contacts in other countries where open debate and free circulation of critical ideas is taken for granted.
110

One of the challenges facing the rule of law and human rights is to ensure that there are checks and balances against the abuse of power. See V Muntarbhorn, Rule of Law and Human Rights in Thailand in R Peerenboom (ed), Asian Discourses of Rule of Law (Routledge, 2004) 364.

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This difficulty in enforcing such laws was illustrated more than two decades earlier, when the British government banned a book entitled Spycatcher in the United Kingdom in order to prevent the circulation of material which was allegedly in breach of the Official Secrets Act.111 However, it was impossible to stop publication in Australia and the United States and thus to prevent the wider dissemination indirectly of the content deemed undesirable. Professor Gearty considers that It is unlikely that a cause clbre of Spycatcher proportions will ever occur in the future: the case stands on the cusp of the internet era and from the perspective of users of the World Wide Web, the litigious efforts of the authorities appear not merely to be ill-judged but to belong to a different era.112 The Thai authorities seem still to be locked in that era. Far from promoting greater respect for what has been regarded as a revered institution, the present strategy is in danger of calling into question the motives of those responsible for enforcing lse-majest and, at the same time, the credibility of the monarchy itself as part of a democratic constitution.

In the 1980s a former member of the British secret intelligent services who was no longer resident in the United Kingdom wrote an account of his experiences as an agent which referred to plots to undermine an earlier government. In making these highly controversial revelations he was in clear breach of the UKs Official Secrets Act. See P Wright, Spycatcher: The Candid Autobiography of a Senior Intelligence Officer (Viking Press, 1987). 112 Gearty (n 2) 128.
111