11 October 2012
Source: Southeast Asian Press Alliance
(SEAPA/IFEX) – Bangkok, 11 October 2012 – The Thailand Constitutional Court yesterday ruled that the controversial Section 112 of the Penal Code, better known as the lèse majesté law, is not contradictory with human rights protections of the country’s constitution, including on freedom of expression.
The Court ruled on two petitions submitted to the Criminal Court from the arguments of Somyos Preuksakasemsuk and Ekachai Hongkangwan, who are both undergoing separate trials under Section 112. Ekachai is released on bail, but Somyos remains in detention despite 11 requests for release on bail.
The main argument of the unanimous ruling is that Article 112 gives a ‘real practical effect’ to Section 8 of the 2007 Constitution (B.E. 2549) that puts the monarch in a ‘position of revered worship’ and ‘shall not be violated’. Section 8 also prohibits any person from exposing the King to any form of accusation or action.
The court therefore upheld the validity of any charges and penalties arising from violation of Section 112 of the Penal Code, which prohibits anyone from defaming, insulting or threatening the King, heir-apparent, and the regent, and makes such offences punishable by imprisonment of three to 15 years.
The Court saw that the lèse majesté law provided ‘penalty for offenders is needed to maintain public order and good morals of the people in accordance with the rule of law’ in order to protect the King, as an institution and the head of the Thai state.
The Court emphasized that protecting the King related to the ‘security of the kingdom’ or ‘security of the state’, which it argued is a legitimate condition ‘restricting people’s liberty’ in Section 45 paragraph one of the Constitution.
The ruling said that the general application of the law regardless of circumstance or person, means that liberty to express opinion within the bounds of Section 112, does not make this law contrary to Section 45 on freedom of expression, and thus Section 29 on general human rights protection.
The affirmation of the lèse majesté law under this ruling means that there is no remaining recourse for Somyos and Ekachai but to be judged for culpability of their alleged offences.
Somyos has been detained on remand since 30 April 2011 for publishing two lèse majesté articles in the pro-Red shirt magazine Voice of Taksin. Ekachai was arrested 10 March 2011 for selling lèse majesté material, including copies of an Australian TV news documentary and transcripts of cables involving high officials released under through Wikileaks.
The Constitutional Court ruling goes against international criticism of the law, which is seen as restricting freedom of expression.
Frank La Rue, the UN Special Rapporteur on freedom of opinion and expression, particularly has said in 2011 that the law ‘does not meet these criteria’ of limitations from a national security perspective since the law is ‘vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security’.
SEAPA Executive Director Gayathry Venkiteswaran expressed disappointment at the Court ruling, given the already high number of persons currently in prison for lèse majesté. “The ruling does not consider the extent of the impact of the law on freedom of expression but only upholds national security,” she said.
She expressed concerns that the blanket validation of the lèse majesté law under national security concerns could worsen its enforcement, given criticisms that it has been used as a political tool in the past.
Gayathry said “Most importantly, the ruling could worsen the chilling effect of the lèse majesté law on the Thai media, which has refrained from tackling legitimate issues because these involved the monarchy.”
Click here to read an unofficial translation by Sinfah Tunsarawuth, an independent media lawyer, of the Constitutional Court Ruling on the constitutionality of Article 112 of the Thailand Penal Code.