prejudicial tendon: Thailand's l?se majest? sentencing: intent on trial

Thailand?s draconian l?se majest? law continues to curb freedom of expression and has arguably reached a new level of arbitrariness with the most recent sentencing:

A Thai court has sentenced a leader of the Red Shirt political movement to two years in prison for a speech judged to have insulted the country?s monarchy.

The court ruled Thursday that 54-year-old Yoswarit Chuklom made a speech insulting the monarchy at a political rally in 2010. The Red Shirts took to the streets in 2010 in political protests that ended with deadly clashes with the military.

?Thai Red Shirt gets jail term for anti-king speech?, Associated Press, January 17, 2013

A Thai court today sentenced a government adviser, who helped lead protests in 2010 against former Prime Minister?Abhisit Vejjajiva, to two years in prison for insulting the royal family.

Yossawaris Chuklom, a comedian who goes by the name Jeng Dokjik, received the sentence for comments made in a speech to protesters that implied King Bhumibol Adulyadej influenced Abhisit?s decision not to dissolve the parliament, according to a court statement. The court said it freed him on bail while he appeals the sentence because he showed no intention to flee.

?Thai Comedian Gets Two-Year Prison Sentence for King Insult?, Bloomberg, January 17, 2013

While Yossawaris can not be considered as one of the highest-ranking red shirt leaders ? of which there were many during the 2010 protests ? his sentencing still needs special attention.

In sentencing a former protest leader to two years in prison, a court ruled that the defendant was liable not only for what he said, but also for what he left unsaid.

The criminal court?s ruling said the defendant, Yossawarit Chuklom, had not specifically mentioned the king when he gave a speech in 2010 to a large group of people protesting the military-backed government then in power.?But by making a gesture of being muzzled ? placing his hands over his mouth ? Mr. Yossawarit had insinuated that he was talking about the king, the court ruled.??Even though the defendant did not identify His Majesty the king directly,? the court ruled, Mr. Yossawarit?s speech ?cannot be interpreted any other way.?

The court ruled that it was obvious whom Mr. Yossawarit was talking about. During the trial, Thais with no apparent connection to the case were called to the stand and asked to whom they thought he was referring. All of the witnesses said, ?The king.?

?In Thailand, a Broader Definition of Insulting Royalty?, by Thomas Fuller, New York Times, January 17, 2013

This is indeed a new dimension of how arbitrarily l?se majest? is being applied here, on top of an already ambiguously written law (?insulting, defaming or threatening?): As many other l?se majest? (e.g. Ampon?s) or similar cases (e.g. Chiranuch?s) have shown, the principle is actually ?in dubio contra reo? (?when in doubt, decide against the accused?) for many different reasons.?Since the presumption of innocence doesn?t apply here, the prosecution is mostly not interested in the actual evidence (or the lack of in some cases), but rather in the ?intent? of the alleged crime.

David Streckfuss, a Khon Kaen-based academic and expert on the l?se majest? law, wrote in an academic article in 1995 ? long before the recent surge of cases ? about the rationale of these cases, since ?the truth or accuracy of the defendant?s words is irrelevant to the case. The defendant?s intent is determined by its hypothetical effect? (p. 452). Taking the case of then-Democrat Party secretary general (and later Thai Rak Thai executive and even later red shirt leader) Veera Musikapong?from the 1980s, Streckfuss has deduced ?five ?principles? that highlight the absurd mechanics of this draconian law ? here?s an excerpt:

The First Principle: Truth and Intent are Subordinated to Presumed Effect

Truth or guilt is determined purely by its effect. In a regular slander case, the central issue is substantiating the truth ? that is, a statement of truth that sullies someone?s reputation is not slander. If the defense can prove what the defendant said was true, the plaintiff?s case is lost, even if that truth has stained his or her character. In lese-majeste cases, however, it is not necessary to substantiate the truth, for the truth of what was said is not at issue. Ascertaining guilt remains at the level of its hypothetical impact, determined by the projected effect the words, if believed to be true, would have on listeners. [...]

The Second Principle: Actual Proof of Lese-Majeste?Requires Further Violation of Royal Dignity

?[G]uilt is determined by what the court estimates a safely abstract (and unascertainable) ?people? would feel were they to hear the words and believe them to be true. As a result, the prosecutors have the contradictory task of trying to argue how inflammatory the slanderous remarks are ? that they indeed constitute a threat to the security of the state and would cause people to look down on the king or the monarchy ? while at the same time maintaining that the words have no such effect on them personally. [...] If a witness for the prosecution, say, admitted that the intended effect of the words ? to cause the king to be looked upon negatively ? had succeeded in his or her own personal case, this would indeed be a confession, under oath, of l?se-majest?.?

?Kings in the Age of Nations ? The Paradox of L?se-Majest? as Political Crime in Thailand?, by David Streckfuss, in: Comparative Studies in Society and History, 1995, vol. 37 (3), pp 445-475 at p 453, 458

As of now, Yossawaris has appealed his sentencing. Meanwhile on Wednesday, the criminal court is expected to read their verdict against veteran labor activist Somyot Prueksakasemsuk, who is charged for editing articles in a news magazine that were deemed insulting to the monarchy.?L?se majest? continues to make headlines in 2013 and ?those defending it still find it hard to realize that with each case?

?The end result is that the dynamic?of this law do more damage to the monarchy than its critics could ever hope.?

?Kings in the Age of Nations ? The Paradox of L?se-Majest? as Political Crime in Thailand?, by David Streckfuss, in: Comparative Studies in Society and History, 1995, vol. 37 (3), pp 445-475 at p 473

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About the author:
Saksith Saiyasombut is a Thai blogger and freelance foreign correspondent based in Bangkok, Thailand. He writes about Thai politics and current affairs since 2010 and is also reports for international news media such as Channel NewsAsia. You can follow him on Twitter @Saksith.