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Thailand’s Lese-Majeste Cases Are a Travesty of Justice

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Thailand’s Lese-Majeste Cases Are a Travesty of Justice

Courts are trying political activists for insulting the country’s king, while sidestepping any discussion about what they actually said and whether it was true.

Thailand’s Lese-Majeste Cases Are a Travesty of Justice

Pro-democracy activist Panusaya Sithijirawattanakul leaves the Constitutional Court where her protest activities came under legal review in Bangkok, Thailand, Wednesday, Nov. 10, 2021.

Credit: AP Photo/Sakchai Lalit

In Thailand, young women have gone on hunger strike, children are being prosecuted, and a group of protesters is staring down 15 years behind bars – all because of an archaic law criminalizing criticism of the monarchy.

Among these protesters is 24-year-old Thai student Panusaya Sithijirawattankaul, who has already spent 59 days in prison. Her supposed crime? Denouncing King Vajiralongkorn of Thailand for, among other things, allegedly spending prolonged periods at various vacation spots in Germany and neglecting government business, all while Thailand battled the world’s worst health crisis in decades.

Panusaya is one of seven Thai protesters being prosecuted for violating Thailand’s draconian lese-majeste law, which criminalizes criticism of the monarchy, in the largest trial to date under the law. Fifteen others are being prosecuted in the same trial for sedition and public order offenses. The defendants span university students as young as 22 years old at the time of arrest, to lawyers, activists, and journalists. The protest at the center of the case took place on September 19, 2020, at the height of the COVID-19 pandemic, when demonstrators called for reform of the monarchy and the constitution. Those who gave speeches, such as Panusaya, decried the Thai king’s reported absences from Thailand as well as his apparent extravagances, which purportedly have included his renting out a Bavarian hotel during the pandemic, and his maintenance of a private jet priced at more than 330 million euros, a fleet of luxury cars, and at least 30 poodles.

Defendants charged and tried under Thailand’s lese-majeste laws suffer myriad injustices. The law states that “whoever defames, insults, or threatens the King, the Queen, the Heir-apparent, or the Regent shall be punished with imprisonment of three to fifteen years.” This overbroad wording criminalizes otherwise ordinary acts of free speech. Making matters worse, Thai courts have ruled that the prosecution does not even have to prove that the accused’s statements are false. This stems from the extreme sensitivity surrounding criticism of the King. Essentially, prosecutors want to prosecute, and courts want to convict defendants for insulting the King – all the while avoiding talking about what was actually said and whether it was true. As a result, even factual statements about the monarchy can be criminalized.

This is why I, and the Clooney Foundation for Justice’s TrialWatch initiative, have submitted an amicus brief to the presiding court urging that the case against Panusaya and her co-defendants be dismissed. TrialWatch monitors criminal trials globally against those who are most vulnerable, including protesters, and advocates for the rights of the unfairly prosecuted and for the repeal of unjust laws. Through sending monitors to court to observe the hearings and analyzing case-file documents, TrialWatch has been monitoring the trial of the 22 protesters since late 2020. I am serving as the TrialWatch Expert to assess the fairness of the case, based on my fifteen years of judicial experience in the conduct of criminal trials as a former Justice of the Supreme Court of Victoria, Australia, as well as my expertise in human rights and criminal law.

Defendants such as Panusaya and her fellow protesters are not only facing prison time but have also been subjected to an unfair trial. It is a bedrock of international law that defendants be allowed to contest any arguments and evidence presented by the prosecution, something that has come up time and again in my own experience as a judge. In this trial, the prosecution has insisted that the protesters’ statements about the King’s time in Germany and expenditures were actually lies. This means that for the trial to be just and fair, according to obligations under international law that Thailand has itself accepted, the defendants must be given a chance to obtain materials, whether from Thai Airways, the Crown Property Bureau, the Committee on Budget Appropriations, or the Royal Office, to prove the truth of their case.

But the prosecution has refused to share such evidence and the judges conducting the trial have prevented it from getting into the courtroom. Any mention of the King is so sensitive that some of the orders granting the defendants bail come with the condition that they refrain from any activities that “might impact” the monarchy. What this means is left to the imagination.

Protests against the monarchy in 2020, including the September 19 demonstrations, precipitated the end of a several-year moratorium on lese-majeste prosecutions. In recent years the Thai King has taken steps to consolidate his power. Previously, when the King left the country, he was required to appoint a regent to rule in his stead. Now, based on the new constitution promulgated by the military following the 2014 coup, the King can travel abroad without having to temporarily cede control, facilitating the alleged absences from the country that have been the subject of criticism. Three months after the constitution’s passage, the military-appointed parliament also amended a decades-old law to give the King full authority over the Crown Property Bureau, which manages the monarchy’s finances. As a result, protesters have also been asking questions about the royal budget.

It was in this context and amid the tumult of COVID-19 that demonstrations such as the September 19 protest took place. In the words of Panusaya, “The budget did not come into effect on time and not one person was brave enough to say this straight because the signor wasn’t in the country. He was living a good life spending people’s tax money in Germany.” Despite the prospect of a 15-year prison term if she is convicted, over the course of the trial Panusaya continued her studies as a university student, specifically mentioning in a request for bail that she wanted to “go back to school and complete the 2nd semester of her senior year.”

Other defendants have faced similarly distressing circumstances. At one hearing a defendant charged with lese-majeste leaped up to stand on a courtroom bench, protesting his lengthy detention and calling the lese-majeste law “a cancer on society.” Indeed, as detailed in a recent report from Amnesty International, at least 17 children have been charged with lese-majeste over the past three years. Thai Lawyers for Human Rights, the leading Thai NGO working on these cases, has reported that more than 200 people have been charged with lese-majeste, the bulk of them young protest leaders and participants, since the moratorium ended in November 2020. In 2021, a 65-year-old woman and former civil servant was sentenced to 43 years in prison on a combination of lese-majeste charges just for sharing social media posts criticizing the monarchy. And the country has been gripped by a hunger strike launched by two female protesters in their early twenties, both of whom had been indicted for lese-majeste and stopped eating for 50 days to call for reform in the law and the release of others facing the same charges.

With no sign of abatement in these prosecutions, a more robust response is needed. Remedying the unfairness of the trial of the September 19 protesters, the largest lese-majeste trial thus far, is a vital first step. It’s past time for courts to let the defendants challenge these cases and stop letting prosecutors have it both ways: the defendants’ speeches can’t at once be false and not up for proof or discussion.