Translation from Original by Supreme Court Judge Yindee Watcharapong Torsuwan : Lese Majesty Law 112 / Ar Kong Case

 โดยดร.ไก่ Tanond

บทความและคำแปลเป็นภาษาอังกฤษ ของท่านผู้พิพากษายินดี วัชรพงศ์ ต่อสุวรรณ เรื่องกฎหมายหมิ่นพระบรมเดชานุภาพ ศาล รัฐบาล รัฐสภา กองทัพ และพรรคการเมืองต้องไม่หลงประเด็นคดีหมิ่นพระบรมเดชานุภาพ
http://manager.co.th/Daily/ViewNews.aspx?NewsID=9540000159800

This academic article is about principles of rectitude for exercising court authority which requires highly intelligent principles (Dharma) so called “Atamayata” and worldly-minded intelligence for living healthily mentally and physically worldly (worldly-wise) for just, prosperity, culture preservation, and morality. The reason is that the current court function is amidst high social conflicts and resultant social viciousness (U-batwa in Pali means results of conflicts. Wherever conflict arises, so does viciousness). As a result of viciousness, the court has to exercise the duty rightfully based on justness of legality, culture, morality and probably religions.

The information from the public media about Lese Majesty case of Mr.Amporn, known as Ar Kong, 61 years old, reveals that he sent SMSs from mobile phones to third parties. The SMSs consist of profanity defaming and abusive words to Royal institutions, libels to the Queen. The court sentences the defendant to 5 years imprisonment for each deed. He committed 4 deeds in all, making a total of 20 years imprisonment, in the case number Red 4726/2554. In another case, Mr.Lerpong Wichai Commart or Sin Sae-jew or Joe Gordon, a 54-year old Thai-born with American nationality, is jailed with a relieved sentence of 2-and-a half-year after pleading guilty of Lese Majesty and instigation of public to violate the law.

Both sentences spark critiques against the court. Such critiques accuse the court of excessive punishment and further a proposal for abolition of Criminal Codes Act article 112. A foreign Ambassador and UN High Commissioner for Human Rights call for an amendment of Lese Majesty laws, and request the government to order the police and the state attorney to refrain from charging people with subtle laws. Meanwhile the Truth for Reconciliation Commission of Thailand (TRC) has come out to propose unity and integration of all authorities involving in Lese Majesty law. Also TRC proposes that such cases should be under state attorney’s judgement either to prosecute or not, while Lese Majesty defendants would be eligible for temporary release on bail. In addition, there should be standardized procedures for Lese Majesty cases, not to be abused during time of political conflicts.

In the meantime, the government has never prosecuted those widespread Lese Majesty websites which undermine the national security. The government, by the Deputy Prime Minister, has just vaguely agreed with suppression of Lese Majesty websites along with purchasing of websites suppression instruments costing 400 million baht (USD 13 million). If they can actually suppress such websites, they may also be used for protection or for blackmailing perpetrators depending on the instrument controller’s wishes.

The recent domestic and international claims that court’s sentences, according to article 112 for Lese Majesty convicts, violate human rights and are not of universal standard of justice as exemplified by “Ar Kong case” and “Joe Gordon case” to justify repealing of article 112, are in contrast with long presence of membership of the UN Human Rights Treaties.
The author would like to raise issues to point that Criminal Codes article 112 complies with human rights principles and international standard of the international treaties which Thailand has already been a member.

1.Thai history and culture

Historically and culturally, the King is the head of the state. From ancient time, the Kings were the rulers and army leaders in war times, as well as the administrators of diplomacy to protect the land and citizens from foreign invasion. The Kings united the territories since Sukhothai, Ayudhaya, Thonburi and Ratanakosin were capitals. The Kings and Royal institutions therefore has affection and affinity to the people. The people love, respect, worship and are grateful to the Kings and Royal institutions because of the centuries-long benefaction and patronage of the Kings toward the people and the country. Consequently, Thai culture was born as a culture with the King as the head to whom all Thai citizens have loyalty and psychologically look up to. Thus, Royal institutions have been cores of Thai national security.

When the country changed the administrative system to democracy by "Citizen Party", HM Rama 7, on abdicating the throne, gave the administrative authority to the people in order that they would govern themselves. Since 1932, the governments then and until now have accepted that our Thai culture has the King as the head whom the people have developed loyalty, respect and worship. The people hold Royal institutions centripetally and cores of national security of the Kingdom.

Because of such culture, democratic administrations agree to apply such principle to govern the country which is Constitutional Monarchy and has lasted for over 75 years. The acceptance of such culture is evident in the present constitution's article 2 saying, "The Kingdom of Thailand is under a Constitutional Monarchy" and article 8 saying, "HM the King is in the highly repectful status which no one may violate, accuse, nor prosecute in anyway."  

Such culture, binding people together as a nation, resides in people's hearts and souls. The people realize that such culture is the national security. Therefore, the Consitution has enacted the state's policies to preserve and defend the culture in the state's security policies article 77, "The state must preserve and defend the Royal institutions, sovereignty, autonomy and integrity of the country's jurisdiction. The state must be armed with military force, ammunitions, adequate and advance technologies to defend the autonomy, sovereignty, state security, Royal institutions, national interests, and the Constitutional Monarchy as well as country's development." Also, several other articles in the constitution have confirmed the centripetal culture as the national security. The 2007's Constitution has passed the national referendum to confirm the national agreement that the whole nation intends to preserve such national security culture in which the King is the head and inviolable.

Thailand has never been a colony or under protectorate of any country. Thailand is a small country which has continuously preserved her autonomy because of the culture in which the King is the head and the centripetal embodiment of the whole nation. National assimilation, taking over a nation, total annihilaton may be possible following an unfair election, electoral frauds and undemocratic environment as defined against "democracy".

Since integration of races is unforbidable, Thai-born of other races from rich countries or super power may become a prime minister of Thailand through an election. Either domestic Thai or Thai-born person can afford to win an election. The source of fund cannot be traced because there is no effective organization to vertify and control the source of fund imported for electoral frauds.

Attempts of present Thai politicians to win elections evidently are only racing toward Thai national treasures and country's center of power. Whereever there is a conflict between immoral exercise of authority against impeding moral senior governmental officials, there would be a purge to get them out of the way or bribery to satisfy their greeds, exploiting and sharing national treasures in between themselves.

Such elections to access Thai treasures and power, thus, could result in the administors who could be traitors and saboteurs. Evidently, for example, a Peruvian nationality of Japanese inheritance President of Peru won an election and recovered Peruvian economy but committed corruptions and human rights abuses. He fled from the country to seek sanctuary in Japan.

The most effective means of sabotaging national security are eradication of the psychological culture of loyalty, respect and worship of the King and Royal institutions. Lese Majesty against the King and Royal institutions to instigate hatred and feud is not only to the Royalty but also to the Thai culture and national security.

The criminal offence against article 112 is therefore not only an offence toward the reputation and dignity of the King and Royal institutions, but also an offence against the culture and national security. Consequently, article 112 is enacted in the Criminal Codes Act, Section of Offences Against the Security of the Kingdom which possesses severe penalties to match the crimes.

2. The criminal offence against article 112 possesses penalties in accordance with Humanitarian principles as defined by International Covenant on  Economic, Social and Cultural Rights.

The UN High Commissioner for Human Rights issue an international treaty for human rights in economy, society, and culture which accepts cultural rights as defined in the preamble of the treaty, "everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights". Also, articles 1 and 15 say, "The States Parties to present Covenant Recognize the right of everyone:(a) to take  part in cultural life". Thus, the Criminal Codes Act article 112 is in accordance with the treaty for human rights in culture and must be supported by the UN High Commissioner for Human Rights.

The claim by the UN High Commissioner for Human Rights of the unjustifiability of Lese Majesty law, consequently supports a group of people who want to undermine Thai culture and national security. Since Thailand is a member of the treaty, such claim by the UN High Commissioner for Human Rights and an ambassador may be considered instigating division of the society and Thai citizens, which is against the principles of human rights because such claim destroys peaceful coexistence of the citizens of a member of UN, and violates international conventions as well as the United Nations Charter.

3. Ar Kong and Joe Gordon's deeds are violation of human rights principles as stipulated by International Covenant on Civil and Political Rights, Article 17, 19

Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
 (a) For respect of the rights or reputations of others;
 (b) For the protection of national security or of public order (ordre public), or of public health or morals.

Thus, the International Covenant on Civil and Political Rights does not give freedom of expression. Instead, it is an international covenant to protect human rights of victims and the national security, public order, public health and morality of the public of member nations because the covenant permits member nations to enact laws to protect the rights and reputations of others as well as the national security, public order, public health and morality.

Thailand has enacted the laws accordingly to protect the rights and reputations of others as well as the security of the Kingdom of Thailand, public order, public health and morality, in article 45 of the Constitution which states,"Every person has freedom of expression, speech, writing, printing, press, and any communication means. Restriction of the rights in the first clause is not permitted except provided by the laws to protect the state security; rights, freedom, dignity, reputation, family and privacy rights of others; or to protect public peace, order and morality; or to protect public psychological or physical health. "

Moreover, the constitution stipulates the limitation of anyone exercising of the rights and freedom to protect the culture and security of the country in article 68, "No one shall be allowed to exercise the rights and freedom as stipulated by the constitution to aboish the Constitutional Monarchy." Since Thailand has the constitution to protect the culture and national security which is in agreement with the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political rights, Thai courts sentencing of "Ar Kong case" and "Joe Gordon case" are, as a result,in accordance with international human rights principles and on humanitarian grounds.

4. The court proceedings in "Ar Kong case" and "Joe Gordon case" are based on rightful ground and justness which follow principles of human rights of both the defendants and the victim, head of the country, because human rights do not limit only to the defendants and convicts but also include the victims' human rights.   

The offence in these cases are against the head of the country as well as the undermining of the national culture which can be considered as attempting to abolish Constitutional Monarchy system. Thus, it is of a national security concern and all people who possess the culture of the King as the head of the Kingdom may be considered having their human rights violated. (Everyone may enjoy his cultural right.) Therefore, the people has the right to accuse persons or political parties which commit an abolition of national security related culture. The people have the rights to submit a complaint to the attorney general to investigate and proceed to filing to the Constitutional Court to cease such violation by themselves. (even without the attorney general's conclusion--Supreme Court Judge Yindee's opinion) because it is so crucial to protect the nation's catastrophe resulting from the abolition of national security related culture. If it is a case of a political party who commits such offence, the people may not file a complaint to the Constitutional Court but the court may order a disband of the party and its politician's political rights, if the court sees appropriate, as stipulated by the constitution article 68.

5. Why a foreign Ambassador and the UN High Commissioner for Human Rights come out in "Ar Kong case" and "Joe Gordon case", may be because of inadequate knowledge of Thai culture. The foreign ministry has the duty to explain this to foreigners because it involves national prides and sovereignty, and could affect the administration of the court, the government and the house of legislation as well as the Royal Thai army which have to protect the Kingdom's security.

If the foreign ministry ignores such explanation, or if it cannot explain to the foreign nations and international organizations, for whatever reasons, the Bureau of the Court of Justice should explain through the foreign ministry or advise the foreign ministry to proceed accordingly. If the misunderstanding is ignored, the roles of foreign nations and international organizations may turn to be severe internal national security as well.

Original Article in Thai 
By Supreme Court Judge Yindee Watcharapong Torsuwan
December 15, 2011
Translated with slight modification, if any errors are present, they belong to Ronayos.
 

...ปวง ข้าพระพุทธเจ้า พสกนิกรผู้จงรักภักดีในใต้ฝ่าละอองธุลีพระบาท และหวังจะเห็นประเทศไทยมีการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริย์ เป็นประมุขอย่างแท้จริง ขอถวายพระพร และยืนยันว่าจะติดตามทวงถาม เรียกร้องและต่อสู้ให้บรรดานักการเมืองผู้ยักยอกอำนาจอธิปไตยของปวงชนและพระ ราชอำนาจในระบอบประชาธิปไตยนำอำนาจนั้นกลับมาคืนและถวายคืนโดยลำดับ../ศ. ปราโมทย์ นาครทรรพ