[Thailand] Media control for the long term

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On 22 May 2016, it will be the second anniversary of the last military coup in Thailand and two years of Thai people and media living under tough free-speech restriction imposed by the junta. Not only did the National Council for Peace and Order (NCPO), as the junta is officially known, put Thai media under its thumb since seizing the power from the elected government of Prime Minister Yingluck Shinawatra, it is likely to leave a colossal legacy for the nation to deal with in the many years to come.

A constitution-drafting committee, installed by the junta and led by Meechai Ruchupan, a legal veteran who has served many military governments in the past, has finished a draft and a national referendum on the draft constitution is set on 7 August 2016. If being voted in favor, the draft will become Thailand’s new constitution – the supreme law that sets direction for the country’s politics, economy, society and people’s and media’s liberties.

The NCPO has not revealed any alternative plan in case the Meechai draft constitution is voted down by the electorate. But the key question is how soon Thailand will have a new general election. Based on the referendum date and the fact that a number of constitution-related laws will have to be put in place first, in case the draft constitution is passed into law, it is expected that Thailand will see a new general election in late 2017 at the soonest.

A second draft constitution

This is the second draft in an NCPO effort to install a new constitution for the country after repealing the 2007 Constitution upon staging the coup on 22 May 2014. The first draft was rejected by a junta-appointed National Reform Council, which is now defunct, on 6 September 2015, after public outcry against many undemocratic provisions.

But the big question is whether the Meechai draft will allow Thai people to enjoy better guarantees for free speech, for more media freedom, and for the people a more democratic parliamentary system.

This article will discuss mainly the provisions dealing with free expression and media freedom in the draft constitution. There is cause for serious concern that that some of those provisions may crumble media reform efforts.

Apart from the widespread criticism that the draft will allow a non-elected person to become Thailand’s next prime minister and augment the power of the State over the people, the Meechai draft constitution includes provisions that can be seen as restricting freedom of expression of the people and media as compared to the two previous constitutions.

Draft provides free speech guarantee

At a good start, people’s freedom of expression and media freedom are generally guaranteed in the draft. Section 34 says: “A person shall enjoy the liberty in expressing opinions, making speeches, writing, printing, publishing and communicating meanings by other means.” Its wording more or less imitates the terms in Article 19 of the Universal Declaration of Human Rights and that of the International Covenant on Civil and Political Rights, and duplicates the wording of the previous 2007 constitution.

Interesting enough, the same Section also protects academic freedom, but it stipulates that the exercise of such freedom must not contradict “the duties of Thai citizens or good public morals and must respect and shall not obstruct different opinions of other people”.

In the two previous constitutions of 1997 and 2007, media freedom was included in the same provisions that protected people’s free speech. But in this current draft, media are dealt with separately in the following Section 35, which says: “People carrying out the profession of mass media shall enjoy freedom in presenting news or expressing opinion in complying with professional ethics.”

This seems to reflect the thinking of the junta, particularly that of junta leader General Prayuth Chan-ocha, also the prime minister, who believes that many news media, particularly private-owned newspapers, are unethical and partisan, and who never hides his dislike of any critical media.

Like in the two previous charters, the same Section 35 bars the State to shut down any newspaper or other media outlets, or to pre-censor any news story before publishing except during war time.

This Section also says: “No grant of money or other properties shall be made by the State as subsidies to private newspapers or other mass media.” But unlike the two previous constitutions, this Section further tightens the rule on government advertisement spending in private media by stipulating that any state agency which spends money or other properties for advertising or public relations in media must disclose such spending to the State Audit Commission and must declare it to the public. This could discourage state agencies, including state enterprises, from advertisement spending in private media at a time when private companies are trimming such expenditure because of the current economic slow-down.

Does not protect media people

This current draft, however, does not protect people working in private or state-owned media from interference by government leaders, politicians, senior bureaucrats or private owners of such media. Such protection was clearly stated in the 1997 and 2007 constitutions and before the last coup, press associations were working on a draft law to guarantee such liberties of media people, both private and state-owned.

With the current wording in the draft constitution, such hope of media people seems to have been quashed. Section 35 of the current draft simply says in the last paragraph that state officials working in mass media shall enjoy freedom in presenting news or expressing opinions, but “shall take into consideration the objectives and missions of the agency he or she is attached to”. It does not mention people working in private-owned media.

Right to information as State’s duties

The current Meechai draft does not take access to information as an inherent right of the people – in other words, it is not guaranteed as a right of the people. The draft, instead, makes it a duty of the State to disclose information under the possession of state agencies to the public, and specifically says they do not have to disclose information related to national security and military secrets.

In the two previous constitutions, access to information was stipulated under the chapter of “rights and liberties of the Thai people”. And the provisions would say: “A person shall have the right to” access information under the possession of state agencies.

The different placement and wording in the current draft could provide arguments for reluctant state agencies that it is not their duties to provide certain kinds of information to the public, and people are not entitled to appeal such rejection. As it is known that the existing Official Information Act of 1997, Thailand’s access to information law, is not a strong law of its kind, the current wording in the draft could now weaken any efforts to revise the current Act for a more progressive version.

Radio spectrum not seen as public resources

Another interesting issue in the current Meechai draft is the treatment of radio spectrum. In the previous two constitutions, transmission frequencies for radio and television broadcasting and telecommunications were seen as “national communication resources for public interest”, whose provisions were included in the chapter of “rights and liberties of the Thai people”. Then it could be interpreted that Thai people were entitled to have access to radio frequencies.

That is gone in the current draft. Radio frequencies are not mentioned as resources for public interest. Instead, it is now treated as a duty of the State in keeping radio spectrum as “properties of the nation” and in using it for the interest of the country and people.

This could also affect the regulation of broadcasting and telecommunications industries. Currently, the regulatory body, the National Broadcasting and Telecommunications Commission (NBTC), is an independent body whose commissioners are picked up by a process not influenced by the government.

But under the current draft constitution, transmission frequencies for radio and television broadcasting and telecommunications become the nation’s properties and the draft says that “the State shall provide for a State agency that is independent” in regulating transmission frequencies. This could be seen, in worse case, that now the government shall appoint the NBTC commissioners.

Earlier, it was speculated that the military junta would restructure the existing NBTC to the effect that any future allocations of radio spectrum would fall into the hand of the government, taking that key mission away from the regulatory body. However, so far the junta has not done anything to that effect yet.

If the draft constitution stays as it is now, it is certain that people’s free speech and media freedom would more or less revert to the situation prior to the 1997 Constitution, where liberties are granted by the whim of the rulers, but not guaranteed in the nation’s supreme law. It shall also be noted that the junta is also working on a number of new legislation and revising existing laws to tighten its control on media.

Outlook

If the current Meechai draft is passed as Thailand’s next constitution, it is certain that the State would become bigger and more powerful while the people would turn into being the ruled. Thai people have been enjoying liberties as never before since the 1997 constitution – which was drafted, for the first time, by an assembly whose members were elected by the electorate and, hence, was called as the “people’s constitution”.

Therefore, it is unlikely that Thai people would be willing to have their liberties stripped away. The two major political parties – Pheu Thai of Yingluck and Democrat of former Prime Minister Abhisit Vejjajiva – have said they would reject the draft. As did some major non-government organizations and people’s movements.

In case the draft is voted down on 7 August and the junta chooses to revive one of the two previous constitutions, Thailand could then see a general election next year. But if the junta decides to endeavor another effort to draft a new constitution, then it is hard to say when Thailand would be freed from the current military rule.


Comparison of the selected sections of 29 March and 29 January drafts of the proposed 2016 Constitution concerning media freedom and free expression

Note: This comparison is based on SEAPA’s translations of the drafts.

Final version of draft Constitution of Thailand B.E. 2559 released on 29 March 2016 The January 29 version of the  draft Constitution of Thailand B.E. 2559 Changes
General Section
Section 4
Human dignity, rights, liberty and equality shall be protected.Thai people shall be protected equally under the Constitution.
This provision is inserted in final 29 March draft.
Part 3: Rights and Liberties of the Thai people
Section 31
A person shall enjoy full-fledged freedom (เสรีภาพบริบูรณ์) of religion and shall have freedom to practice or conduct rituals in accordance with his or her religion but such practice shall neither contravene the duties of Thai citizens nor endanger safety of the State (ความปลอดภัยของรัฐ) or go against order and public good morals.
Part 3: Rights and Liberties of the Thai people
Section 31
A person shall enjoy all full-fledged freedom (เสรีภาพบริบูรณ์) of religion and shall have freedom to practice or conduct rituals in accordance with his or her religion but such practice shall neither contravene the duties of Thai citizens nor endanger security of the State (ความมั่นคงของรัฐ) or go against order and public good morals
The word “all” was removed from the 29 January  version.
Section 34
Paragraph 1
A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise and make expression by other means.The imposition of restriction on this liberty is not permitted except by virtue of provisions of the law specifically enacted to maintain the security of state, protect individual right, maintain peace or public good morals, and protect the health of people.
Section 34
A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise and make expression by other means.The imposition of restriction on this liberty is not permitted except by virtue of provisions of the law specifically enacted to maintain the security of state, protect individual right, maintain peace or public good morals, and protect the health of people or prevent rift or hate (ความแตกแยก หรือความเกลียดชัง) within the society.
The latest draft charter deleted the controversial phrase “prevent rift or hate within the society,” after concerns raised by media professional groups and other civil society groups that the words “rift” and “hate” are dangerously broad; while the word “prevent” may imply censorship.
 The phrase “prevent rift or hate within the society” has been omitted.
Paragraph 2
Academic freedom is protected but exercising such right must not contravene the duties of Thai people or good morals, and respect and do not object different opinions of others.
Paragraph 2
Academic right is protected but exercising such right must not contravene the duties of Thai people or good morals.
1. The phrase “academic right” has been changed into “academic freedom”.
2. The phrase “ Academic freedom is protected but exercising such right must not contravene the duties of Thai people or good morals, and respect and do not object different opinions of others” has been added.
Section 35

Paragraph 1: A person who practices mass media profession enjoys the liberty to publish news and information or express his or her opinion in accordance with professional ethics.

Section 35

Paragraph 1: A person who performs mass media career enjoys the liberty to publish news and information or express his or her opinion in accordance with professional ethics.

 The word “perform” was changed with the word “practice”
Paragraph 2:
The closure of a pressing house or other mass media in deprivation of the liberty under this section is prohibited
Paragraph 2:
The closure of a pressing house or other mass media in deprivation of the liberty under this section is prohibited
No change.
Paragraph 3:
Prior censorship of news and contents produced by mass media practitioners by competent state officials before publication in the newspaper or any other mediums is prohibited except when the country is under the state of war.
Paragraph 3:
Prior censorship of news and contents produced by mass media practitioners by competent state officials before publication in the newspaper or any other mediums is prohibited except when the country is under the state of war.
No change.
Paragraph 4
The owner of any newspaper or other mass media shall be a Thai national
Paragraph 4
The owner of any newspaper or other mass media shall be a Thai national
No change.
Paragraph 5
No grant of money or other properties shall be made by the State as subsidies to the activities of any private newspaper or other mass media. State agencies which grant money or any properties to mass media for advertisement and public relation or for other similar purposes must declare details of such support to the National Budget Inspection Commission within a designated timeframe and make public announcement.
Paragraph 5
No grant of money or other properties shall be made by the State as subsidies to the activities of any private newspaper or other mass media. State agencies which grant money or any properties to mass media for advertisement and public relation or for other similar purposes must declare details of such support to the National Budget Inspection Commission within a designated timeframe and make public announcement.
No change.
Paragraph 6
Public officials who perform media duties shall enjoy the liberty under paragraph one but such performance must be in line with objectives and mission of any agency he or she belongs to.
Paragraph 6
Public officials who perform media duties shall enjoy the liberty under paragraph one but such performance must be in line with objectives and mission of any agency he or she belongs to.
No change.
Section 36
A person shall enjoy the liberty to communicate with each other by any means.The censorship, detention and disclosure of information shared between persons including any act to know or acquire such information is not permitted except by virtue of an order or a court order or by other causes provided by a law.
Section 36
A person shall enjoy the liberty to communicate with each other by any means.The censorship, detention and disclosure of information shared between persons including any act to know or acquire such information is not permitted except by virtue of an order or a court order or by other causes provided by a law.
 No change.
 Article 41
A person and community shall enjoy the right to
1) Be informed and access to information and public news under possession of state agencies in accordance with the law.
2) File a complaint with state agencies and receive a quick response. (sec 59)
3) Take legal action against state agencies to take responsibility for action or inaction committed by civil servants, staff or employees (sec 60)
 Article 41
A person shall enjoy the right to file a complaint with and take legal action against state agencies.
Delineation and the exercise of such right under Paragraph 1 shall be provided by the law.
 March 29 draft has more detail than January 29 draft and divided into three sections.
1. The “right to be informed, and access to information and public news” has been added.
2. The “right to petition ” has been replaced the right to “file a complaint”
Part 4: Duties of Thai people
Section 50 (10 duties)
(6) Respect and do not violates rights and liberty of others and shall not act that may instigate rift (ความแตกแยก) or incite to hate (ความเกลียดชัง) in the society
Part 4: Duties of Thai people
Section 50 (10 duties)
(6) Respect and do not violates rights and liberty of others and shall not act that may instigate rift (ความแตกแยก) or incite to hate (ความเกลียดชัง) in the society
No change.
Section 60
State must safeguard transmission frequencies and satellite orbit rights, which are national treasure (สมบัติของชาติ)for national and public interests.
The utilization of such frequencies or satellite orbit rights under paragraph one either for broadcast transmission, radio and television and telecommunication or any other purposes must serve an utmost benefit of the public, security of the State and public interest including allowing people to benefit from such utilization as provided by the lawState must enable a setting up of an independent body to take responsibility and regulate the operation of frequencies in under paragraph two.In carrying out the act under paragraph two, the body under paragraph 2 must put in place measures to prevent the exploitation and the overburdening of consumers, protect signal jamming including guarding against any act to obstruct the liberty of the public to receive or block their access to accurate information, and prevent anyone or a group from using frequencies in disregard of people’s rights including determining minimal allocation of frequencies for public interest in accordance with the law enacted for that purpose
Section 56
State must safeguard
transmission frequencies and satellite orbit rights, which are national communication resource (ทรัพยากรการสือสารของชาติ)for national and public interests.The utilization of such frequencies or satellite orbit rights under paragraph one either for broadcast transmission, radio and television and telecommunication or any other purposes must serve an utmost benefit of the public, security of the State and public interest including allowing people to benefit from such utilization as provided by the lawState must enable a setting up of an independent body to take responsibility and regulate the operation of frequencies in under paragraph two.In carrying out the act under paragraph two, the body under paragraph 2 must put in place measures \to prevent the exploitation and the overburdening of consumers, protect signal jamming including guarding against any act to obstruct the liberty of the public to receive or block their access to accurate information, and prevent anyone or a group from using frequencies in disregard of people’s rights including determining minimal allocation of frequencies for public interest in accordance with the law enacted for that purpose
1. The phrase “national communication resource” has been changed into “national treasure”.
Article 63
State shall support and promote Buddhism and other religions. In protecting Buddhism, which has long been observed by the majority of Thai people, state shall provide measures and mechanism to prevent any action that undermines the religion and encourage Buddhists to participate in the implementation of these measure and mechanism.¬
Article 63 f has been deleted and does not exist in the March 29 draft.