Trial Observation: Case renews tack on constitutionality of lese majeste laws

Court okays defence request to accept verdict on the constitutionality of Article 112 of the Thailand Penal Code

Bangkok, 25 July 2012  – The low-profile trial of Ekachai Hongkangwan, a man caught selling pirated copies of an allegedly defamatory TV documentary has re-opened a constitutional challenge to the use of the controversial lese majeste law or Article 112 of Thailand’s Penal Code.

The 17 July trial, which was originally scheduled for four days, was postponed to 20 November after three days to give the defence team time to produce witnesses after agreeing to focus their defence strategy to ‘proof of intent’ instead of a combination with a ‘truth defence’ as originally planned.

Constitutional challenge

During the trial, the two presiding judges accepted defence lawyer Arnon Nampha’s request to seek the Constitutional Court’s ruling on whether Article 112 of the Thailand Penal Code contravened the current 2007 Constitution’s Section 29 on restriction on rights and liberties, Section 45 on freedom of expression, Section 6 on the supremacy of the Constitution, and Section 8 on the inviolability of the King.

Arnon argued that Article 112 could not be enforced in this case, if the constitutionality ruling was in his favour on any of the following issues:

  • The proportionality of penalty imposed on lese majeste convictions;
  • The lese majeste law is not a special law, thus cannot be invoked to limit freedom of expression permanently;
  • The inviolability clause in the constitution applied only to the king; and
  • The immunity to punishment of criticism made in good faith and in the public interest.

This is the second time the constitutionality of Article 112 of the Penal Code has been questioned in a lese majeste case.

In April this year, the lawyer of Somyos Prueksakasemsuk, an editor of a political magazine also detained under the lese majeste laws, filed a similar request to the Constitutional Court to determine if Article 112 violated sections 3 and 29 on the rule of law in the Thai Constitution.

The Constitutional Court did not accept the petition for examination, saying that the request of Somyos’s lawyer did not follow the process prescribed in the 2007 Constitution.

Arrest and charges

On 10 March 2011, Ekachai, 36, was arrested at a political rally of an anti-Article 112 red-shirt splinter group in Bangkok while selling pirated CD copies of ‘Long Live the King’ a TV documentary produced by the Australian Broadcasting Corporation (ABC), about the future of Thai monarchy and lese majeste law, which contained footages and subtitling allegedly insulting to the Crown Prince Maha Vajiralongkorn.

According to the first prosecution witness, Police Lieutenant Major Somyot Udomraksasab from the Chanasongrkam police station, he ordered his subordinate to disguise as a client to buy a copy of the dubious CD from Ekachai at 20 baht and bring it to his office for review.

‘After watching the video (subtitled in Thai), we found strong evidence to warrant his arrest,’ he told the judges on the first day of the trial.

Aside from 72 copies of the ABC documentary, police also found in Ekachai’s bag four copies of WikiLeaks cable manuscripts containing what they believed to be defamatory remarks about Queen Sirikit and the Prince Vajiralongkorn.

A follow-up search of Ekachai’s house also found more than 100 CD copies of the ABC documentary, blank CDs, a CD writer, and 10 more copies of the WikiLeaks manuscript.

Ekachai admitted he was aware of the content in the documentary but said he had no intention to defame the monarchy. He merely wanted to let the Thai public be aware of the foreign media’s view about Thailand.

The former lottery agent was charged for violating Article 112 of Penal Code (lese majeste) for distributing such material, and the 2008 Film and Video Act for illicitly selling the videos. He was detained for nine days before being released on a 500,000 baht (equivalent to USD16,700) bail bond posted by his parents.

If found guilty, he could be imprisoned for up to five years.

Narrowed defence strategy

Ekachai’s legal team originally designed a two-pronged defence approach to determine both proof of intent and truth in the case.

For the latter approach, they had wanted testimonies from ABC regarding the factuality of the information contained in the documentary, as well as from Privy Council President Prem Tinsulanond and Councillor Siddhi Savetasila about comments attributed to them in the WikiLeaks document.

ABC has refused to take action of the defence team’s request saying that the documentary was not intended for a Thai audience. Furthermore, an ABC official has told the defendant that the company ‘did not encourage’ such action considered as a violation of their copyright.

The court has not summoned the two Privy Council officials, who have also been requested for a court appearance by the defence team without receiving any response.

Their appearance would be unprecedented in such a case, and would make the court uneasy because of the stature of both persons.

Without testimonies from these witnesses, the defendant had to abandon truth as defence strategy.

At the trial, the defence team was also reminded of the legal principles of truth not being a defence and of public interest contained in both the lese majeste and criminal defamation laws.

Left with a proof of intent approach, the defendant will have to prove that he shared the information in good faith without any intention to defame the monarchy.

The trial was then postponed to give time to the defendant to find witnesses to prove their good intention with regards to the charges.

Ekachai’s trial has caught little attention of the local media, which is usual in previous lese majeste cases due to the sensitivity of the issue in Thai society.