UPDATE: After spending five hours in court cell, Phuketwan reporters Alan Morison and Chutima Sidasathian are released on bail (100,000 Baht each) and are remanded to appear in court again on May 26, according to a report by Australia’s The Age.
The trial against two Phuket journalists for alleged defamation is set to begin today. The Royal Thai Navy has sued Phuketwan reporters Alan Morison and Chutima Sidasathian for their coverage of the Thai authorities’ involvement in human trafficking of Rohingya migrants from Burma. This has been complicated by the fact that the offending passage was a quote from another report done by the international news agency Reuters. Both are facing up to seven years in prison if found guilty.
The charges were filed in December last year (see our original blog post here). Both journalists were charged not only for libel, but also also allegedly breaching the Computer Crimes Act, which makes arbitrary legal suits against online dissent (including by third parties) possible thanks to the vague wording of the law. Phuketwan - which has reported extensively on the plight of the Rohingya at the hands of Thai authorities – has quoted from a Reuters special report that specifically accuses members of the Royal Thai Navy of being involved in the trafficking of Rohingya refugees.
The case has drawn international condemnation and has now seen an interesting development:
Reuters won a Pulitzer Prize on Monday for international reporting on the violent persecution of a Muslim minority in Myanmar [Burma], the Pulitzer Prize Board at Columbia University announced.
The board commended Jason Szep and Andrew Marshall of Reuters for their “courageous reports” on the Rohingya, who in their efforts to flee the Southeast Asian country, “often falls victim to predatory human-trafficking networks.”
“Reuters, Guardian US, Washington Post, Boston Globe win Pulitzer prizes“, Reuters, April 14, 2014
A list of their coverage can be seen here.
Several observers have noted that the Royal Thai Navy have so far not pressed charges against the global news agency Reuters, but instead after the local Phuketwan and to “make an example of them for others,” as Bangkok Pundit blogged yesterday.
Several journalists and media advocacy groups have repeated their calls to drop the charges against Morison and Sidasathian ahead of today’s trial. Their case – as with the plight of the Rohingya refugees themselves – has received hardly any coverage in the Thai-language media:
However, [Chutima Sidasathian] said she received little or no help from the Thai authorities. Neither the National Human Rights Commission (NHRC) or the Thai Journalist Association (TJA) has offered their assistance in the legal procedure, Ms. Chutima told Khaosod, while her letter to the Rights and Liberty Protection Department went unanswered.
“I filed the letter to the officials in Phuket last month. I just discovered that somehow they did not forward the document to Bangkok,” Ms. Chutima said, “I am shocked”.
She is also disheartened by the fact that the lawsuit against Phuketwan has received very little coverage in the Thai mainstream media.
“Phuket Journalists To Face Lawsuits Filed By Navy“, Khaosod English, April 8, 2014
The case has already set a worrying precedent – it is reportedly the first time the Thai military has made use of the Computer Crimes Act – and things could get even worse if they are convicted. It shows that the Thai authorities have no apparent interest in the treatment of Rohingya migrants in Thailand (as summarized here) or investigating the human trafficking allegations.
The Constitutional Court’s ruling to annul the February 2 elections Friday rewards those that attempted to stop the polls from taking place and marks a dangerous development in the ongoing political crisis – something that we have witnessed before.
16.57 สนนท ใช้สีสเปย์พ่นใส่ผ้าดำคำว่า ” 20ล้าน + 3 < 6 RIP แสดงถึงสัญาลักษณ์คัดค้านศาลรัฐธรรมนูญ pic.twitter.com/13l8YGRM6P
— Note DN (@NoteBUJR) March 21, 2014
Activists have wrapped Democracy Monument in black cloth after the Constitutional Court’s ruling to annul the February 2 elections. The text says “20 million [voters] + 3 < 6 [judges] RIP”.
Ever since the anti-government protesters downsized their rallies and relocated to Lumphini Park earlier this month, the political battlefield has shifted its focus to the judiciary. Whether it’s the crippling of the emergency decree (which has now been lifted) or the ruling against the 2 trillion Baht ($62bn) transport plan, the caretaker government of Prime Minister Yingluck Shinawatra has faced strong opposition and was handed a series of defeats at the hands of the courts.
On Friday, it suffered another setback:
The judges on Friday voted 6-3 to declare the Feb. 2 vote unconstitutional because elections were not held in 28 constituencies, where anti-government protesters had prevented candidates from registering. The constitution says the election must be held on the same day nationwide.
The court ordered that new elections take place.
“Thailand’s court rules elections invalid“, Associated Press, March 21, 2014
The reasoning that the elections were not held on the same day is at best contentious thanks to a one-sided interpretation of the law*. Here’s what fellow blogger Bangkok Pundit wrote before the ruling:
It is important to note that [Section 108 of the Constitution] doesn’t explicitly state the the election must be the same day, it is the election date must be fixed (or set) as the same date. These are slightly different things (…) if the election date is set nationwide for February 2 and then we have a natural disaster or political protests and elections in one more constituencies cannot take place, is this unconstitutional? Essentially, this will be the question considered by the Court, but then when it likely rules it was unconstitutional, the Court should make clear on specifically the extent of the problem.
“Thai court nullifies February election“, Bangkok Pundit, March 21, 2014
That is exactly what the Constitutional Court did NOT do! It did not acknowledge the circumstances that left the elections incomplete. The court didn’t take into account that the Election Commission – especially commissioner Somchai Srisuthiyakorn - has been all too vocal in its reluctance to hold an election and has also been very hesitant scheduling the catch-up voting dates; it has only held re-runs in five provinces, moving the rest to April.
But the more severe implication of the court’s ruling is that it rewards the anti-democratic behavior of the anti-government protests, since it was them that blocked voting stations in Bangkok and large parts in the South on election day and disrupted the candidacy registration back in December. To add further insult to injury for the caretaker government, the court dismissed its petition to outlaw the protests back in February, effectively endorsing the antics of the main protest group and its affiliates.
While the ruling also ordered for the whole election process to start over again, no time frame has been set yet by the Election Commission – that is, if we’re actually going to get there in the first place. Not only has protest leader Suthep Thuagsuban already promised to derail any near-future elections (while not saying anything against the upcoming senate elections at the end of March – a crucial tool for a potential impeachment), but the caretaker government still has to endure further legal challenges against it.
The National Anti-Corruption Commission’s (NACC) filed charges against Yingluck for alleged negligence of duty in the government’s disastrous rice-pledging scheme and against 308 mostly government lawmakers for their role in constitutional amendments that would have changed the make-up of the senate – both cases could force them out of office.
Yesterday’s decision by the Constitutional Court is a dangerous déjà vu that mirrors the events of 2006, where under similar beleaguered circumstances the government of then-PM and Yingluck’s brother Thaksin Shinawatra called for snap elections, only to be boycotted by the opposition and to be annulled by the Constitutional Court. While a new election date was set, the military coup pre-empted it and exploited the power vacuum.
With similar circumstances today and the Yingluck government facing more legal torpedoes, the judiciary might have thrown do the gauntlet to pro-government red shirt supporters, which has recently seen a change at the helm: the promotion of Jatuporn Prompan as the leader of the umbrella organization United Front for Democracy against Dictatorship (UDD) signals a readiness for confrontation should the government by toppled.
That and the utter disregard by the protesters, the opposition (the Democrat Party refused to take part and many of its members are rather at the rallies) and now by the judiciary for the democratic principle of elections makes this development much more dangerous, as the political polarization is getting closer and closer to breaking point.
As April approaches again, so is the traditional Thai New Year’s festival known as “Songkran”. Many Thais will take the days off and travel to their families, conduct merit-making and/or join in the fun of splashing each other with water – which has arguably taken over as the main part of Songkran for many, most of all foreign tourists.
It is also arguably – besides the Christmas season – the time of year that is most heavily advertised by the Tourism Authority of Thailand (TAT) in order to bring in a lot tourists (and given the current political crisis, the country needs a lot of tourists now too). Where else in the world could you celebrate the Thai New Year other than in Thailand itself, right?
A Tourism Authority of Thailand (TAT) executive said on Tuesday that she plans to consult other state agencies to see if legal action could be taken to protect Thailand’s cultural heritage in the wake of a Singaporean plan to hold a “Songkran” festival in the city-state next month.
TAT Deputy Governor for Tourism Products Vilaiwan Twichasri said she would hold talks with officials at the Department of Intellectual Property, Ministry of Commerce and Ministry of Culture to study intellectual property provisions on the issue.
If the law allows, TAT could take legal steps to prevent member states of the Asean Economic Community from conducting and organising traditional cultural activities based on Thai arts and culture, such as Songkran and Loy Krathong festival.
“Suit eyed for Singapore Songkran“, Bangkok Post, March 18, 2014
*gasp* How could they! How could the Singaporeans exploit something essentially Thai and attempt to make an easy buck at the same time when the tourists are to supposed to come to Thailand and spend their money here?
Don’t let the ever vigilant Thai Ministry of Culture get hold of this…
A senior Culture Ministry official has threatened to sue organisers of a Songkran festival in Singapore next month, saying it will undermine the value of the rival Thai New Year celebration.
Culture Surveillance Bureau director Yupa Taweewattanakijbaworn said Songkran is not just about splashing water for fun, but is aimed at strengthening relationships between family members and communities.
Singapore is using the festival to promote tourism, without acknowledging the value of the traditions behind Songkran, she said. “This is wrong because the value of the traditional celebration is being distorted,” she said.
“Official threatens to sue Singapore over Songkran“, Bangkok Post, March 19, 2014
…too late! The self-proclaimed cultural heralds of ‘Thainess’ – or as we regularly call them “ThaiMiniCult” – yet again come out swinging hard, all in the name to protect the sanctimony of Thai culture – or the construct of what they believe it supposedly is. Just as seen numerous times in the past, the (moral) Thai authority knows best how to preserve our values and traditions against pesky foreign influences, as it happened with Thai food just to name one case. Or that one time where it saw Thailand’s moral reputation endangered by a lame SNL-sketch? Or that other time Lady Gaga wanted to buy a fake watch? And does anybody still remember “planking”?
As if that wasn’t enough, the “ThaiMiniCult” also has to explain us Thais what Songkran is actually about – and that is definitely not splashing water and dancing around topless (regardless that the moral crusade was undermined by a traditional painting depicting topless women on the ministry’s website)!
Let’s assume for a minute they would actually go ahead with a legal complaint: where would they file it? And since when has Thailand trademarked Songkran? Even if it would be a registered intangible cultural heritage – which the Thai authorities are working on hard lately - that wouldn’t either. You cannot simply monopolize culture (something “ThaiMiniCult” regularly lays claim on domestically), even if you end up using it a marketing schtick – which the Thai officials are accusing Singapore of of doing exactly that, by the way.
Then there’s the stated fear of Songkran being “distorted” from its original “Thai” roots. How are you going to forbid other countries to celebrate a festival that essentially the same? Mid-April marks the new year for many other countries in the region: Chaul Chnam Thmey in Cambodia, Thingyan in Burma, Pbee Mai Lao in Laos and even in Yunnan, China - they are all essentially celebrating the same festival with the same customs and traditions in the same way the Thais do.
And one more thing: nobody has thought of suing Thailand for its interpretation of Christmas – and its utter failure to acknowledge the values and tradition of that holiday – yet. Let’s hope they don’t try to steal it.
The Thai Civil Court yesterday ruled to sharply limit the authorities’ powers to deal with the ongoing anti-government protests, while maintaining the state of emergency which was declared last month amidst increasing violent incidents.
The case was filed to the court by Mr. Thaworn Senniam, a core leader of the People′s Committee for Absolute Democracy With the King As Head of State (PCAD) [sic!], who argued that the State of Emergency enacted by the government of Prime Minister Yingluck Shinawatra violates the rights to free assembly guaranteed by the 2007 Constitution. (…)
At 15.00 today the majority of the judges ruled that the government will not need to repeal the State of Emergency, but the verdict also prohibits the authorities from exercising many powers prescribed in the emergency decree.
According to the verdict, the security forces cannot launch a crackdown on anti-government protesters, seize any chemicals from the protesters, dismantle any barricades erected by the protesters, prevent individuals from entering any building at their own will, close down traffic, evacuate or seal off protest areas.
Most notably, the authorities are also prohibited from banning political gathering – the crucial aspect of the emergency decree.
“Court Strips Govt Of Various Emergency Powers“, Khaosod English, February 19, 2014
The ruling comes a day after deadly violence erupted between security authorities and protesters on Tuesday at Phan Fah Bridge as the police attempted to reclaim some rally sites occupying public roads. One policeman and four protesters were killed by gunshots with 68 reported injured. It appears that both the police, but also men among the protesters, were heavily armed and exchanged gunfire, in addition to a widely circulated online video showing a grenade attack on police officers (WARNING: graphic content!).
The court, however, found that the protests were being carried out “peacefully without weapons,” and ordered that the demonstrators’ rights and freedoms “be protected according to the Constitution.” The decision bars the government from using force or weapons to crack down on the demonstrators.
“Thai Court Limits Crackdown on Protesters“, New York Times, February 19, 2014
The Civil Court echoes a decision last week made by the Constitutional Court to reject a petition by the ruling Pheu Thai Party to outlaw the protests, similarly stating that the actions by the protesters – including the seizing of government buildings, threats against members of the media and most of all the obstructions on election day - are covered by the constitutional right to protest and should be challenged under the criminal law instead, if at all.
It has to be noted that during the anti-government red shirt protests of 2010, the Civil Court upheld the authorities’ right to disperse protesters since they have “caused hardships and hurt people’s freedom and [authorities] have full rights to reclaim the area.”
The reactions from the government side have been rather tame: interim deputy-prime minister Surapong Tovichakchaikul said the ruling will “complicate” the work of the security officials, while the man in charge of overseeing the protests, Chalerm Yubamrung, remained unconcerned, since they had “no plans to disperse the protesters anyways for now” and even thanked the Civil Court for not outlawing the state of emergency, which is still scheduled to end on March 22.
However, other observers see this as another wrench being thrown into the caretaker government’s works in its dealing with the protesters. Human Right Watch’s Sunai Pasuk sums it up:
Emergency Decree is rendered meaningless by Civil Court’s ruling that government can’t disperse & enforce restrictions on protesters.
— Sunai (@sunaibkk) February 19, 2014
Prominent legal analyst Verapat Pariyawong, who earlier called the Constitutional Court “indifferent to the flagrant abuse” by the protesters, goes even so far saying:
The Thai civil court’s order today is one step closer to full scale judicial coup. (…)
2. The constitutional court’s ruling only binds the civil court legally but not factually. That means the civil court is bound by legal interpretation but there is no judicial basis for the civil court to rely on factual determination by the constitutional court. The constitutional court determined the facts at one point in time but facts change by minute, therefore it is judicially impossible and legally illogical for the civil court to disregard the current situation and conveniently rely on the constitutional court’s ruling.
In sum, the civil court basically teamed up with the constitutional court in attempts to intervene in the executive domain, where the court has no accountability, and pave ways for the protestors to claim pseudo-legitimacy to overthrow the government.
Facebook post by Verapat Pariyawong, February 19, 2014
The Civil Court’s ruling has effectively cut off the emergency decree at its knees and the powers of interim Prime Minister Yingluck Shinawatra’s caretaker government are seemingly being more and more marginalized – than it already is by law – by the judiciary and (supposedly) neutral government agencies.
The Election Commission has changed its plans again to complete February 2 elections (more background here), while the National Anti-Corruption Commission is investigating against PM Yingluck herself for “neglect of duty” in the government’s increasingly disastrous rice-pledging scheme.
These developments will also very likely embolden the protesters to further up the ante in their disruptive crusade to bring down the government by – judging by past actions – any means necessary.
The outcome of the February 2 general election in Thailand remains in legal limbo as the Election Commission (EC) has announced the catch-up dates for the constituencies where voting was disrupted by anti-government and anti-election protesters:
The Election Commission is to hold second chance advance voting in 83 constituencies on April 20, followed by general election re-runs at 10,284 polling stations on April 27. (…)
[Election commissioner Somchai Srisutthiyakorn] explained that the new dates were set for April because the meeting had concluded that voting disruption was likely to escalate during the Senate elections, the first day of candidacy registration for which is scheduled on March 4. Voting for senators is set to begin on March 30.
Regarding the 28 southern constituencies which are still without candidates for the general election, Mr Somchai said the EC wants the caretaker government to issue a royal decree to fix a new election date for the 28 constituencies. The EC will write a formal request to be submitted to officials tomorrow, he added.
“General election re-runs set for April“, Bangkok Post, February 11, 2014
Advance voting on January 26 saw widespread blockades in Bangkok and many parts in the South, preventing 2 million people from voting. On election day 10,284 polling stations in 18 provinces (again mostly in the South and in Bangkok) were forced to shut down or didn’t open at all due to disruptions by anti-government protesters. Official figures show that over 20.5 million people did cast their ballot, a low turnout of 47.2 per cent.
The Election Commission already announced before the polling stations opened (at least those that could) that there would be no official results on that day, leaving a lot of questions unanswered and a lot of issues unresolved. Twenty-eight districts in the South are without any candidates – they were prevented from registering – meaning the mandatory quorum of 95 per cent to form parliament cannot be fulfilled.
Since the election, the EC and the caretaker government of Prime Minister Yingluck Shinawatra have clashed on what should happen next and when the catch-up polls can be held in the aforementioned districts. In essence, the government argues that the EC has to hold by-elections as soon as possible and has to ensure that it they go smoothly, since that is its duty. On the other hand the EC is reluctant to hold them, citing legal reasons but also safety concerns as many election officials in the South are still being hindered. It should be noted that the Election Commission also displayed some unwillingness to go through with the February 2 elections.
EC officials justified the late catch-up election date with the hope that the political tensions may have calmed down by then, as anti-government protesters are still rallying in central parts of Bangkok, albeit with almost non-existent attendance at their rally stages during the day.
In the interim, elected senators will have completed their term on March 1 and new ones have to be elected on the March 30. That is eight days after the ongoing state of emergency for Bangkok and some surrounding areas is scheduled to be lifted (March 22) – but it would still cover the senate candidate registry on March 4, which is likely to be disrupted by anti-election mobs, as feared by the EC. Should the protests prolong until the scheduled April election dates, the catch-up polls could still be targeted.
As mentioned, 28 districts in the south were not even able to file candidates for the February 2 elections due to blockades in late December and the EC did not extend the registration period. Instead, the commission still proposes that the caretaker government should issue a new royal decree in order to start the entire election process for the affected constituencies. The government, however, has rejected that idea in the past and according to a legal expert of the ruling Pheu Thai Party, it wouldn’t be legally possible since the royal decree process dictates that after the dissolution of parliament the subsequent election day “must be the same throughout the Kingdom” (see Article 108 of the Constitution). Also, a second royal decree could void the original parliament dissolution decree and thus render the February 2 elections nullified and meaningless.
In a related development, that is exactly what the opposition Democrat Party – which boycotted these elections – is trying to achieve as they have petitioned the Constitutional Court to nullify the whole election since it wasn’t held in one day and it would violate Article 68 of the Constitution with the clear intention to get the interim prime minister Yingluck and the ruling Pheu Thai Party banned. But…
Legally, it is difficult to understand this argument. The election could not be held on one day largely because of the actions of a protest movement to which the Democrat party gives thinly-disguised support.
The use of section 68 is even more baffling. This section outlaws any actions that could threaten the existing democratic system, with the King as head of state. The Democrat argument appears to be that in calling the election at a time of turmoil, and against the advice of the Election Commission, the government put the political system in jeopardy.
“The constitution gives a clear and flexible mechanism to re-run the election where it has been obstructed,” says lawyer Verapat Pariyawong. “It is ironic that the Democrats are citing section 68, as this really ought to be used to deal with the disruptions of the protesters rather than the actions of the government. There are no legal grounds I can see for annulling the election.”
“No grand bargain amid Thailand political crisis“, by Jonathan Head, BBC News, February 10, 2014
The Constitutional Court is scheduled to decide whether or not to accept the petition today (Wednesday). UPDATE: The court rejected.
So the February 2 election remains in limbo for at least another two-and-a-half months, while the caretaker government is facing more and more problems, most recently with rice farmers waiting to be paid subsidies and a related anti-corruption investigation and another one for proposed constitutional amendments. Thailand’s political crisis continues with no clear answers on where it will go and how it will all end.