This is part XXX of “Tongue-Thai’ed!”, an ongoing series where we collect the most baffling, ridiculous, confusing, outrageous and appalling quotes from Thai politicians and other public figures. Check out all past entries here.
It is hard to deny that the human rights situation in Thailand has sharply deteriorated since last year’s coup which brought in the authoritative military government and its repressive measures to curtail dissent and criticism against their rule.
We have extensively reported on heavy media censorship, hundreds of arbitrary detentions with some allegations of torture, the relentless prosecution of lèse majesté suspects at home and abroad (two young theater activists have been recently sentenced to jail), the junta’s increased efforts to spy online and its intolerance for any kind of protest or mere criticism, especially from abroad. And all that for the junta’s often-claimed maintenance of “peace and order”, while the country still is under martial law. Whoever isn’t keeping calm is being “invited” for “attitude adjustment”.
To say the situation is abysmal would be an understatement. Human Rights Watch said in its annual report that Thailand is in “free fall” and Amnesty International stated that the junta’s actions are creating “a climate of fear”. Meanwhile, the biggest worry of Thailand’s own National Human Rights Committee (NHRC) is not the human rights situation itself – even when student activists are being harassed almost right in front of its chairperson – or an impending major international downgrade, but rather they are more concerned about their own existence amidst proposals to merge it together with the Ombudsman’s Office.
With all that in mind, the Thai military junta’s foreign minister General Thanasak Patimaprakorn went to Geneva earlier this week to attend the annual regular session of the United Nations Human Rights Council. Granted, its current member states are also not all what can be considered shining beacons of human rights, but nevertheless Gen. Thanasak didn’t have an easy task representing Thailand (which is not a council member at the moment) and its situation to the world.
Thus, his opening statement (which you can see a video of here and read the transcript here) was more on the safe side with commitments to contribute to the work of the UN Human Rights Council. It would have been a rather unremarkably insignificant speech weren’t it for these two excerpts:
Human rights exercised in the most extreme manner may come at a high price, especially in unstable or deeply divided societies. It may even lead such societies to the brink of collapse. And in such situations, it is the most vulnerable in societies who suffer the most.
What in the world is the “most extreme manner” of human rights, anyways?! Wouldn’t the most extreme form of human rights be that actually ALL people can enjoy the same level of respect, dignity and legal fairness, regardless whoever they are?! And how could that bring a society of collapse?!
It gets even better, when he said a couple of moments later:
Freedom of expression without responsibility, without respect for the rights of others, without respect for differences in faiths and beliefs, without recognising cultural diversity, can lead to division, and often, to conflict and hatred. Such is the prevailing situation of our world today. So we must all ask ourselves what we could and should do about it.
Yes, those are all valid points, wouldn’t it be for the pot calling the kettle back.
Thailand could, for example, introduce an official language policy that promotes the cultural diversity of its ethnic minorities, instead of just emphasizing the similarities.
Or it could also investigate a protest of roughly 1,000 Buddhists against the construction of a mosque in the Northern province of Nan earlier this week, while everybody’s claiming not be against it for religious reasons, but also showing concern about “noise pollution”, “different [read: incompatible] life styles” and potential “unrest and violence” once the mosque is built.
Or what about all those times when Thai junta Prime Minister General Prayuth Chan-ocha lashed out against the media for still being too critical again and again or otherwise be utterly cantankerous and highly sardonic towards members of the press (if the junta is not censoring it, of course)? And what about the things that the junta says in general?
You see, it is not “extreme” human rights or freedom of expression that is the problem here, it is the blatant disregard of it that brings societies to the brink. The “extreme” version is to have a population that is not afraid of prosecution or any invisible lines for whatever they are saying and where the responsibility lies with society as a whole and not few powerful ones dictating it.
But then again, what isn’t too “extreme” for the Thai military junta?
Dozens of Thailand’s lawmakers have employed their family members with state money and see nothing wrong with that, while they claim to eradicate exactly that kind of behavior out of Thai politics.
The Thai military junta pledged to do everything better and cleaner than their politician counterparts when they executed their hostile takeover of powers in a coup last year. The mindset of them and their allies is that Thai politics is so tainted with corruption it is incapable of redeeming itself, hence the indefinite suspension of electoral democracy and an almost crusade-like campaign to “eradicate” corruption from Thai politics. In order to achieve this, the junta has created fully appointed government bodies that have been busy “reforming” the country and also claim to adhere to a very high ethical standard.
And then this happens:
A report published by the investigative newsite Isra News revealed that 57 lawmakers in the 220-member National Legislative Assembly (NLA) have hired their own spouses, siblings, children, and cousins as staff.
Salaries for the aides range from 15,000 – 24,000 baht per month. The positions awarded to relatives include legislative specialists, who must hold a bachelor’s degree or higher, experts, who need at least three years of relevant work experience, and assistants, who must be at least 18 years old.
“Thai Government Defends Hiring Relatives“, Khaosod English, February 28, 2015
For example, Nipon Narapitakkul has appointed his wife, daughter and son to help with his work while Adm Taratorn Kajitsuwan appointed his wife and daughter.
As the regulation states that one person can take only one position at a time, Adm Taratorn appointed his wife three times to different positions, with the latest one as personal specialist, effective on Jan 1, 2015.
“57 lawmakers name kin as aides“, Bangkok Post, February 27, 2015
This is rather embarrassing for these people since they are supposed to be much, much better than your regular (elected) politicians. In fact, it is the same political camp – though a different government body (the Constitutional Drafting Committee) – that has recently floated the proposal to have an “indirectly elected” Senate that is essentially nothing but a fully appointed one, as we have deconstructed last week.
It is also the same political camp that have been vocally against the constitutional amendments by the government of then-Prime Minister Yingluck Shinawatra (ironically the younger sister of former Premier Thaksin) that would have not only made the Senate a fully elected one, but also done away with the one term-limits and (surprise!) direct relatives of politicians to run for office – a regulation previously set by the 2007 Constitution after the previous military coup of 2006! The opponents were that vocal, so much so that they dragged the case to the Constitutional Court and won.
So, how are the current military government and its lawmakers reacting? Like nothing has happened apparently:
National Legislative Assembly President Pornpetch Wichitcholchai said the regulations did not prohibit NLA members from appointing their spouses and children as their helpers, and thus making them eligible for salaries from the state.
When asked whether the practice was appropriate, Pornpetch said the NLA simply wanted to have helpers whom they could trust and the practice has been done earlier.
“President says NLA members can hire spouses, children as helpers“, The Nation, February 27, 2015
Today [Saturday] a member of the ruling military junta also came out to defend the practice.
“I share the same view as Mr. Pornpetch. They didn’t break any laws,” said army chief and junta member Gen. Udomdet Sitabutr. “Your relatives have knowledge and expertise, and be qualified for the jobs. This is personal matter, and it is in accordance with the regulations about what is prohibited and what is not prohibited.”
“Thai Government Defends Hiring Relatives“, Khaosod English, February 28, 2015
And of course, the junta leader and Prime Minister also chimed in on this as well, saying that
พล.อ.ประยุทธ์ จันทร์โอชา นายกรัฐมนตรี (…) ว่า (…) อย่าไปพันกันกับเรื่องสภาผัว-สภาเมีย เพราะมันคนละสมัย ครั้งนั้นก็บอกว่ากฎหมายไม่ได้ห้าม ครั้งนี้ก็เหมือนกัน (…)
Prime Minister General Prayuth Chan-ocha (…) said that (…) this shouldn’t be confused for the house-wife Senate [as mentioned above] because that was at a different time and back then it wasn’t illegal either, as it is this time (…).
มีเหตุผลความจำเป็นหรือไม่ หรืออาจจะเขียนกฎหมายในรัฐธรรมนูญหรือระเบียบเพื่อระบุว่ากลไกเหล่านี้จะต้องไม่มีครอบครัวซึ่งจะเขียนได้หรือไม่ตนก็ไม่ทราบ (…) เพราะทุกคนก็ต้องการประชาธิปไตยอีกทั้งเป็นเรื่องส่วนบุคคลด้วย เรื่องนี้คงต้องพูดด้วยกฎหมาย แต่ถ้าถามตนว่าถูกหรือไม่ ตนไม่ขอตอบ
“Whether or not it is necessary to write in the constitution or into law to specify that there can be no family members [being employed] I don’t know, (…) because everybody needs democracy, but it is also a personal matter. This matter has to be addressed by law but if you ask me if it’s right or wrong, I prefer not to answer.
“นายกฯยันสนช.ตั้งลูก เมีย ญาติเป็นที่ปรึกษาได้ ไม่ผิดกม.“, Krungthep Turakij, March 1, 2015
The problem in this obvious case of nepotism is not so much whether or not it is illegal (it isn’t, but then again it’s the junta currently making up their own new rules), but rather that it is highly unethical, especially because this government and its fully-appointed bodies claims to adhere itself to a much higher ethical standard.
The Constitutional Drafting Committee are continuing to re-write the political rule book for a post-coup Thailand. But, like with all the military junta’s government bodies, the claim to “reform” and bring “true democracy” is questionable, as the most recent proposals for an
unelected sorry, “indirectly elected” Senate shows.
One of the key elements of Thailand’s military government is the Constitutional Draft Committee (CDC), which is tasked to, well, write a new constitution that lays the legal groundwork for a new elected government (when we actually get there is another matter), the first one since the military coup last May that has
temporarily indefinitely suspended electoral democracy. However, just like all other government bodies of the Thai junta – such as the National Legislative Assembly (NLA), the rubber-stamping ersatz-parliament, and the National Reform Council (NRC), a rather exclusive group suggesting wide-ranging reforms – the CDC is fully-appointed and of questionable political bias.
Since its nomination in November, the 36-member strong committee has 120 days to accomplish the herculean task to not only write a new charter, but also to have one that (appears to at least) curtail what they call “parliamentarian dictatorship”, which they and their allies accuse the past successfully elected governments associated to former Prime Minister Thaksin Shinawatra of, including the last one of his sister Yingluck Shinawatra before it got toppled by the military that is running the country now.
Among the many changes the CDC is currently proposing is the make-up of the Senate, the Upper House next to the House of Representatives. In pre-2014 coup Thailand (and thus post-2006 coup), the 150-member Senate was half-elected and half-appointed. But now, the CDC is suggesting this model instead:
Thailand’s new 200-member Senate (…) will be chosen from pools of candidates, including former premiers, ex-military leaders and representatives of different professions, another committee spokesman, Lertrat Ratanavanich, said Wednesday. They can only serve one six-year term.
“Thai constitution drafters say Senate to be unelected“, Associated Press, February 26, 2015
This doesn’t sound as straightforward as the previous system, so how will they be exactly chosen?
The Senate will consist of 200 members, half of whom will be chosen by the council of “experts,” which Bowornsak described as “a diverse group of individuals with expertise and morality about politics, national administration, the judicial system, society, ethnology, and folk wisdom.”
It remains unclear how the council of experts will be chosen.
The other Senators – also appointed – will be chosen from a pool of former high-level politicians and bureaucrats such as prime ministers, military commanders, parliament speakers, judicial leaders, and representatives from other civic organizations.
“Junta’s Charter Drafter Clarifies ‘Unelected’ Senate“, Khaosod English, February 26, 2015
In case you’re wondering how this “pool” of candidates is being set up, here’s the complete list:
Senators will be selected from among five categories of people: former prime ministers, former Supreme Court presidents and former parliament presidents; former high-ranking state officials such as military leaders and permanent secretaries; heads of legally registered professional organisations; people’s organisations such as labour unions, agricultural co-operatives and academics; and other groups such as lawyers, environmental activists, poverty networks and healthcare experts.
Senators from the first four groups will be selected from among themselves, while those from the fifth will be nominated by a screening committee and selected by the National People’s Assembly and executives and members of local administrative bodies.
“CDC agrees to indirect Senate pick“, Bangkok Post, February 26, 2015
So basically a bunch of yet-to-be-defined committees supposedly representing a broad spectrum of the population would be tasked to choose the candidates for the Senate, making it practically fully appointed.
However, the chairman of the CDC, Bowornsak Uwanno (pictured above), does not agree with this notion:
“Certain newspapers and TV channels have identified the new Senate as unelected,” CDC chairman Bowornsak Uwanno said at a press conference today. “It’s not lovely. It’s an inaccurate presentation of news.” (…)
However, the CDC chairman stressed today that elected members of local administrative organizations will be included in the process of selecting senators, because they will be responsible from choosing 100 senators from a list of 200 candidates approved by the panel of “experts.”
“Therefore, accusations that the new Senate is unelected are false,” Bowornsak said.
He also told reporters that some foreign countries have similar parliamentary models, citing France, though he failed to point out that French senators are indirectly elected by a “super-electorate” of elected local and regional officials, whose options are not screened by any unelected panel of professionals.
“Junta’s Charter Drafter Clarifies ‘Unelected’ Senate“, Khaosod English, February 26, 2015
OK, so he is saying that it is still a democratic process because the people are voting the local officials, who then, alongside other officials, are going to pick 100 senators pre-selected from a yet-to-be-defined-but-very-likely-appointed “expert” vetting panel, which still leaves the other 100 senators to be chosen in a yet-to-be-defined-but-also-very-likely-appointed fashion.
And how large is that percentage of elected local officials who would be picking the senators? It doesn’t matter, because the military junta has suspended local elections anyways and replaced outgoing officials with – guess what? – appointed ones!
To say that CDC chairman Bowornsak’s argument that the Senate wouldn’t be unelected is shaky at best and at worst rather disingenuous, which makes the description of an “indirectly elected” upper House one hell of a political euphemism.
There’s a certain irony here when you compare this to the efforts during the Yingluck administration to amend the constitution to make the Senate fully-elected again. While the underlying motivations could still be questioned, the principle of a fully-elected Senate was enough of a reason for the Constitutional Court, in what many observers say a politically charged verdict, to outlaw these proposed amendments. Even worse, the National Anti-Corruption Commission (NACC) – which has recently impeached the already toppled former PM Yingluck – was going after most of the lawmakers involved and is thinking about doing it again.
And now (arguably) the same similarly politically-aligned camp that was against the previous amendments and is now running the country (one striking example is Rosana Tositrakul, back then an appointed senator who petitioned the Constitutional Court and now, surprise, a member of the National Reform Council), is now floating the proposal for a Senate that really isn’t elected at all.
In the last part of our Siam Voices series examining the new cyber laws, we chronicle the criticism against and the defense for the controversial bills – and what’s behind the military junta’s motivation to push these into law.
In the past two weeks we have analyzed the cyber law bills for its potential impact on policies, censorship and also business. More often than not we found that the flaws outweigh the benefits and, if signed into law without large-scale amendments will have very serious implications of the civil liberties, free speech, personal privacy and even e-commerce of every Thai internet user – except for those in charge of the law.
So it is no wonder why there has been a significant amount of criticism against the cyber bills. Here’s just a small selection:
“Proposed cyber-security legislation in Thailand represents a clear and present danger to media freedoms,” said Shawn Crispin, CPJ’s senior Southeast Asia representative. “If Prime Minister Prayuth is sincere about returning the country to democracy, he should see that Parliament scraps this bill, which is reminiscent of a police state, and instead enact laws that uphold online freedoms.”
”Cyber security bill threatens media freedom in Thailand”, Committee to Protect Journalists, January 20, 2015
“The consumers will feel that they are being watched when they go online,” said Arthit Suriyawongkul, an expert on cyber and computer law from the Thai Netizen Network. (…)
“They’ll feel unsure about sharing their private information fearing that officials could abuse their privacy,” Mr Arthit said. “If consumers are not confident then online businesses will suffer.”
“Fears over Thailand’s online freedom, as junta drives towards digital economy”, Channel NewsAsia, January 29, 2015
Six civil organizations [Thai Netizen Network, FTA Watch, Foundation for Community Education Media (FCEM), Green World Foundation, People’s Media Development Institute, and Thailand Association for the Blind (TAB)] denounced the eight Digital Economy bills recently approved by the junta, saying they are national security bills in disguise and that the bill will pave the way for a state monopoly of the telecommunication business.
“Thai junta’s Digital Economy bills are national security bills in disguise: rights groups”, Prachatai English, January 14, 2015
Also, almost 22,000 people have signed an online-petition against the bills, calling for them to be stopped.
At the moment the right cyber bills are in the military junta’s all-appointed ersatz-parliament, the National Legislative Assembly (NLA) – dominated by active and former military officers – and are awaiting deliberation. It is not expected that the rubber-stamping body will be making any fundamental changes to the drafts.
Nevertheless, the military government’s response to the criticism is – like with any other criticism out there – aggravated and irritated. Prime Minister General Prayuth Chan-ocha responded in his usual style:
“We will develop software for goods and services. If there is private [online] content, no one would mess with it. But if [some people] commit crimes [such as lèse majesté], we have to investigate the matter. The accusation that the government is not taking care of Article 112 [of the Criminal Code, known as the lèse majesté law] is because those lèse majesté websites operate from overseas.
“Junta leader admits controversial digital economy bills target lèse majesté”, Prachatai English, January 22, 2015
And when pressed by another reporter…
“Today, have I ever restricted anyone’s rights? Have I ever done that?” asked Gen. Prayuth, who imposed martial law after leading a military coup on 22 May 2014, and has banned any political protests or public criticism of his regime.
The reporter pressed Gen. Prayuth to justify the sweeping nature of the bill, prompting Gen. Prayuth to lose his temper and shout, “I don’t have to answer why! I will pass it. You have a problem with that? Otherwise, why the hell am I the Prime Minister? Why am I the Prime Minister?”
Gen. Prayuth then walked away from the reporters and said angrily, “I’m in a very bad mood.”
“Thai Junta Leader Deflects Concern Over Mass Surveillance Bill”, Khaosod English, January 21, 2015
This incident at a small activist symposium shows how much the military government is trying to claim its narrative over the bills:
Also present at the Bangkok symposium was an Army Lieutenant who arrived uninvited with three other soldiers in an armoured Humvee and “asked” to be allowed to defend the draft bills. (…)
Army Lieutenant Kittiphob Tiensiriwong (…) urged the 35-strong crowd to accept the bills, saying that the NLA had good intentions but acknowledging that the bills must have more positive than negative aspects.
When asked to explain, Kittiphob, who did not remove his footwear like the other participants, said there were times when speedy access to the Internet was needed.
He said the bills aimed “to control those who think unlike others – those who have their own mind and are not considering the thinking of the collective.”
“Calls to hold cyber bills until democracy is restored”, The Nation, February 2, 2015
While this should come as no surprise to anyone, that right there is actual main motivation of the military junta for the cyber law bills and for the way it was written! Ever since the military coup in last May, one of the key elements of its tight grip is the massive monitoring of the media, including online, to curtail any signs of criticism and dissent.
Even without the cyber laws and thanks to the still ongoing martial law, the military junta has already taken steps for wide-spread online surveillance as we have previously reported, as well as ordering Thai internet service providers to preemptively block websites. Since then, there have been further developments that are in line with the authorities’ efforts to scrutinize online traffic: the development of software to intercept secured SSL-connections, mandatory sim-card registrations (in a country that predominantly uses their phones with pre-paid subscriptions) as well as for free wifi and the reported creation of a “cyber warfare” unit by the Thai military.
The desire by Thai authorities to control the flow of information online is not new and was evident in past governments (see here, here, here and here), but under the authoritarian rule of the military junta, it can operate with no checks and balances – and thus also legalize its unprecedented powers to monitor, spy, filter, censor and collect anything online.
The main purpose of an army is to protect the country from external threats, but history has shown that the Thai army has mainly acted against the Thai people. Now with the new online surveillance measures and the cyber law bills, the Thai military and the junta is expanding its fields of operations (or rather battlespace) to the cyberspace – and thus not against an external force, but again against every Thai internet user.
THAILAND’S NEW CYBER LAWS: Part 1: Introduction – Part 2: Changes to Computer Crime Act – Part 3: Far-reaching and all-encompassing cyber security – Part 4: Bad for business, too! – Part 5: Admin error
Thailand’s courts are continuing to jail people under the lèse majesté law, as two young students have been sentenced to two and a half years in prison for allegedly insulting the monarchy in a theater play. The conviction shows yet again the draconian law is still thriving and even more so under the current military junta.
Dozens of students outside the Criminal Court in Bangkok began to sing when Patiwat “Bank” Saraiyaem (23 years old) and Porntip “Golf” Mankong (26) were taken out of the building (see video below) in shackles and back into their prisons after the judges handed down their sentences: five years in prison, reduced to two and a half. Both students were found guilty of allegedly violating the lèse majesté law by seemingly insulting the monarchy with a theater production.
The draconian lèse majesté law, Article 112 of the Criminal Code, states that it is a criminal offense to “defame, insult or threaten” the king, queen, heir to the throne or regent. If convicted, the accused can face up to 15 years in prison. The law also prohibits media and anyone else from citing or quoting the details of the offense, as this also constitutes a violation of the law itself.
Use (or rather abuse) of the law has been constantly on the rise for most of the past decade, but has seen a sharp increase since the military coup last May. One of the first orders by the military junta was to transfer jurisdiction of such cases to a military court, as martial law remains since the coup.
Patiwat and Porntip – respectively, a student until his suspension at Khon Kaen University because of the trial, and a recent graduate – were part of the “Prakai Fai” (literally Sparking Fire) activist theater group and staged the play “The Wolf’s Bride” (“เจ้าสาวหมาป่า” in Thai) at Bangkok’s Thammasat University in 2013, which was the scene of the student-led pro-democracy rallies and its bloody military crackdown in 1973 and 1976.
The play itself is set in a fictional kingdom about a fictional king and his fictional advisor. Nevertheless, its contents (which we cannot elaborate further upon for the aforementioned reasons), were still deemed enough to defame the actual Thai monarchy. Patiwat (who acted in the play) and Porntip (who primarily co-ordinated the production) were arrested last August, while many others of the group have fled Thailand fearing they would be targeted as well.
The fact that a work of fiction is at the center of the offense shows not only the problematic flexible interpretation of the law by the authorities of what constitutes lèse majesté and what doesn’t, it also bears some similarities of the case of Somyot Prueksakasemsuk. The veteran labor activist was sentenced to 11 years for merely editing political essays – that were written by somebody else – which were at best vague allusions to the royal family. He has been incarcerated (including his detention before the trial) since April 2011 and has been denied bail 16 times so far.
The two accused students have been denied bail six times as well, as have most other lèse majesté suspects. Both defendants have previously pleaded guilty, which doesn’t necessarily mean they acknowledge the crime, as this is a standard procedure to reduce the sentence. Also, like many other sentenced lèse majesté prisoners, it seems unlikely that the two will be appealing the verdict, which would leave a royal pardon the only legal avenue to shorten the prison term.
The judges reasoned their verdict and sentencing as following:
“Although the defendants have never committed previous crimes, their action – performing the play in an auditorium at Thammasat University – was an act of defamation and insult in front of numerous people,” said a judge at Ratchada Criminal Court in Bangkok. “Moreover, it was disseminated on many websites, causing damage to the monarchy, which is revered by all Thais. Such action is a grave crime that warrants no suspension of the punishment.”
“Theater Activists Jailed Over Satirical Play About Monarchy“, Khaosod English, February 23, 2015
The judge’s assumption that the offenses in that theater play were insulting to the monarchy despite being “revered by all Thais”, underlines “the contradictory task of trying to argue how inflammatory the slanderous remarks are (…) while at the same time maintaining that the words have no such effect on them,” as academic and lèse majesté expert David Streckfuss wrote once (read here).
In fact, this contradiction has reached new (and absurd, if it wasn’t so serious) lows under the current military government, which is hunting for lèse majesté suspects and dissidents alike with vigorous zeal – especially an estimated 40 suspects that have fled abroad.
A change for the better in Thailand is not in sight with the authoritarian military junta at the helm. But dissent is still alive, which is currently mostly upheld by student activists and public displays of resistance still do occur (as seen recently last Valentine’s Day), only to be immediately shut down by the skittish authorities.
Porntip’s and Patiwat’s family members broke down in tears after the verdict was read out, as the dozens of supporters were waiting downstairs at the exit of the Criminal Court in Bangkok and started singing “The Faith Of Starlight” (“แสงดาวแห่งศรัทธา” in Thai), a song written by Thai leftist intellectual Chit Phumisak and popularized as a protest anthem by the pro-democracy student activists in the 1970s, which ended with the words:
ขอเยาะเย้ย ทุกข์ยากขวากหนามลำเค็ญ / คนยังคง ยืนเด่นโดยท้าทาย / แม้นผืนฟ้า มืดดับเดือนลับมลาย / ดาวยังพราย ศรัทธาเย้ยฟ้าดิน / ดาวยังพราย อยู่จนฟ้ารุ่งราง
May I mock the miserable thorns of poverty / the people are still standing defiantly / and even the skies turn dark and the moon vanishes forever / the stars are still shining, the faith of the starlight / the stars are still shining, until heaven is obscured
As the choir kept chanting, the pair were put in a transport van. Patiwat “Bank” Saraiyaem and Porntip “Golf” Mankong – the two thespians, now prisoners – calmly and defiantly flashed the three-finger-salute from “The Hunger Games” movies (and declared illegal by the military junta) as the van darted out of the garage to drive them to their prisons.
In the fourth part of our series examining Thailand’s new and controversial cyber laws, we look at the impact it can have on business – and it doesn’t necessarily look very profitable.
In the last couple of instalments of this series, we have highlighted the pitfalls, flaws and loopholes of some of the new proposed cyber laws of the Thai military government. Obviously, since this blog mainly focusses on politics and media freedom, we have so far examined the bills with regards to cyber security, surveillance and its implications on censorship, civil liberties and privacy.
However, for some people and entities these aspects are simply not on the top of their priority list – and we’re not talking about the junta this time! No, this time we mean the economic sector. And it is often said from that direction that an effective, stable political situation is preferable – cynics would argue that democratic values are not economic factors.
The main selling point by the current military junta of the new cyber laws is to lay out the legal groundwork to improve the conditions for Thailand’s ”digital economy” and thus position the country more competitively, especially with the ASEAN Economic Community lurking just around the corner. Another objective is to integrate governance and state business better in to the ”digital economy” as well.
And there are some very good reasons to focus on that: With an internet penetration of 35 per cent (roughly 28.3m people) and an even higher percentage of mobile phone users (125 per cent or 84m people, in fact more than the actual Thai population!), there are a lot of opportunities to be made digitally (source and more stats here).
But when you take a closer look at the eight different cyber law bills, there are many passages that also potentially can spell bad business as well. As usual, the devil is in the details.
Let’s start off with the Personal Data Protection bill (full translation available here). As the name of the bill implies, it is initially set up to (supposedly) protect personal data of every Thai online user and for that reason a committee overseeing that would also include representatives of three consumer protection NGOs on board. According to Article 7 of the new bill however, they are now gone and have been replaced by the Secretary of the National Security Council instead.
And it doesn’t get any better as we encounter yet another example of a typical problem when it comes to Thai legalese:
The draft bill also imposes significant legal burdens on foreign tech companies as responsibility falls solely on the data controller. Such companies would also run a greater risk of being subject to legal action, said Dhiraphol Suwanprateep, a partner at Baker & McKenzie. (…)
He said the bill posed a challenge for the government’s digital economy policy, as there is no clear distinction between “personal data processor” and “personal data controller”. The draft only identifies a data controller as the person with the authority to control and manage his or her personal information.
“Data processor” typically refers to a third party that processes personal data on behalf of a data controller, Mr Dhiraphol said. In the absence of such identification in the bill, data processors such as internet service providers, web hosting providers, cloud service providers and content hosting platforms could be broadly interpreted as a data controller. (…)
“If there is no separate definition between data controllers and data processors, it will be difficult to enforce the law, as most technology businesses are dwelling on cloud-based services which are physically located outside the country,” Mr Dhiraphol said.
“This will not attract foreign investors into Thailand, as stringent legislation would rather hamper businesses’ innovative technology instead of promoting Thailand as a digital economy hub for the Asean Economic Community.”
“Legal expert shreds data security bill“, Bangkok Post, January 26, 2015
Another passage at Article 25 would affect a lot of different sectors as well:
Section 25: Any collection of personal data pertaining to ethnicity, race, political opinions, doctrinal, religious or philosophical beliefs, sexual behaviour, criminal records, health records, or of any data which may upset another person’s or the people’s feelings as prescribed by the Committee, without the consent of the Data Owner or the person(s) concerned, is prohibited, (…)
Following the words of the law, it would make it very difficult to use somebody’s yet-to-be-defined “personal information” for any kind of work without their permission. For example, journalists wouldn’t be able to use these sources for any critical investigation or marketing campaigns and wouldn’t be able to implement social media posts (unless they write some crafty terms of services that nobody reads anyways).
Another crucial point of contention for many critics is the upcoming allocation of new frequency spectrum that would bring 4G mobile connection to Thailand (and hopefully soon and not as drawn-out as the farcical 3G auction was). However…
It also empowers the [Digital Economy Commission chaired by the Prime Minister] to order any private telecommunications operator to act or refraining from acting in any way and also compels companies to provide information on request as well as hand over executives for questioning.
The portfolio of digital economy laws also has a new frequency act that gives the final say in spectrum allocation to the Digital Economy Commission and emancipates the telecommunications regulator, leaving it in charge only of commercial spectrum and imposing strict budget controls on the former autonomous agency. (…)
But while on the one hand [the government] are signalling compromise with the aforementioned committee, the junta are also threatening that 4G will be delayed unless the laws are passed quickly, and of course everyone loves more bandwidth.
“Thai spying law controversy rages on“, Telecomasia.net, February 6, 2015
And generally one of the biggest problems is that the cyber law bills are creating a bureaucratic monster:
Paiboon Amornpinyokait, an expert on cyber and computer law, said (…) they gave too much power to the new Ministry of Digital Economy and Society by allowing it to oversee too many areas.
They include areas currently under the jurisdiction of the National Broadcasting and Telecommunications Commission (NBTC) Bill, the Cyber Security Bill, the New Computer Crime Bill, the Personal Data Protection Bill, the Digital Economy Promotion Bill, and the Digital Economy Development Fund Bill.
Paiboon said the bills would result in too much centralised power and will give too much authority to officials or authorities, which could easily lead to abuse of power.
“Digital economy bills ‘need to be amended’“, The Nation, January 19, 2015
These passages and many other legislative pitfalls that we haven’t covered yet show that this is not only a matter of human rights, free speech and personal privacy, but it also could have potentially serious implications for the economy and scare away potential foreign investors.
Just as the military junta tries to fix the economy and could be doing more harm than good, these batch of cyber bills could have the same effect as well if they’re not being thoroughly amended or rejected by the junta’s ersatz-parliament. As we explain in the next and last past of our series, there is definitely not a lack of criticism from all sides but a severe lack of justification from Thailand’s military junta.
THAILAND’S NEW CYBER LAWS: Part 1: Introduction – Part 2: Changes to Computer Crime Act – Part 3: Far-reaching and all-encompassing cyber security – Part 4: Bad for business, too! – Part 5: Admin error
The Foreign Correspondent’s Club of Thailand (FCCT) has just announced this upcoming panel discussion in March.
The Future of Politics in Thailand
7pm, Wednesday March 11, 2015Non-members: 350 Baht entry; Members: Free entry
What kind if future does the military’s reform programme promise for Thailand? And will there be space for existing political parties in this new future?
For the first time since the coup, the FCCT is pleased to host a high-level debate, by inviting some of the country’s most experienced politicians to the club.
Alongkorn Polabutr, senior member of the National Reform Council and former deputy leader, Democrat Party
Chaturon Chaiseng, former Education Minister, Pheu Thai Party
Kasit Piromya, former Foreign Minister, Democrat Party
Phongthep Thepkanjana, Former Deputy Prime Minister, Pheu Thai Party
This really looks interesting because this indeed an illustrious high-profile panel. A couple of notes about the panelists:
Alongkorn Polabutr was considered by many as the prospect to reform and revive the ailing “Democrat” Party, as he was the most vocal advocate calling on his fellow party members to stop blaming vote-buying for the streak of election losses. However, in late 2013 – during the anti-Yingluck government protests and weeks away from snap-elections – he was practically demoted from his position as deputy leader of the “Democrat” Party. This likely contributed to his departure from the party last November but also, much to the dismay of many progressive supporters, to his joining the junta-installed and fully-appointed National Reform Council. Being a NRC member alone makes him a high-profile panelist.
Chaturon Chaiseng is regarded as stalwart from the era of former Prime Minister Thaksin Shinawatra, as he filled many positions in his cabinet: Prime Minister’s Office Minister (2001–02), Justice Minister (2002), Deputy Prime Minister (2002–05), and Minister of Education (2005–06). After Thaksin’s government was toppled by the 2006 military coup, his Thai Rak Thai Party was subsequently disbanded and most of its members, including Chaturon, banned from politics for five years. Chaturon returned to the Yingluck government in mid-2013 as Education Minister, but was putsched again in May 2014. He was one of the few to defy the junta’s mass summons and appeared at the FCCT to give a press conference, only for the military to barge in, arrest him on the spot and bring him in front of a military court. He’s currently out on bail and returns to the very same spot at the FCCT next month.
Kasit Piromya. It is often said that the diplomatic sensibilities of the former ambassador to Germany and Japan (especially by this author) are more akin to a wrecking ball. Especially during his tenure as Foreign Minister under Prime Minister Abhisit Vejjajiva (2009-11), he seemed to be solely focused on the fugitive, self-exiled Prime Minister Thaksin. In any case, if circumstances are right, he can be highly entertaining to watch.
Phongthep Thepkanjana is another ex-cabinet member of Thaksin Shinawatra (Minister of Justice, Minister of Energy, Minister to the Prime Minister’s Office – see a pattern?) and was Chaturon’s predecessor as Education Minister in Yingluck’s cabinet.
In any case, it should also be interesting to see, considering at least 50 per cent of the panel, if the Thai military will actually allow the event to take place or at least send a representative with in a humvee to “defend” the government’s point of view.