Appendix VI: To uphold the Constitution of Thailand, axe criminal libel

Asian Human Rights Commission

Note: This article was released as a statement by the Asian Human Rights Commission (AS-38-2005) on 8 April 2005.


In an announcement this week, Prime Minister Thaksin Shinawatra of Thailand stated that the proposed reform of some hundreds of the country’s laws would concentrate on those that violate its 1997 Constitution. Perhaps it can be concluded from this announcement that criminal defamation will be among the laws in breach of both the Constitution and fundamental human rights that will be wiped from Thailand’s statute books.

Among the provisions of the Constitution, article 39 states, “A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise, and make expression by other means.” No better example of a law that violates this provision of the Constitution exists than section 328 of the Penal Code of Thailand. Section 328 allows for criminal defamation, punishable by a fine of up to 200,000 Thai baht (US00) and two years’ imprisonment. This regulation does nothing to encourage enjoyment of liberty to express an opinion. On the contrary, it does everything to stifle it.

Criminal libel regulations have been removed from the statute books of civilised societies, where it has been recognised that a properly framed and restricted civil defamation law is sufficient. However, in Thailand not only is criminal defamation still to be found on the books, it is also used routinely by powerful persons to intimidate and silence critics. The prime minister, by proxy, is among them, as his family business Shin Corp is engaged in a suit against media-reform campaigner Supinya Klangnarong.

Times have not been good for persons in Thailand hoping to exercise their article 39 rights. In a recent report to the UN Human Rights Committee, the Asian Legal Resource Centre, sister organisation of the AHRC, expressed deep concern over the persistent concentration of broadcast media ownership there. Community radio stations that were started under the new Constitution have in some instances been shut and others threatened with closure on the grounds they are “illegal”, even though it is the government that has failed to introduce a licensing regime as required. A new media monopoly is also emerging between the commercial and government sectors, as concessions issued to businesses close to senior politicians, most notably the prime minister himself, defeat the purpose of constitutional reforms. Shin Corp now totally dominates all sectors of the commercial media in Thailand, with 24 companies running telecommunications, television, radio, internet, satellite and other communications throughout the country, and even into neighbouring Cambodia, Laos and Burma.

Threats against journalists and independent media have also increased. Since the 2003 ‘war on drugs’, many journalists in Thailand have narrowed their reporting in response to overt and covert government intimidation. Reporters who criticised the government campaign at that time were accused of being in the payment of drug dealers. Editors of newspapers and magazines have also expressed fears over the loss of millions of dollars of advertising fees from companies connected to the government, particularly Shin Corp. As a consequence, self-censorship is being practiced more widely. Broadcast media programme managers, producers and hosts are reported threatened against critical reporting of the government, by way of warnings in person and writing to be more ‘cooperative’. During late 2004, executives of radio stations were reportedly told not to say anything negative about the escalating violence in the south. At least one radio host was taken off the air after the Supreme Command, which owns the frequency, ordered that ‘extreme caution’ be exercised in reporting security and political issues. Numerous warnings were also issued, and raids conducted, in relation to distribution of video footage of the killings in Narathiwat in October 2004.

Under these circumstances, it is vital that proposed legal reforms address the antiquated laws that violate the principle of free expression established both under the Constitution of Thailand and the International Covenant on Civil and Political Rights, to which Thailand is a party. Foremost among these is the criminal defamation law, which should be abolished without further ado, and the existing civil defamation law reviewed to bring it into line with international standards, in particular, to make claims for compensation proportionate to the harm done, and not punitive. Many other changes will yet be needed to reassure people in Thailand that they can speak, broadcast and publish freely, but the removal of this law will be an important step that would earn the government much goodwill at home and abroad. Failure to remove it at a time that so many other laws will be going under the axe may rightly raise many questions over the government’s actual intentions.

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