Translated from Original By Supreme Court Judge Yindee Watcharapong Torsuwan: Lese Majesty Law 112 / Ar Kong Case
( Last edit 2012-02-17 )
Less than two weeks after the 84th birthday anniversary of HM the King Bhumipol of Thailand, US Ambassador to Thailand made a negative comment against Thai court ruling of Lese Majesty cases, expressing worry about the law and the penalties, in favour of anti-royalist defendants. This is quite a historical and arrogant comment made by any US Ambassador to Thailand and exasperate Thai people. A lot of people are surprised what is the ambassador's actual motif. This picture below may be the clue.
US Ambassador was present at the 1 million USD donation of Chevron (Thailand) to PM Yingluck's government organization to relieve flood suffering. The money from Chevron is likely to be some sort of bribery to anti-royalist red-shirt movement instead of going to million victims of the flood.
As well as other donations from Thais and foreigners alike, US government's relief fund never goes through PM Yingluck government because of a lot of corruption and mismanagement of the government flood relief organization under PM Yingluck. Also lots of rescue baggages were unnecesarily delayed because of redirection to the government for relabel with Thaksin posters instead of the actual sponsors or anonymity.
US Ambassador to Thailand, Kristie Kenney's daringly improper comments and presence at the Chevron donation, just faciliates conspiracy between Chevron and Yingluck, puppet of Thaksin, the traitor of Thailand and abolitionist of the Royal institution, to return for huge petroleum resouces in the Thai gulf, sharing with Hunsen. Below is counter comments from the Spokesman of Thai Court of Justice Spokesman and a Thai senior Ex-Judge in Supreme Court.
"Non-Stoical Ar Kong" An Article (Original in Thai) By Court of Justice Spokesman, Mr.Sithisak Wanachakij
As soon as the criminal court pronounced the verdict on November 23, 2011, in the criminal case number OR.311/2554 , State Attorney vs Mr.Ampon Tangnopakun, so called "Ar Kong", who is 61-year-old defendant indicted for defamation, insult, and expression of feud against the King and the Queen, which is an offence according to the Criminal Codes Act article 112 and Computer Crime Act B.E 2550 article 14(2) (3), the interest of the public gets as strong as the recent torrential flood in Bangkok. Also, some foreign countries pay interest and concern as well as negatively criticize Thai court of justice.
However, no matter which direction of the public converse, the court and law enforcement authorities never obstruct any people's expressions if they are based unbiassedly and academically, in accordance with legal principles, rule of law, reasonable logics, or honest personal believes of sufficient facts.
Nevertheless, several people negatively criticize the verdict above despite that they have not thoroughly seen the evidences or facts. Thus, silence of the court and law enforcement authorities can be no longer golden.
The writer would like to draw the attention to some matter in this case to answer the doubts raised in the public and to communicate with the audiences as follows.
1.Ar Kong has not committed any crime. Why does the court jail him?
2.The court's sentence of 20 year imprisonment is too much.
3.Ar Kong is very old and, thus, deserves a relieved sentence, release or bail.
4.Thai courts do not hold an international standard. Freedom of expression should be guaranteed.
5.The offences as stipulated by the Criminal Codes Act article 112 and the Computer Crime Act should be revoked.
First, any people who believe that Ar Kong has not committed crime, but is incriminated by people out of the court and law enforcement authorities, would find it difficult to reason this because it may be only personal belief without their actual presence in the crime scenes. It is only subjective without supporting evidence.
Whilst this case has passed investigative processes, verified by the state attorney, the defendant could freely defend himself in the court which is according to the universal principles where, in the trials, defendants or convicts can impartially and justly defend themselves.
Why the court of the first instance rules that the defendant Ar Kong is guilty, is because the court has weighed the evidences from both sides and believes that the defendant is actually guilty as charged by the state attorney. If the defendant does not agree with the verdict, he can appeal or petition as stipulated by the law.
In fact, there are plenty of cases in which higher courts overturn or change lower courts' verdicts. Thus, when the case is not final, the conclusion that Ar Kong is finally convicted and absolutely guilty cannot be definitely drawn for certain as some hold such believes. Actually, Ar Kong remains assumed not guilty until the case is final.
Next, what are the reasons for court's sentencing him to imprisonment? As a matter of fact, in the past, defamation or insult of ordinary people resulting in severe damage to others' reputations, have already led the court of justice to sentence defendants to jail without probation.
In this case, there were expressions of profanity and feud, insulting HM the King and the Queen with barbaric and filthy words, even in excess of what either sages or lay people would insult others. In particular, the crimes targetted at HM the King, the head of the country, whom is highly respected and worshipped of all Thais and around the world. The King has been on the throne for more than 65 years, exercising the Ten Precepts of Royal Ethics, caring for the whole citizens throughout. Despite of his illnesses, His Majesty keeps working to relieve sufferings of the people drown in this flood.
HM the King has devoted his life to work for national and public tranquility of all groups. The Constitution article 8 stipulates that "HM the King possesses the highly respectful and worshipped status which no one may violate." HM the King, in particular, is not a disputant who would have conflicts with or would afflict the defendant to the least extent. Moreover, HM the King is above all political conflicts and all political mass movements. Therefore, there is no reason to support the deceptive claim that the case has a political base which is unfair and far from truths.
Second, this case, apart from the context of the case, the severely profane expressions, facts include that the defendant did not do it only once, but actually committed 4 various incidences of different expressions of profanity and feud, indicating definite intention to defiantly violate the law without respect to the law and moral restraint.
Since the defendant refuses to plea guilty throughout during the court's deliberation, there is no cause to relieve the penalty as stipulated by the law. The penalty for the offence in the Criminal Codes Act article 112 is 3 to 15 years imprisonment while the penalty for the offence in the Computer Crime Act is at maximum 5 year imprisonment.
The penalty which the court of the first instance sentences for each deed is 5-year imprisonment according to article 112 which carries severe penalties, is only two years higher than the minimum penalty limit, leaving ten years more to the maximum which could have been enforced. When counting all four deeds together, it adds up to a total of 20 years which some people unknowingly may consider too severe for a crime. However, if the actual serious circumstances of the crimes are taken into account, several people may otherwise consider the penalty of too light or optimal.
Third, the defendant is widely called "Ar Kong" which sounds like a very old man, however, the defendant is 61 years old which is not too old or crippled to need a guardian. He still understands and utilizes new technology, therefore a fully conscious and sane, not so elder as a great grandfather.
As for any old veteran to the world but possessing malevolence toward the public institutions and toward the national head who is highly respectful and worshipped of the public, and could cause vast extent of confusion and major disasters, the writer believe that there would be nobody wishing him free in the society, to successively damage others. for one day in the futre, his close acquaintances may also fall victims of him. Proper measures are to obstruct the chance for the future crimes and to punish the criminal severely enough to make him feel the guilts while to fend off others. Particularly with those who meticulously but intriguingly conspire the crimes, appropriate measures are crucial to protect public order of the country and the people. Therefore, it is not to be taken for grant that an old convict would always derserve relieved penalties, minimal punishment, or to be released, because, in fact, it depends on the offences, damages and the circumstances of individual case.
In terms of permission to bail, the decision individually depends on the context of each case as stipulated by the Criminal Deliberation Codes article 108 and 108/1.
Fourth, the International Covenant on Civil and Political Rights (ICCPR) affirmatively states in article 19 as follows.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Moreover, the International Covenant on Civil and Political Rights also protects the reputation and dignity of a person not to be violated in article 17 as follows.
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
Thus, despite of the acceptance of the freedom of expression as a basic human right by the ICCPR, it also limits the right to base on sense of responsibility not to violate rights of others, because equally everyone has the right to defend one's own reputation and dignity which is also protected by the law.
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2011, the Covenant had 74 signatories and 167 parties.
Thailand joined this treaty by accession on October 29, 1996. Since October 29, 1997 the treaty has been in effect in Thailand and in accordance with the Constitution of the Kingdom of Thailand article 45 which states, "Every person has freedom of expression, speech, writing, printing, press, and any communication means. Restriction of the rights in the first clause is not permitted except provided by the laws to protect the state security; rights, freedom, dignity, reputation, family and privacy rights of others; or to protect public peace, order and morality..."
In addition, Civil and Commercial Codes article 5 stipulates, "In exercise one's own right, one has to carry out honestly". Article 421 stipulates, "In exercise one's own right, which would damage other person, is considered illegal.". These are of the same standard as the international treaty above which demonstrate that Thailand provides rights and freedom to the citizens, and possesses laws which are equally advance as other developed countries. It is the administrative system which differs and hence every country should respect such differences which are cultural and social prides of individual country.
If any critic, has not yet thoroughly studied background history enough, lacks of adequate facts, or does not understand local cultures and traditions of a country, but criticizes the court or the justice system of the other country, as if such critic is so worried that the court has inferior standard to the international, it would be highly sensitive and risky to mean an unfair comment. Such comment may mean that the critic is mixed up with bias or carries hidden agenda. In fact, for very a long time, Thailand has autonomy in administration and justice system while her citizens have freedom of expression under her Constitutional Monarchy.
Fifth, all Thai laws have been enacted by the legislative body which comes from the whole Thai citizens, and can be amended or revoked. of the House of Representatives sees that the law is obsolete or inappropriate. The court is the body who enforces the law according to the spirit of the law which the House of Representatives draws. There are several laws which have been written in a way that nearly do not allow the court's discretion or that the severe punishment is unavoidable for some offences such as producing or importing addictive substances of type 1 for only one tablet, or murdering one's own parent which carries only death penalty. Although law amendment or revocation is possible, the public's concern, public peace and order as well as side effects and sequelaes are to be considered without emotion or instigation to the wrong path.
Ar Kong case is still in the first stage of proving the defendant guilty or not along the path of freedom which the law allows, so long as the case is not final. Premature conclusions to blame anybody or bodies who keep the law of the society may be unfair.
By the way, people of any races or cultures are patriotic to their cherished motherlands, respectful in their faithful religious prophets who are their religions' leaders. Differences in ideologies, races, religions, politics, arts, cultures and traditions are not abnormal in the world. Insult, libel or expression of feud against other religion's prophet is a behaviour which civilized people must not do because such minute cause may spark a national disaster.
Therefore, if one wishes to know the present and future of any nation, please study the history of that nation. Thailand has maintained her autonomy and identity which is admired by all other nations because all Thais in the society have affinity and unity. They are generous and flexible to each other. They are not severely aggressive or unreasonably insensate. They cherish the country, religions, and Royal institutions from generation to generation. It has long been a delivered legacy to the present young generation.
Thais are still patriotic and proud in their homeland. They will protect the nation, religions and the King. Criticizing is definitely allowed and free to do with unbiased impartiality based on constructive attitude. Exercise of one's right beyond the limit to encroach upon another is not allowed.
Claiming political reasons or other reasons to justify oneself for expression of feud, or insulting with speech and lies against others is also not allowed. Future generations of Thais are not going to be left with wreckage of the nation because the present generation of Thais is careful and willingly protect the legacy of pride.