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Special Report - Thailand

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Background

Thailand is an attractive destination for leisure and business travellers alike, a fact attested by the nearly 30 million people who visited the country during 2015. If projections hold, 2016 could see record numbers of foreign nationals travelling to the popular Southeast Asian nation.

Transnational companies and investors are drawn towards its open market-oriented economy - the second largest in the region after Indonesia. Despite falling three places compared to last year in the World Bank’s 2016 Ease of Doing Business report to 49 (of 189 countries), Thailand remains the third least complicated country to conduct business in Southeast Asia after Singapore and Malaysia.

According to a 2015 Investment Climate Statement released by the U.S. Embassy in Bangkok, foreign direct investment is encouraged as a means of promoting economic development, facilitated by a number of ‘pro-investment policies, and a well-developed and growing infrastructure platform’. This makes the Kingdom an enticing location for both transnational firms and investors.

There is however an increasing degree of political risk associated with operating in the country. The ruling National Council for Peace and Order (NCPO), headed by former General Prayut Chan-o-cha, has implemented and enforced a raft of legislative measures following the May 2014 military coup, aimed at consolidating its position within the Thai polity. This has been achieved by assuming firm control of the country’s political institutions and suppressing public dissent. It is for these reasons that human rights NGO Freedom House has revised its categorisation of Thailand from ‘partially free’ to ‘not free’ since the military seized power.

Lèse–majesté and the Computer Crimes Act

Notably, there has been an increase in the use of legislation such as the 2007 Computer Crimes Act (CCA), which stipulates that individuals creating, publishing and sharing information online that is deemed a threat to public or national security are liable up to five years’ incarceration. The authorities can demand passwords be relinquished to facilitate the monitoring of data or web traffic from any device suspected of being used to commit an offence for a period of 90 days. Even benign or legitimate journalistic endeavours are under threat. There have been cases involving journalists being prosecuted for quoting information in the Thai media that has already been verified and widely disseminated online by major news outlets such as Reuters.

In many instances, the CCA is used in conjunction with the country’s lèse–majesté laws to bolster the junta’s suppression of potential critics. Any transgression against the ‘dignity of a sovereign ruler or a state’ is criminalised under Article 112 of the Thai Criminal Code which states: ‘Whoever defames, insults or threatens the King, Queen, heir-apparent, or Regent shall be punished with imprisonment of three to fifteen years.’ A clear definition of what constitutes ‘defamation’ or an ‘insult’ is however not provided. As a consequence, there has been liberal application of the law whereby criticism of the monarchy, including Thai Kings both living and dead, is prohibited.

This ambiguity coupled with the fact that Article 112 complaints can be brought by any citizen against another (obliging the authorities to investigate), has resulted in myriad ways to fall foul of the law. In February 2015, two students were sentenced to two and a half years after they performed a play that parodied the King. In May, the Supreme Court upheld a two-year jail term handed down to a politician who discussed slavery during the reign of King Mongkut (1851-1868) on local radio. Most recently, charges were filed on 14 December against a young Thai national for liking ‘sarcastic’ photos, and posting disrespectful comments about the King’s (now deceased) favourite dog ‘Copper’ on social media; if convicted, he faces 37 years in prison.

Amnesty International says suspects are often tried in military courts barred to observers and lacking impartial judicial oversight. Indeed, in the period from May 2014 until September 2015, a total of 1,408 civilians were tried in military courts. They are routinely denied bail under the pretext that their cases represent sensitive matters of national security. If the charges relate to offences allegedly committed prior to 1 April 2015, there is no right to appeal. In the past few months alone at least two lèse–majesté suspects have died under suspicious circumstances while being held in military custody, prompting the United Nations Human Rights Office for Southeast Asia (OHCHR) to call for an immediate end to the practice.

Brad Adams, Human Rights Watch’s Asia director says defendants are being punished with unprecedentedly lengthy sentences once convicted. In August an opposition activist was given 60 years (commuted to 30 after pleading guilty) for publishing six posts deemed defamatory to the King on Facebook. In a separate case involving the popular social media platform, an hotelier was jailed for 56 years (reduced to 28 after admitting the crime) for posting seven messages considered in violation of the law. While the majority of these cases involve locals, foreigners have also been found guilty of lèse–majesté.

Travellers charged with Lèse–Majesté

  • December 2006 – Swiss national Oliver Jufer was arrested for defacing posters bearing the King’s face. He was sentenced to 10 years after pleading guilty to five charges under Article 112. Jufer was granted a royal pardon and subsequently deported in 2007.
  • January 2009 – Australian Harry Nicolaides was jailed for three years for a passage in a book he authored in 2005 that was deemed defamatory. He received a royal pardon in February and was returned to Australia following 6 months incarceration.
  • December 2011 – American citizen Joe Gordon was handed a two and a half year prison term for posting translated exerts from an unsanctioned biography of the King online. Mr. Gordon received his pardon in July 2012 and was deported from the country.

Even the United States' Ambassador in Bangkok, Glyn Davies, is being investigated for alleged disparaging remarks he made about the monarchy at the Foreign Correspondents Club of Thailand in late November. Ironically, Davies actually made comments to international journalists at the event publicly questioning the lengthy sentences handed-down by military courts to civilian defendants under Article 112 and the CCA.

If the precedent holds, merely raising concerns about freedom of speech may now itself be considered an act of sedition. The Ambassador’s comments provoked an indignant response from supporters of the military government, inciting a protest by ardent royalists outside the U.S. Embassy building in Bangkok. The British Ambassador Mark Kent drew a swift rebuke from a government spokesman when he pointed out that a royalist protest was permitted, while student demonstrations against alleged corruption in the military are swiftly suppressed.

Political Instability Driving Cases

It is this selective application of the law for political ends that has become increasingly common under the National Council for Peace and Order (NCPO) government. According to figures published by Bangkok-based legal monitoring group iLaw, 75 people were investigated for lèse–majesté over the approximately seven and a half years prior to the coup. In the past 18 months, at least 56 people have been charged with the offence. A total of USD 482 million was allocated in the national budget in 2015 alone to facilitate lèse–majesté prosecutions, ostensibly because the ‘monarchy cannot sue anyone’.

In reality, Reporters Without Borders claim the law is being selectively enforced to stifle dissent by targeting intellectuals, opposition politicians, human rights advocates, bloggers and journalists. Those who openly criticise the ruling junta are forced to flee the country or face arrest. Many regional analysts claim that the frequency and severity of the cases reflects the military's determination to retain power during the inevitable upcoming royal succession, as 88-year-old King Bhumibol's age advances and health deteriorates.

It may also be a reflection of growing political instability in the country, ultimately eroding the NCPOs raison d'être, which is predicated on public order and economic stability.

Thailand remains a deeply divided country torn between opposing forces of elected and unelected authority, with political legitimacy derived from competing sources of traditional hierarchy and popular sovereignty. According to analysis produced by the International Crisis Group, it is ‘in the grip of a conflict between forces of change and continuity’. On the one hand exists the traditional patronage system, exemplified by the symbiotic relationship between the bureaucracy, military and palace networks. On the other, populist political parties aligned with ousted Prime Minister Thaksin Shinawatra, that mobilise provincial voters, challenge the status quo, and have subsequently won every general election since 2001.

It is essential for the NCPO’s survival that it defends its position as bastion of the former, as it cannot retain power solely through democratic means. However, even within the ranks of the elite there are reports of growing factionalism, evidenced by known royalists and military officers being purged from the inner-circles of power after being charged with lèse–majesté and corruption. Most notably, a total of nine relatives of the Crown Prince’s former consort Srirasmi Suwadee were charged throughout early 2015 for misusing royal connections, including her parents, who were sentenced to two and a half years in prison under Article 112 in March.

Economic Malaise

Poor economic performance is undermining the junta’s position. The Asian Development Bank described the country’s 2015 economic growth as ‘feeble’ due to falling farm incomes, slowing wage growth and high levels of household debt. Despite a raft of government measures to boost the economy, including a GBP 2.6 (USD 3.8) billion stimulus package for rural areas, GDP growth rates are predicted to increase by just over one percent in 2016.

Additionally, Foreign Direct Investment has plummeted. Figures released by Thailand’s state-run Board of Investment (BoI) in January 2016 detail that total investment applied for by foreign companies between January and November 2015 dropped 78 percent on the same period the previous year to GBP 1.8 (USD 2.6) billion. Analysts warn that years of political instability, including two military coups in the past decade, are damaging business and investor confidence without any sign of abating soon.

The Outlook for 2016

Several factors portend an increase in political and economic volatility this year, risking hardening the junta’s intolerance of dissent. Rural communities, who constitute an electoral majority traditionally opposed to the ruling elite, are facing one of the worst droughts in decades; predicted to exacerbate further in 2016.

If the NCPO calls a general election while presiding over falling living standards among a bulk of the electorate, it may be presented with the prospect of either ceding power or retaining it by force, neither of which is an attractive proposition.

It is for this reason (compounded by the uncertainty of the King’s succession) that prompted the government to initially reject its own draft constitution in September 2015. The latest iteration, released on 29 January, creates a roadmap for elections in mid-2017. However, according to the team tasked with codifying the document, it fails to provide adequate provisions to address underlying sources of tension and political instability.

Nevertheless, the draft is scheduled to be subjected to a referendum on 31 July this year, despite opposition by some who claim that it has been formulated to consolidate the military’s position. It remains to be seen whether the NCPO will honour its promise to call elections regardless of whether the new document is promulgated.

In the meantime, according to an Associate Professor at Kyoto University's Center for Southeast Asian Studies, ‘human rights violations will continue to take place since the space for free expression has been seriously limited'. This is likely to include more frequent and severe invocation of Article 112 and the CCA to silence its critics, both domestic and foreign.