On December 4, 2016, Jatupat Boonpattararaksa, known by his nickname “Pai,” then a law student at Khon Kaen University in northeastern Thailand, was arrested and accused of violating Article 112 of the Thai Criminal Code, or defaming, insulting, or threatening the king, queen, heir-apparent, or regent. Two days prior, he had shared to Facebook a biography of the new king, Maha Vajiralongkorn, or Rama X, who became king following the death of his father, Bhumipol Adulyadej, Rama IX, on October 13, 2016. The BBC Thai biography was candid and highlighted Vajiralongkorn's string of wives, his four abandoned sons, and his conferral of a military rank on his pet dog, as well as his recent bike rides for charity (BBC Thai 2016). Over 2,600 people shared the BBC Thai link, but Pai was the only person to be arrested in December 2016 and the only person to be prosecuted to date (TLHR 2017a).Footnote 1 The complaint that led to Pai's arrest was filed by Lieutenant Colonel Phitakphon Chusri, a Khon Kaen–based soldier who has followed him closely.
Pai is a member of Dao Din (Stars on Earth), a longstanding group of law and other students working with rural villagers to challenge environmental and human rights violations. After the May 22, 2014, coup by the National Council for Peace and Order (NCPO), Pai became a leader of the student opposition movement and already had four pending cases stemming from his peaceful protest against dictatorship by the time of his arrest in December 2016 (TLHR 2017a). Bail is usually denied in Article 112 cases, but Pai's student activist status and visibility secured his release (TLHR 2017a).Footnote 2 His freedom was short-lived, however, and his bail was revoked on December 22. The judge who revoked his bail claimed that he both failed to erase the original offending post and posted a criticism of the court for setting high bail amounts for other student activists arrested for peaceful protest. This indicated that Pai “mocked state power without fear of the law” (TLHR 2017b). Since then, he has been behind bars in the Khon Kaen Prison.
On August 3, 2017, Pai's Article 112 trial began in the Khon Kaen Provincial Criminal Court. The trial was closed to the public with the vague justification of “national security” and only Pai, his parents, and his lawyers were permitted in the courtroom (TLHR 2017c). Pai initially intended to fight the case and pled not guilty. But once hearings began, he decided to change his plea to guilty and the hearings came to an abrupt end.Footnote 3 On August 15, 2018, the judges returned the sentence: two and a half years’ imprisonment. Pending decisions in his other four cases, which could lengthen his term, Pai will be released in June 2019.
I begin with Pai's case because it is emblematic of the exercise of repression since the NCPO's coup returned dictatorship to Thailand after two decades of halting progress towards democracy. From the first days following the coup, the NCPO has sought to limit freedom of expression and circulation of information that challenges or even differs from the official story. The NCPO's primary tool of repression is active and expansive use and abuse of the law to silence its critics (TLHR 2017d). Journalists, writers, students, lawyers, politicians, and ordinary citizens—anyone who dares to articulate and circulate a dissenting opinion—are all treated as potential enemies. According to Thai Lawyers for Human Rights (TLHR), formed in the first days after the coup to document the NCPO's rights violations and defend those targeted, at least 162 people have been prosecuted for violation of Article 112; at least 92 for violation of Article 116, or sedition, used as a catch-all for criticisms of the regime; and at least 378 for violation of a range of laws criminalizing public assembly during the first four years of the NCPO's regime (TLHR 2018, 26–32).
The NCPO does not, and perhaps cannot, silence every dissenting voice, and so selected individuals are targeted in a constellation that may appear to be wholly ambiguous and arbitrary, but whose logic can be parsed upon reflection. If the BBC Thai news article was deemed to insult the monarchy, why was Pai prosecuted and not the other several thousand who shared the article? Why not the BBC reporters and programmers who authored and disseminated the article, which are actions that were judged to be crimes in earlier Article 112 cases?Footnote 4 The targeting of a select few individuals is an instance of “killing the chicken to scare the monkey,” in which broad compliance is secured by visiting harsh repression upon a few.Footnote 5 This works to engender fear by sending the message to critics and would-be critics that one is doubly vulnerable. One may be arrested for dissenting, but one may not. This possibility becomes both more unpredictable, and high-stakes, when the monarchy is involved.
As the NCPO enters its fifth year of rule, elections and a partial transition to democracy have begun to appear on the horizon. In June 2018, Deputy Prime Minister Wissanu Krua-ngam stated that elections would be held at the earliest on February 24, 2019, and at the latest on May 5, 2019 (Kas and Khanittha Reference Chanwapen and Theppajorn2018). A full accounting of the repression and its individual, social, and national effects will be a necessary part of any transition. Even an outline of the full range of rights violations and their costs is far beyond the scope of this essay. Instead, I approach the impending transition by examining three instances in addition to the case of Pai of the restriction of freedom of expression to illustrate how the arbitrary and selective exercise of the law has morphed and transformed across the years of the NCPO's rule. These examples, drawn from three distinct moments during the NCPO's regime, illustrate the junta's sustained desire to control information and its transformation into knowledge. Thanapol Eawsakul and Pravit Rojanaphruk, an editor and a journalist arbitrarily detained in the aftermath of the coup; Taweesak Kerdpoka, a journalist prosecuted in relation to the 2016 constitutional referendum; and Prawais Praphanukul, a lawyer prosecuted for alleged violation of Article 112 in 2018, all experienced the curtailment of their liberty for dissenting. The repression they faced suggests unsettling questions about the future of freedom of expression and political life in the polity when law operates in a sustained arbitrary fashion or is disregarded altogether.
Arbitrary Detention
Two days before the coup, on May 20, 2014, martial law was declared and provided the military with an expansive range of powers, including warrantless search and seizure, authority to set a curfew and limit movement, and detention of individuals for up to seven days without any requirement to appear before a judge or otherwise present evidence. Beginning on May 23, 2014, lists of individuals summoned to report themselves for so-called “attitude adjustment” to the Army Club in Bangkok were broadcast via television and radio. Every few hours, a new list of politicians, activists, intellectuals, journalists, academics, former political prisoners, and others was announced. Detention under martial law takes place outside usual places of detention, and those held were taken to army bases throughout the country. Detainees are not required to be allowed to contact a lawyer or their families, so the detention was often incommunicado as well as arbitrary. The NCPO did not specify what “attitude adjustment” would entail, but those detained reported a range of experiences, including interrogation, torture, threats of violence, and around-the-clock surveillance.
Although the summons were most numerous in the first six months following the coup, the practice has continued throughout the NCPO's regime.Footnote 6 Although the NCPO has refused to release its own numbers, TLHR reported that 876 have been detained for “attitude adjustment” during the first four years since the coup (TLHR 2018, 17). Two media workers, Thanapol Eawsakul and Pravit Rojanaphruk, wrote and published accounts of their detention that illustrate how the broad powers afforded by martial law set the stage for ongoing harassment and intimidation, as well as detention.
Thanapol Eawsakul is an editor and publisher who founded the Fa Diew Kan (Same Sky) journal and publishing house in 2003. Throughout the last fifteen years, the journal has provided a platform for scholars inside and outside the university to express progressive views on current and historical social and political topics. Thanapol and the editorial collective have written numerous features about abuse of power and the exercise of violence against citizens under every government since the journal's inception. Fa Diew Kan has also published a series of important and critical articles about the institution of the monarchy, including several Article 112 court decisions.
Although the junta immediately banned public demonstrations of five or more persons after the coup, citizens poured into the streets during the first days. On May 23, 2014, Thanapol joined one of the protests. When he saw the military pushing a young activist into a truck, he insisted on going along as well.Footnote 7 That evening, Thanapol's name was on one of the first broadcast lists of those summoned, and the authorities took him to the Army Club in Bangkok the next morning. He was soon transported with others to a base outside the city. He was held for the full seven days before being released. Upon being released, he wrote:
I was well-treated during the entire 7 day period of my detention. But at the same time, high-ranking officers in the division came by to unofficially chat (with us), and each one was duty bound to report to his commander. What we have to realize is that what has taken place before us is without any basis in law or reason. General Paiboon Kumchaya, who spoke at the end and interviewed us individually on the day of release, said that, “the thing that we did was against the law, but it was at the right time.” (Thanapol Reference Thanapol2014)
After Thanapol was released, his social media was monitored closely. He was detained for a second time for four days on July 5, 2014, because soldiers did not like his Facebook posts critical of the NCPO (Reporters Without Borders 2014). A soldier called him up and invited him for coffee, and then took him from the coffee shop into custody.Footnote 8 Thanapol has not been detained again, but authorities visit the Fa Diew Kan office regularly and follow him on Facebook (Prachatai English 2015).
Pravit Rojanaphruk, a longtime reporter for The Nation newspaper and presently a reporter for Khao Sod English, described his experience of “attitude adjustment” as detention by Big Brother. Like Thanapol, he wrote of being well-treated, but constantly surveilled by the soldiers. Before they were released, he and other detainees were compelled to sign statements saying that they were treated well and were not harmed, and that they would refrain from political activity (Pravit Reference Pravit2014). Twenty-six hours after he was released, an army officer called him to ask him to stop tweeting criticism of the military. Pravit cited his responsibility as a journalist to his readers and the public and refused to stop tweeting, but agreed to soften his criticism (Pravit Reference Pravit2014). A year later, in September 2015, the NCPO was uneasy about his reporting about human rights violations and so detained him for another five days (Pravit Reference Pravit2015).
Thanapol, Pravit, and many other journalists, writers, and activists know that their newspaper articles, social media activity, and other public expression is under constant surveillance. Detention, prosecution, and the threat of worse violence loom.
Journalism Is a Crime
As part of the NCPO's May 22, 2014, coup, the 2007 constitution, Thailand's nineteenth, was abrogated. The NCPO promulgated an interim constitution in July 2014 and began drafting a new permanent constitution. The draft of Thailand's twentieth constitution was unveiled in March 2016. Although eagerly awaited as a key step in a return to democracy, the draft created a near-permanent position for the military in governance and limited political participation by the people (Khana Nitirat 2016). A referendum on the constitution was set for August 7, 2016. A Referendum Act that severely limited public discussion of the draft was promulgated by the NCPO-appointed legislative assembly. Article 61 of the Act stipulated that disseminating “text, pictures or sounds that are inconsistent with the truth or in a violent, aggressive, rude, inciting or threatening manner aimed at preventing a voter from casting a ballot or vote in any direction or to not vote” were crimes punishable with up to ten years’ imprisonment, a fine of 200,000 baht (5,600 USD), and loss of voting rights. The law was applied to anyone unaffiliated with the NCPO who publicly discussed or disseminated material about the draft. A total of 207 people were indicted in relation to the draft constitution, including under Article 61 and the junta's prohibition of public gatherings of five or more persons (TLHR 2016).
On July 10, 2016, four activists with the New Democracy Movement (NDM), a student group active in popular education about the draft, traveled to Ratchaburi Province, a few hours from Bangkok, to visit villagers arrested as part of their own organizing around the draft. Taweesak Kerdpoka, a reporter for the independent media site Prachatai, traveled with them. The police recognized the NDM activists at the police station and arrested all five when they went to visit the villagers. The police searched their car, found NDM stickers urging a no vote, and used the found stickers to accuse them of violating Article 61. The Prachatai office was also searched, but no materials related to the draft were found (Tewarit and Yiamyut Reference Tewarit and Yiamyut2018).
Hearings were held in March 2017. In January 2018, all five were acquitted on the basis that possession of the stickers was not a crime (Prachatai English 2018). Taweesak's status as a journalist was immaterial to the court, and his prosecution sent a clear message that a journalist could be arrested, charged, and prosecuted for doing his job. Reflecting on his case, Taweesak wrote:
Of the feelings that arose the day I was arrested, only anger remains. I'm angry every time government leaders try to claim that they are currently leading Thailand to a restoration of a democratic system. But in reality they are doing the complete opposite…. [M]y story is one of a reporter prosecuted for reporting, for reporting about a referendum campaign and the consequences of expressing thought in Thailand. I believe these are issues that affect the rights and freedom of people intensely. They show the government's severe attempts to obstruct citizen understanding and the duties of mass media. The government wants to build an atmosphere of fear around campaigning during the referendum, something so key to the country. (Taweesak Reference Taweesak2017)
Taweesak escaped conviction, but spent many days traveling to court hearings over the eighteen months of the case, time he could have used for journalism. Law here became an instrument of harassment and intimidation to try to shut down discussion about the draft constitution and reporting on those who attempted to do so in defiance of the law.
Article 112 in the Reign of Rama X
The third example, of a second Article 112 case, is at once the most arbitrary and uncertain, and also the most difficult to interpret given the nature of the law itself and the prohibitions it places on questioning the figure of the king or the institution of the monarchy. Article 112 has been part of the Criminal Code since its last revision in 1957, but its use was rare until the last coup of September 19, 2006, when cases began to rise and punishments lengthened (Streckfuss Reference Streckfuss2010). The use of the law continued to increase following the May 22, 2014, coup, and the longest punishment to date was meted out to Wichai (family name withheld), who was sentenced to thirty-five years’ imprisonment for ten Facebook posts deemed to violate the law in June 2017 (Agence France-Presse 2017).
But a new uncertainty has entered the polity and colored the exercise of the law since Rama X became king. Pavin Chachavalpongpun and Somsak Jeamteerasakul, two well-known exiled scholars whose influence the NCPO tried to curb by criminalizing the act of following them on Facebook, have written posts and articles querying the new king's governance and financial practices, including the presence of a prison within the grounds of one of his palaces.Footnote 9
Article 112 makes asking pointed questions about the king inside Thailand fraught with peril, as Prawais Praphanukul learned. On the morning of April 19, 2017, uniformed and plainclothes soldiers took the fifty-eight-year-old lawyer from his home in Bangkok. After four days of incommunicado detention, he was taken to the Technology Crime Suppression Division, a series of accusations were leveled against him, and he was then sent to the Bangkok Remand Prison, where he has remained since. He was accused of ten counts of violation of Article 112, and three counts of sedition, or Article 116. All thirteen counts stemmed from Facebook posts about the monarchy, the NCPO, and Thai society that he made on April 28, 2017.Footnote 10 The number of charges—thirteen—and potential maximum sentence—171 years—were the most severe to register in a single case since the coup.
Prawais chose to plead innocent and further refused to participate in his trial. During a hearing in the Criminal Court in Bangkok in September 2017 to set trial dates, Prawais announced that he would not participate in the trial and submitted two written declarations stating that he would not appoint a lawyer, sign court documents, testify, or present any witnesses in his defense.Footnote 11 As he did in the thirteen Facebook posts that led to his arrest, Prawais raised basic but challenging questions about the relationships among the crown, the state, and the people in Thailand. In spare language replete with a legal logic honed over thirty years of experience, Prawais detailed the illegitimacy of the proceedings against him. He argued that the judiciary and the monarchy are intimately interlinked, as is evidenced by the statement at the top of every court decision that the court is “acting in the name of the king.” In Article 112 cases, the king is the alleged injured party, and this means that the court is that of the injured party. The court is therefore partial, and so his view was that he could not receive a fair trial.
Prosecution hearings were held in May 2018, and the judgment was rendered on June 27, 2018. Many worried that Prawais would be sentenced to a lengthy prison term for the ten counts of Article 112 and his continued critique in the declarations. Instead, Article 112 was not mentioned in the judgment. He was sentenced to fifteen months in prison for violation of Article 116 and one month for refusing to be fingerprinted. He was released at the end of August 2018. On the one hand, this decision is good for Prawais and may appear as a victory for freedom of expression. But the court's action was mysterious: he was not found innocent of the Article 112 charges; they were simply not addressed. In time, the reason may become clear, but for now, uncertainty reigns. Pai was judged guilty and sentenced to two and a half years in prison for sharing a biography of Rama X written by a major news agency, and the court opted not to judge Prawais for his ten Facebook posts. Perhaps there is a sea-change taking place inside the judiciary that “acts [sic] in the name of the king,” or perhaps Rama X decided to be generous. If so, his generosity is a benefit to those who receive it, but confirms Prawais's argument that the court is that of the king.
Towards the Transition
Many questions about the future and what will take place once elections are held and there is a transition, however partial, to democracy, are urgent at present. The most challenging of these are also the most difficult and dangerous to ask and are related to the transition to a new king that has already taken place. For example, whether or not the meaning of the decision in Prawais's case indicates an opening for freedom of expression about the monarchy or the further entrenchment of repression may or may not become clearer after elections in 2019. One can only wait and watch for additional court decisions or other signs about if, how, and in what ways democracy and monarchy will intersect in the future.
In comparison to other regimes, the actions of the NCPO and the number of those prosecuted for political expression in Thailand may appear relatively benign. This has allowed NCPO Head General Prayuth Chan-ocha and other members of the NCPO to slip out of their fatigues into suits and cast themselves as politicians rather than military dictators. But the detention, prosecution, and imprisonment variously experienced by Pai Jatupat Boonpattararaksa, Thanapol Eawsakul, Pravit Rojanaphruk, Taweesak Kerdpoka, and Prawais Praphanukul are emblematic of how the NCPO has ruled and adapted its arbitrary use of law to changing circumstances since the May 22, 2014, coup to engender widespread fear by targeting specific critics for repression. Despite repression, the five critics discussed here and many other journalists, activists, academics, students, and other citizens continue to write, debate, and protest the regime. But they do so not knowing if they will become the chickens who are killed to scare the monkey—and harassed, arrested, and imprisoned—or left alone for the time being. Perhaps unwittingly, the NCPO has signaled which actions and ideas are significant through its selections of those targeted for repression. As scholars and other observers of Thailand wait to see how the future unfolds, I close by recommending that we pay particularly close attention to those who dissent and whom the NCPO has tried to suppress: the NCPO attempted to suppress them because their ideas, and their courage to put them forward, may have the potential to reshape the polity to be more free and just.
