Freedom of Expression in Thailand - ALSA TU - The Legal Newsletter

Freedom of expression refers to the ability to express their beliefs, thoughts, ideas, and emotions about different issues, which are free from government censorship. It is considered as one of the basic fundamental human rights. The 2017 Constitution of Kingdom of Thailand approved this right in Article 34, which stated that "A person shall enjoy the liberty to express opinions, make speeches, write, print, publicize and express by other means. The restriction of such liberty shall not be imposed, except under the provisions of law specifically enacted to maintain the security of the State, protect the rights or liberties of other persons, maintaining public order or good morals, or protecting the health of the people."

Even though the Constitution is the highest hierarchy of source of law in Thailand, but the conflicts based on freedom of expression have arisen since the first Constitution. Many second-order laws were legislated in order to restrict fundamental human rights approved by the Constitution. Law enforcement nowadays is to limit such rights rather than protecting it as it is the highest hierarchy of law. One of the most famous second-order law that is unacknowledged worldwide is the lese majeste law. Section 112 of the Thai Penal Code is one of the most controversial topics to mention in Thailand. For anyone who does not have knowledge about Thai law, section 112 is the legal provision concerning lese majeste or in other words, the law concerning criminal defamation against the King, the Queen, the Heir to the Throne and, the Regent. This crime carries a punishment of up to 3 to 15 years of imprisonment.

Thailand is a constitutional monarchy, and the Thai Constitution explicitly stated that Thailand is a democracy. Section 112 of the Thai Penal Code has been used to defame many political opponents in Thai politics. The punishable sentence in section 112 is also disproportionate to the crime committed. When the defendant is found guilty of this crime, the court would have to rule at least three years of imprisonment for the case. This kind of sentence is very disproportionate compared to the general criminal defamation under section 326 of the Thai Penal code which stated the punishment as a fine not exceeding 20,000 baht or imprisonment not exceeding two years or both. Section 112 also discourage people to constructively criticized the institution of the monarchy, which led to a long-lasting problem about the power and structure of the monarchy itself. Moreover, Thailand is a party to international human rights treaties that promote and protect the fundamental rights to freedom of expression. Section 112 is a clear violation of the right to the freedom of speech in accordance with the Universal Declaration of Human Rights. For example,

Article 19 of Universal Declaration of Human Rights prescribed that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 19 of the International Covenant on Civil and Political Rights or ICCPR provided that everyone shall have the right to hold opinions without interference, freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice. Even if under international law, the right to freedom of expression is not absolute, however, the Human Rights Committee has held that any restriction must be provided by law, be imposed for the protection of national security or public order, or public health or morals and must be necessary to achieve that goal and restrict freedom of expression as little as possible. When analyzed according to these standards, it is clear that the imposition of harsh penalties of Section 112 is beyond the restrictions permitted by international law, which Thailand is the State Party and has duties to comply with the standard provided in such law.

In conclusion, freedom of expression is a fundamental human right that protected under the Constitution of The Kingdom of Thailand and many international laws. Thus the government must ensure such right for everyone.

Citations

"WHAT IS FREEDOM OF EXPRESSION?," freedom forum institute, accessed 17 November 2020, from https://www.freedomforuminstitute.org/about/faq/what-is-freedom-of-expression/

"Thailand's Constitution of 2017," Constitute Project, accessed 17 November 2020, from h ttps ://www.constituteproject.org/constitution/Thailand_2017.pdf?lang=en

Adam Maida, "To speak out is dangerous. Criminalization of Peaceful Expression in Thailand," Human Rights Watch, (24 October 2020) accessed 18 November 2020, from https://www.h rw.org/report/2019/10/24/speak-out-dangerous/criminalization-peaceful-expression-thaila nd

"'They are always watching' Restricting Freedom of Expression Online in Thailand," Amnesty, accessed 18 November 2020, from https://www.amnesty.org/download/Documents/ASA3921572020ENGLISH.pdf

"Universal Declaration of Human Rights," United Nations, accessed 18 November 2020, from https://www.un.org/en/universal-declaration-human-rights/

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Asada Prashyanusorn
Napatchanok Insawang
Thanasapon Somnuek

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