Myanmar v. The Bi Mon Te Nay Journalists
On Appeal Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
Chayapha Chokepornboonsri, a Thai resident, was sentenced to nine years and six months by the Military Court in Bangkok on December 15, 2015, for posting images with captions on Facebook which is considered to be an offense under Article 112 and 116 of the Thai Criminal Code and Article 14 of the Computer Crime Act.
Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
On June 19, 2015, Chayapha was arrested by a group of military officers and police officers from the Technology Crime Suppression Division (TCSD). She was accused of committing five criminal offenses through her use of a Facebook account. Under the name “Chanisa Boonyajinda”, Chayapha allegedly posted images of military vehicles with captions that a counter-coup was on its way. The posts alleged that a group of senior military officers were plotting to overthrow Gen. Payuth Chan-ocha, the head of the junta. Additionally, the posts claimed that Gen. Prem Tinsulanonda, Head of the Privy Council of King Bhumibol, backed the conspirators. The content that is considered to be lèse-majesté is not known.
It was reported that Chayapha was arrested without a warrant and that, in lieu of a warrant, the authorities used the power granted to them under Article 44 of the Interim Constitution. Chayapha was taken to a military camp before she was sent to police on June 23, 2015. It was reported that she was initially charged under Article 116 of the Criminal Code and Article 14 of the Computer Crime Act. The lèse-majesté charge under Article 112 of the Criminal Code was added later, after authorities investigated the Facebook messages in question. The arrest warrant issued by the Military Court was reportedly granted ex post facto.
On December 15, 2015, Chayapha was sentenced to 14 years 60 months, which was later halved by a guilty plea to 7 years and 30 months in which she did not receive a court appointment or any information given prior to the date. Chayapha’s defense lawyer reported that Chayapha was sentenced without the presence of a legal representative. The defendant was reportedly told by officers of the Department of Corrections that she had to travel to the court on the night of December 14, 2015. As she had been imprisoned and was not allowed to use a phone, she could not inform her lawyer or her relatives. The defense lawyer also did not receive an appointment from the Military Court, even though the lawyer visited the court on December 14 and asked for an appointment for deposition hearing of Chayapha’s case. Officers at the Military Court checked and informed the lawyer that the appointment still had not been set, promising to contact the lawyer in advance with any updates.
The defense lawyer reportedly submitted a request to object to the legal proceedings of the case. This submission noted that the lack of a legal representative is incompatible with Article 173 of the Criminal Procedure Code. Nevertheless, the Court rejected the submission, noting that Chayapha pled guilty to the charges and noting that none of the penalties last more than five years. In accordance with these findings, the Court could rule without hearing witnesses for prosecution, as stipulated by Article 56(2) of the Act on the Organization of the Military Court B.E. 2498 (1955) and the first paragraph of Article 176 of the Criminal Procedure Code. The second paragraph of Article 172 of the Criminal Procedure Code appurtenant to Article 45 of the Act on the Organization of the Military Court B.E. 2498 (1955) states that when a plaintiff or the legal representative of a plaintiff and the defendant appear before court, the court can initiate the sentencing procedure. Therefore, the Court held, the legal proceeding in this case is compatible with the law.
Additionally, as the ruling was made behind closed doors, the Court reasoned that it agreed with the request of the plaintiff, as the messages posted by the defendant could cause misunderstandings towards the monarchy, which could be a threat to national security.
The Military Court ruled that the defendant was guilty of all five offenses. The first two offenses each carry a five-year prison sentence under Article 112 of the Criminal Code and Article 14(1), (2), and (5) of Computer Crime Act. The last three offences are under Article 116 of the Criminal Code as well as Article 14 (1), (2), and (5) of the Computer Crime Act. Each of these offenses carries a three-year prison sentence. Because the defendant pled guilty, the Court halved the prison sentences. Accordingly, Chayapha received five years instead of 10 years for the first two offenses, and 4 years and 6 months instead of 9 years for the latter three offenses. Because Thailand practices cumulative sentencing, the total length of the sentence is 9 years and 6 months. There are no details on the reasons why the Court found Chayapha guilty.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression. The defendant was found guilty for exercising her rights to freedom of expression and was arrested without a warrant. The authorities used the power granted to them under the Article 44 of the Interim Constitution to arrest her. Article 44, which replaced the Martial Law in April 2015, almost grants the junta absolute power. The junta, under announcement no. 37/2014, dated May 25, 2015, declared that lèse-majesté and national security offenses would be tried by Thailand’s military court. In this case, the junta created a complete system that renders fair trials impossible, because a normal citizen is arrested by military officers, prosecuted by military prosecutors, and then tried by the military court. The independence of the court is doubtful as it operates under the Ministry of Defense.
Many defendants whose lèse-majesté cases were tried by the military court have pled guilty as there is no encouragement to fight the trial. The lawyers in lèse-majesté cases have reported that judges have informed defendants that the defendant might face a maximum penalty if the defendant fights conviction. Without a legal representative, a defendant is vulnerable to plead guilty, often due to a lack of legal knowledge and pressure from authorities. Moreover, when the case is tried in camera, there is no transparency in the legal proceedings.
Another issue that must be addressed is that Article 112 of the Thai Criminal Code, which is the lèse-majesté law, has raised great concerns over human rights violations with which freedom of expression is concerned. The content of the law, which states that “[w]hoever defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years”, is too broad. In practice, the law provides no clear scope on the definition of what actions can be considered as defamation, insult, or a threat. Therefore, the law is widely interpreted and turns against the people, often justified by the claim that the royal institution has to be protected. In fact, the number of lèse-majesté cases has dramatically increased since the launch of the junta.
Chayapha was denied fair trial rights and was arrested without a warrant. To arrest Chayapha, the authorities used the power granted to them under the Article 44 of the Interim Constitution, which grants the junta near absolute power.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.