"KILL THE CHICKEN TO WARN THE MONKEY": NEW LESE

C O N F I D E N T I A L SECTION 01 OF 05 BANGKOK 002342 SIPDIS E.O. 12958: DECL: 09/15/2019 TAGS: PGOV PHUM DRL TH SUBJECT: "KILL THE CHICKEN TO WARN THE MONKEY": NEW LESE MAJESTE CONVICTION IN THAILAND REF: A. BANGKOK 610 (LESE MAJESTE 2009) ¶B. BANGKOK 140 (NEW PM ABHISIT ON LAW) ¶C. 08 BANGKOK 3398 (LM CASES UPDATE) ¶D. 08 BANGKOK 2344 (NEW POLITICAL LM CHARGES) ¶E. 08 BANGKOK 1662 (LM BACKGROUND) BANGKOK 00002342 001.2 OF 005 Classified By: Ambassador Eric G. John, reason 1.4 (b,d) ¶1. (C) SUMMARY: The Thai judiciary sentenced red political activist Daranee "Da Torpedo" Charnchoengsilpakul to 18 years in prison August 28 for lese majeste offenses committed in a series of speeches at red-shirt rallies in June-July 2008. The handling of the case demonstrated both the sensitivity with which Thai authorities react to attacks on the King/institution of the monarchy as well as the due process concerns such cases raise. While the length of the sentence shocked some Western observers, the Thai human rights community was not surprised, given past lese majeste convictions and the nature of her comments. Analysis of her statements from online audio files and the case presented by the Public Prosecutor reveal that she used harsh language about the King's role over the past 60 years, with clear intent to insult (she intimated fratricide of the King's older brother in 1946 and enumerated examples of regicide world wide, among other rhetorical flourishes). However, her attorneys shared information with us about the legal proceedings that offer a window into the questionable conduct of the court, including denial of bail, the closed court proceeding, and handling of evidence. END SUMMARY ¶2. (C) COMMENT. The lese majeste provisions in the Thai criminal code are intended to prevent insult to the monarch, spouse, and crown heir, but implementation has proven controversial (Refs A-E). Harshly punishing anti-monarchy activists such as Daranee -- as the old Thai and Chinese proverb goes -- sacrifices the proverbial "chicken" to warn potential "monkeys" of the danger of challenging the institution of the Thai monarchy. Regardless of what one thinks of the validity of the lese majeste provisions, Daranee's remarks were a clear violation, in both substance and intent. However, the legal irregularities involved ranged from arbitrary denials of bail and witness intimidation to questions around the unprecedented closure of her trial and other indicators that the case was being �A;monitored and possibly directed by authorities other than the trial judge. In their desire to protect the monarchy during this period of political upheaval and transition through vigorous prosecution of lese majeste, Thai authorities risk undermining the perceived impartiality of the institution of the judiciary and weakening the rule of law. END COMMENT. DA TORPEDO SINKING -------------- ¶3. (SBU) At a public event in January shortly after taking office, PM Abhisit was questioned intensively about lese majeste. He opined that there should be a balance between the use of lese majeste as a legitimate legal tool to protect the monarchy, and the abuse of the law as a political instrument. He also stated that intent was important, drawing a clear distinction between academic freedom of discussion about the future institutional arrangements in Thailand and political speech intended to attack the monarchy. Abhisit also firmly rejected suggestions that his government would introduce harsher penalties for lese majeste floated by the new Justice Minister in 2008 when he and the Democrats were in opposition. (Ref B) After that speech, the previous flurry of lese majeste activity quieted somewhat, though it was clear the ongoing legal case against "Da Torpedo" was always going to make a splash. ¶4. (SBU) Daranee Charnchoengsilpakul was originally arrested on July 22, 2008 following speeches she made at a UDD (United Front of Democracy Against Dictatorship, aka "the red-shirts") rally on July 18 and July 19. (Ref D) Having earned the nickname "Da Torpedo" for her impassioned speeches critical of the People's Alliance for Democracy (PAD),the high profile activist was held without bail for nearly a year until her closed trial began in June 2009. Her conviction on three counts of lese majeste on August 28, 2009 resulted in an 18 year sentence - six years for each charge. She is appealing both the judgment as well as presenting a BANGKOK 00002342 002.2 OF 005 Constitutional challenge to the Court's decision to close the trial. RED SYMPATHIZERS RALLY TO HER DEFENSE -------------- ¶5. (C) Daranee's case was controversial from the outset, both because of the sensitivity of the lese majeste issue, as well as her incendiary rhetoric. As a result, her supporters are wary of public statements or other demonstrations of allegiance, and she had difficulty finding legal representation. Chulalongkorn University History Professor Suthachai Yimprasert, who attempted to bail her out of prison, found her a lawyer, and testified on her behalf at her trial, told us Sept 2 that while he did not know Daranee well before this case, he felt compelled to support her as a matter of principle. He depicted her as an ordinary citizen compelled to speak out by the 2006 coup d'etat who did not intend to become a martyr or national figure. ¶6. (C) Daranee's lawyers keep a low profile to avoid potential backlash. While her trial attorney, Prawet Praphanukul, is identified in court filings and in media reports, the senior attorney in the case is Professor Sutachai's friend Krisadang Mutcharat (close hold). Neither specializes in human rights or criminal law; former student activists at Thammasat University in the 1970s, both are involved with the case because of their political leanings. Like Suthachai, they did not know her prior to her arrest. Although barred by the court from sharing the court pleadings and documents with the media, they shared them with us Sept 3. FIGHTING WORDS -------------- ¶7. (C) The Public Prosecutor's October 9, 2008 filing delineates in great detail the language Daranee used. There is little question that, even without referring to King Bhumibol by name, her intent was to insult and defame the monarch, a violation of Section 112 of the Penal Code. The three charges arise from speeches given on June 7, June 13 and July 18-19, 2008, on Sanam Luang, the historic royal ground located in front of the Grand Palace. On June 7, Daranee directed her ire at PAD leader Sondhi Limthongkul, adding: "Don't you threaten us with yellow or blue collars." Given the direct association of the colors with the King and Queen, the Prosecutor argued that her statements were offensive to the monarchy and could be interpreted as suggesting the King and Queen supported the PAD protest of the government. ¶8. (C) In the June 13 speech, Daranee changed her imagery from colors to body parts, repeatedly referencing an "unseen" or "wrinkled" or "leprous" hand. This "hand" controlled the judiciary, the President of the Privy Council General Prem Tinsulanond (who is not referred to by name, but with a derogatory term for a homosexual),and the military, and thus was also behind all 15 coups. While she did not refer to the King by name, her meaning was clear. Her incendiary comments included saying that the King would not drop dead soon enough, that he was cursed by people all over the country, that he did not love the people as they loved him and that he had a cruel mind. She accused him of being jealous of Thaksin, because Thaksin's populist policies won the love of the people, and suggested that the King would orchestrate a coup any time he felt threatened by a ruler. She bolstered her argument with a historical reference, saying that the King and Queen were not of sound mind, as they believed Thaksin was the reincarnation of King Taksin (note: the final ruler prior to the current Chakri dynasty). ¶9. (C) Her final speeches on July 18-19 reached a new level of incitement, when Daranee made several references to historic incidents of regicide, including the 1946 death of King Rama 8, which led to King Bhumibol assuming the throne. While she did not directly accuse the King of murdering his brother, she referenced not finding who had gunpowder residue on his hands, and alluded to a palace conspiracy that included the destruction of evidence and a cover-up. Similarly, she clearly faulted the King for the "company he keeps," calling the King and Prem thieves. She depicted the monarchy as having to choose between two paths, either to BANGKOK 00002342 003.2 OF 005 follow the example of countries such as Japan or England, or "end up in the same ordeal as encountered by Russia, where all the royal family members were killed, or by France, where the royal family members were guillotined, or by Nepal, where people rose up to slaughter the entire royal family." ¶10. (C) Daranee's lawyers confirmed that the police had actual recordings of all of the speeches and had submitted them as the primary evidence used against her. The audio file of the July 18-19 speeches available on YouTube confirm the content as described by the Public Prosecutor's complaint. CASE CLOSED, AND COURTROOM CLOSED TOO -------------- ¶11. (C) Given the overwhelming evidence they had against the defendant, the RTG's handling of the case indicate the nervousness with which they approached Daranee's case and the explosiveness of her anti-monarchy rhetoric. Defense lawyers Krisadang and Prawet enumerated a multitude of procedural issues; the primary three were the denial of bail, the closure of the trial, and the presentation of evidence. ¶12. (C) Daranee's request for bail had been denied five times over the past year her lawyers told us, despite extenuating medical circumstances; she suffers from a painful molar abscess and has not been allowed to have it treated since she was detained. This condition makes it difficult for her to eat and to speak, and she has lost 30 pounds while in detention, according to a friend who visited her. According to her attorneys, the court provided little legal basis for denying bail. The attorneys contend that, although expectation of further lese majeste violations might be a permissible reason for denial of bail under Section 108/1 of the Criminal Procedure Code, adding additional charges would have been an appropriate response to this concern. ¶13. (C) Additionally, the president judge closed the trial to the public, citing national security concerns. The case was originally intended for open trial, as virtually all lese majeste cases are. According to her lawyers, the media planned to attend and report on the proceedings starting June 23 before the judge instructed the prosecutor to request that the trial be closed. Daranee issued a press statement the next day, decrying both the denial of bail and the secret nature of the proceedings, saying: "Although I have no trust in the justice process, it could help reveal facts and my innocence to the public should the trial be conducted in open and in accordance with international principles." ¶14. (C) Thailand's 2007 Constitution, Article 40 guarantees the right to a fair and public trial. Section 177 of the criminal code allows for closure of a trial "in the interest of the public order or good morals, or in order to prevent secrets concerning the Security of the State from being closed to the public." Daranee's attorneys raised this constitutional issue on three occasions: after the panel of judges made the initial order to close the trial on June 23, 2009; through a petition to put the trial on hold until the Constitutional Court reviewed the matter; and most recently on August 27, 2009, requesting Constitutional Court review before the announcement of a verdict, claiming the prior determinations and the closure of the hearing were prejudicial to their client. All three requests were denied. The lawyers have again appealed the closed trial to the Constitutional Court and plan to request a new open trial if they are successful. OTHER QUESTIONS, OTHER THEORIES -------------- ¶15. (C) Daranee's counsel also related a variety of evidentiary issues that they found to be either objectionable or risible. They were not allowed to hear the recorded speeches that were the heart of the prosecution's case against her before they were played in court. Further, the police were not able to produce any witnesses who were at Sanam Luang during the speeches. Instead, the prosecution produced a lawyer affiliated with the police station who testified that he had listened to the recording and said that it sounded like a lese majeste violation to him. This "expert testimony" was countered by the defense by one of BANGKOK 00002342 004.2 OF 005 their witnesses, a graduate student at Thammasat University who had been at the rally, and who said that he interpreted Daranee's statements as criticism of the elites and the ruling class, not the monarchy. ¶16. (C) Both Professor Suthachai and longtime Thailand observer Bill Klausner opined that the court may have been less concerned about the public hearing the content of Daranee's speech during the course of the trial than subsequent applause by her listeners. Other theories for the unusual measures used in Daranee's case include: her rudeness, specifically the derogatory and profane language she used; her defiance in refusing to plead guilty, apologize or display remorse for her statements; the location of the rallies at Sanam Luang, the "Royal Field." Her attorneys alleged to us that the trial judges were specifically directed to find her guilty and to issue the lengthy sentence by the senior members of the judicial community, who consider themselves the protectors of the monarchy and anticipate serving on the Privy Council when they retire from the judiciary. ¶17. (C) While other free speech activists and Daranee supporters did not subscribe to that sort of conspiracy theory, they do concur that the courts see themselves as having a special role in safeguarding the King. In order to do so, they claim there is a pattern of judges and police pressuring lese majeste defendants in other ways. Prachatai editor Chiranuch Premchaiporn and SameSky.com webmaster Thanaphon, both currently under investigation after being charged with lese majeste, discussed with us the current police practice of strongly encouraging those charged with lese majeste to plead guilty, show remorse and throw themselves on the mercy of the court. This message is reinforced by the reduction in sentences commonly given to those who follow this tactic, like Suwicha Thakhor, whose jail term was reduced from 20 to 10 years when he was sentenced in April for postings on the internet. 18 YEARS - HARSHER THAN USUAL OR PAR FOR THE COURSE? -------------- -------------- ¶18. (C) In the context of Thailand's lese majeste convictions, Daranee's 18 year sentence is not that remarkable. The current law provides for 3-15 years per charge. Recent sentences include Suwicha's initial 20 years, Swiss national Oliver Jufer for 10 years in 2007, and Australian Harry Nicolaides for six years in January. Daranee did not get the maximum per charge, receiving six years for each incident, but some human rights lawyers, such as Thongbai Thongpao, feel that the cumulative 18 years goes beyond the spirit of the law, and that she should therefore receive no more than 15 years. ¶19. (C) Esteemed lawyer Thongbai has significant historical perspective on the law, having represented numerous lese majeste defendants. In all of his many cases, he told us September 1, he has only managed to secure one acquittal, and that was primarily because of a legal technicality. In terms of the severity of sentencing, he cited many examples of four year sentences for what he considered trifling acts: a man was convicted for suggesting that it was not necessary to hang the photos of the King and Queen in a meeting room; a newspaper columnist was jailed for ending his column with the quote, "In the land of the blind, the one-eyed man is King." The crux of the matter for Thongbai is that the lese majeste sentencing is as inequitable as the application of the law generally. Boonyuen Prasertying, another red shirt activist charged in 2008 for her speeches on Sanam Luang, received a 12 year sentence in November 2008, which was reduced to six because she confessed and turned herself in. ¶20. (C) Compounding the issue of the length of her sentence, Daranee has reportedly been suffering through her prison experience. Prachatai.com reporter Muthita Chuachaeng has visited her in prison on several occasions and told us that both Daranee's physical and mental condition were not good. Daranee described the guards and other prisoners as hostile to her, and feared that harassment and possible violence would only increase post-sentencing. In Thailand's jails, prisoners are dependent on family members for assistance and support, and Daranee's only relative able to help is an older BANGKOK 00002342 005.2 OF 005 brother in Phuket who is not able to visit frequently. With virtually no hope of pardon or commutation, given her defiance, Daranee's only hope is the regular appeals process, and the chance that the Constitutional Court will decide to address the issue of her closed trial. JOHN