"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)

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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
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

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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

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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

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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

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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