Some good news for freedom of speech

Some good news for freedom of speech

Media microphones are seen during a press conference led by a political party in the capital. (Photo: Reuters)
Media microphones are seen during a press conference led by a political party in the capital. (Photo: Reuters)

The World Press Freedom Day, concurrently May 3, was celebrated recently with a panel discussion at the Foreign Correspondents' Club of Thailand, which provided a fresh opportunity to catch up with news, especially on Thailand. It was also an occasion to reflect on international developments concerning the shrinking space for the free flow of information ("info-inhibition") in various settings.

There are at least three items of good news for Thailand. Firstly, from one source of international press ranking, freedom of expression has improved. The current advance towards a national election is enjoying more space for a discourse of a more liberal kind, including on various sensitive issues such as lese majeste and institutional reforms, hopefully relegating the prolongation of non-democratic elements to the past (and not the future).

Moreover, the country is a member of international treaties which guide the preferred way of protecting the right to freedom of expression. While this right is not absolute, under the International Covenant on Civil and Political Rights to which the country is a party, there are only two possible limitations on the exercise of this right, namely, on the one hand, defamation and the other hand, national security, public order and public health. However, those limitations cannot be arbitrary and must abide by international standards, including the need to have a transparent law to justify the limitation and to be necessary and proportionate to the threats.

The third positive development is that in some situations where constraining laws are invoked against freedom of expression and related freedom of peaceful assembly, national courts have acted to dismiss the cases and exonerate the defendants (who tend to come from human rights advocates and political opposition). An astute tool employed by the country's Constitutional Court is to cite Section 26 of the current constitution, which lays down four limitations where the state seeks to restrict rights and freedoms. The authorities must prove that they comply with the rule of law, that the restriction respects human dignity, that the limitation is necessary to respond to the risks and that the said constraint is proportionate to the circumstances.

Consequently, for example, the Court overruled an order from the junta after the 2014 coup, which was tantamount to a retroactive criminal law. The order had imposed a criminal sanction on those who failed to comply with orders from the junta, backdated to a time before the issuance of the order itself. This order was found to contravene the general principle of legality whereby retroactive criminal law is invalid, as it is unjust and creates uncertainty. A number of lese majeste cases have also been dismissed by the courts through judicial reasoning and screening. The preferred message is that the authorities should desist from invoking these laws and drop charges, pending discussions concerning reform.

In contrast with those constructive developments, there are key areas of concern. Firstly, the country suffers from over-legislation with too much discretion in the hands of the authorities. The range of ambivalent laws varies from the national emergency decree and martial law, which are still employed in southern Thailand, to criminal defamation law, computer crimes law, public assembly law, and lese majeste and sedition laws.

Secondly, early this year, civil society sources reported about 1,900 political cases of persons prosecuted under the restrictive laws mentioned. Currently, some 280 children under 18 years of age are also prosecuted thereunder. A major worry is the invocation of the emergency decree and Section 112 of the Criminal Code on lese majeste against some of these children. Both nationally and internationally, there have been calls not to use such criminal laws against children, and the authorities should desist from applying these laws. If action is needed to deal with the children, there are more child-responsive laws available, such as the country's Child Protection Act which offers various social protection measures instead of criminalisation of children's expression and conduct.

The third concern is the multitude of prosecutions of human rights defenders and environmentalists, many of whom are women, when they criticise various actions on the part of the business sector. These cases are known as Strategic Litigation against Public Participation, and the shrinking civic space is due partly to "domino" prosecutions of those who merely retweet messages concerning grievances. Currently, the country has new laws, such as the amended Criminal Procedure Code's sections 161/1 and 165/2, which enable the judiciary to screen out cases, paralleled by similar action from prosecutors, but they have not been utilised adequately to contain that regrettable wave. The judiciary, prosecutors and business peers and partners should be encouraged to help safeguard and maximise democratic space.

Bearing on the above, a key anomaly emanating from the morass of draconian laws is the unjust application of the criminal defamation law by both the public and private sectors to constrain expression, resulting in censorship and self-censorship beyond what is permissible internationally.

Interestingly, the UN Secretary-General's most recent report on the challenge of disinformation or intentionally distorted information calls for more and not less information, as well as independent and plural media and an educated and discerning public, together with the need for the business sector to undertake due diligence measures, such as periodic human rights impact assessments, to ensure transparency and fair play.

The UN, especially through Unesco, OHCHR, Unicef and UN country teams, is thus in a position to call for a global moratorium on the criminalisation of children's freedom of expression. Criminal laws such as the emergency law, computer crimes law, lese majeste, and sedition laws should not be invoked against children. This is the needed prologue to open the door to debates on review and reform.

More ambitiously, the global community should opt for a global moratorium on the application of criminal Defamation Laws generally. Defamation should be dealt with, at most, as an issue of civil liability, with an openness to truth and fair comment, rather than as a pretext for criminal sanction -- at times, cumulatively with decades of imprisonment and even capital punishment.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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