The Phuketwan trial: an insidious prosecution of free expression
An opinion piece by Kingsley Abbott, ICJ International Legal Adviser for Southeast Asia
The trial of two Thailand-based journalists from the online news outlet, Phuketwan, accused of criminally defaming the Royal Thai Navy, appeared to be a very sabai sabai affair as I monitored the trial for the ICJ between 14 and 16 July in Phuket, Thailand.
But beneath its calm surface, the proceedings were part of an insidious and exceptional legal battle, as a government institution – the Royal Thai Navy – sought criminal punishment for the defamation of its reputation.
The presiding judge was not antagonistic toward the defence, and I observed no obvious procedural irregularities during the trial.
Initially, eight defence lawyers faced off against a sole prosecutor. However, on the morning of the second day the prosecutor notified the Judge that she had no questions for the defence witnesses and disappeared for the remainder of the trial.
On 17 July 2013, Phuketwan published an article that contained a paragraph reproduced from a Pulitzer award winning Reuters article that alleged that ”Thai naval forces” were complicit in the smuggling of Rohingya, a persecuted ethnic minority from Myanmar.
In December 2013, the Royal Thai Navy reacted by filing a complaint against Big Island Media, the parent company of Phuketwan, and the two Phuket-based journalists, Chutima Sidasathian and Alan Morison (photo), alleging criminal defamation under the Thai Criminal Code and violation of Article 14 of the Computer Crimes Act.
The maximum penalties for these crimes are two years and five years imprisonment, respectively.
No charges have been laid against Reuters.
Numerous governments, UN agencies and human rights groups, including the ICJ, have called for the charges to be dropped.
Article 19 of the International Covenant on Civil and Political Rights, to which Thailand is a State Party, guarantees the right to freedom of expression, which includes the right to impart information.
Defamation laws should never be used to criminalize free expression, particularly when the expression involves criticism of public authorities, made without malice and in the public interest, as was undoubtedly the case here.
To guard against such violations of freedom of expression, the UN Special Rapporteur on Freedom of Expression, the Human Rights Committee, the ICJ and other international experts have urged states to abolish criminal defamation entirely.
This case comes against the background of international furor surrounding the discovery of mass graves allegedly linked to traffickers on both sides of the Thailand-Malaysia border and the horrific plight of thousands of Rohingya and Bangladeshis who were found adrift in the Andaman Sea.
Still, the Thai government has pursued the case, which was one of the facts noted by the US State Department when it gave Thailand the lowest rating for the second year running, Tier Three, in its influential 2015 Trafficking in Persons Report.
There has been speculation that the low-key (and eventually, nonexistent) prosecutorial presence suggests the Government is not pushing the case hard, but according to experienced Thai lawyers, the prosecution sometimes leaves a trial when it is confident of its case.
The four witnesses for the prosecution mostly testified about the administrative aspects of the case: the first was the Navy officer who made the complaint, while the other three were the police officers who received and acted upon it.
The investigation appeared to have been rather superficial. For example, the police did not interview anyone other than the two Phuketwan journalists, and had not checked the Thai translation of the article relied on by the Navy which erroneously translated “Thai naval forces” into “Royal Thai Navy,” this being a key part of the defence case.
While waiting for the arrival of the final prosecution witness, the Judge asked one of the journalists, Chutima Sidasathian, why the case had not settled at a mediation facilitated by the National Human Rights Commission.
She answered that despite their best efforts to reach a settlement, she and her co-accused were not prepared to apologize for exercising their journalistic duty to report on matters in the public interest, especially when the facts were reproduced from the story of another news agency.
During the trial, both sides said there was no animosity between the Royal Thai Navy and Phuketwan, which has regularly reported favorably on the Royal Thai Navy’s activities.
Earlier this year, Chutima Sidasathian, who is studying for a Ph.D on the Rohingya, had been asked by the Prime Minister’s office to advise it on the Rohingya crisis.
The defence presented their case through seven witnesses, including the two journalists.
Their evidence sought to establish that the journalists were merely exercising their duty to report on matters in the public interest, that they had never intended to defame the Royal Thai Navy but had simply reproduced a passage from a Reuters article that referred to “Thai naval forces” not the Royal Thai Navy who were therefore not a damaged party, and that the Computer Crimes Act was never intended to apply to cases of this kind.
As the prosecutor was absent during the entire defence case, this evidence was not challenged.
The accused, their Thai media colleagues, and the international community now await the verdict, which will be delivered on 1 September 2015.
Regardless of the outcome and based on the proceedings so far, it is clear that under international law, the Royal Thai Navy and the prosecution must immediately withdraw the charges, and that Thailand’s criminal defamation laws should be scrapped to ensure compliance with its international obligations.
Journalists in Thailand must never again face such ill-founded proceedings, or hesitate to report on matters in the public interest for fear of being unjustly dragged through the courts by the authorities.
Thailand-Phuketwan-News-OpEd-2015-THA (PDF with full text of the opinion piece in Thai)