The case of Ms. Patnaree or the mother of pro-democracy activist, Ja New, has taught us a valuable lesson as to what [narrow] extent the individual’s privacy in an online context is being respected by Thai authorities.
Photo from Page Banrasdr Photo
Apart from the reconfirmation that Thailand’s lèse majesté charges can be manipulated and used as political tool by both military and police, the case has triggered an important question about how evidence consisting of a conversation from an online message between Burin and Patnaree could be obtained by the police. Such ambiguity prompts negative effects on the state of privacy and the overall perception of the justice system in Thailand under the control of the National Council for Peace and Order (NCPO).
Albeit the endorsement of numerous laws in the guise of national security, many of them are merely perceived as military’s political tools. These include the use of article 44, the 2014 temporary Constitution to justify the enforcement of head of NCPO Order 3/2558 regarding the 7-day period detention of the suspects without charges and the power beyond the limit permitted by criminal code and human rights laws to conduct search and seizure operation of the private assets.
Observation: Acquisition of digital evidence prior to the charge
On 27th April, 2016, Burin, a pro-democracy activist, was taken into custody by the police from the demonstration site led by Resistant Citizen group at victory monument in Bangkok without being informed about the reason. Burin was temporarily detained at Payatai police station before he was transferred to the 11th Army Circle base facility near the old town area.
Two days later, the deputy director of Technology Crime Suppression Division (TCSD), Royal Thai Police, obtained the arrest warrant for Burin’s case from the military court. Burin was then arrested for lèse majesté case. Few days after, the police obtained another arrest warrant for Ms. Patnaree. She was then charged and arrested as an accomplice in lèse majesté case or the violation of article 112 of the Thai Criminal Code together with Burin. In both cases, the police only rely on digital evidences obtained from Burin and Ms. Patnaree’s private chat on Facebook.
The authorities have not yet revealed by what legal or technical means have been used to obtain such digital evidence. However, an unofficial statement from the police officer during the charging process confirmed that the evidence was acquired simply through interrogation whereas Burin himself gave the police his Facebook password.
In principle, the authority can legally obtain an access to personal data and seize the communication assets such as mobile phone or computer for investigation purposes using the power granted by section 18 and 19 of the Computer Crime Act 2007 as follows.
Article 18: The competent official can verify, access and summon equipment for storing computer data and traffic data for the purpose of investigation and inquiry, in the case where there is reasonable ground to believe that an offence has been committed and in so far as it is necessary to collect evidence concerning to the offence or to ascertain the offender.
Article 19: In exercising his power, the officer has to receive permission from the competent court via a successful motion application. After the motion is granted, the competent official, before issuing the order of the court, shall send a note identified the cause of using the power to the owner or occupant of computer system. The competent official in chief shall send a detailed note as evidence including the reason for the operation to the competent court within 48 hours after the execution.
These two above provisions limit the power of the officer to seize or summon equipment for storing computer data only where there is a reasonable ground to believe that the owner of such equipment has committed the offence.
Nevertheless, in case of Burin, how could the authority foretell that lèse majesté has been committed in a private space like Facebook chat unless Burin or Ms. Patnaree provide that information to the authority? Whereas this exception exists, Ms. Patnaree’s charge for accomplice in lèse majesté case confirms that self-incriminating statement was not a rational option.
Hence, the first plausible argument is that the authority illegally accessed Facebook account of Burin without receiving permission from the court. Whereas the second argument settles that the court has issued such permission to the authority, what are the reasonable grounds that led the court to believe that the lèse majesté crime was to be committed by Burin and Ms. Patnaree is still in question.
While the authority argues that the access to private chat message was assisted by Burin himself as he was claimed to have given his Facebook account password to the authority during the interrogation, this argument has raised the essential question among the media and critics: what are the provisions in Computer Crime Act 2007 that allowed the authority to request such information, what was the method of interrogation used by the officer and whether that method used falling within the scope of domestic laws. Nevertheless, the report points out that the interrogation was carried out without the presence of the suspect’s legal representation and under incommunicado condition.
People should be able to freely criticize the state and even though the state obliges to protect their rights to privacy.
Try to imagine a life in a state where the authority could search and seize civilian’s assets and take them into custody at will without informing them on charges and allowing them to have a legal representation. Even though there is no conclusive evidence about how the authority has [mis] carried out justice in the case of Burin and Patnaree, the nature of the investigation process is sufficient to reflect the injustice and raise a question about its legality.
Right to privacy is a human right. It has been recognized by internationals treaties including the Universal Declaration of Human Rights (UDHR), article 12, to which Thailand is a state party. The provision prescribes “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everone has the right to the protection of the law against such interference or attacks.”
Privacy right is also guaranteed by the International Covenant of Civil and Political Rights, article 17, which stipulates, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
Hence, the state has an obligation to respect legitimate exercise of the right to privacy. By practicing this, in parallel, the right to freedom of expression will also be respected. In a free society, civilians should not live a life filled with fear even though they are the critics of the state.
How can we rely on the decision of the court when the acquisition of the evidence is far from being transparent?
An unfair justice process does not yield only negative repercussions to the exercise of the right to individual’s privacy in the state; it also stains the overall justice system with doubt and distrust. In this context, the method of evidence acquisition that is not up to the standard indicates poor quality of evidences acquired that should not be allowed to use as proof in court.
Nevertheless, in the past, Thai courts have dismissed some lèse majesté cases. In Surapak case, the defendant could prove that digital evidences used against him in connection to lèse majesté Facebook page were weak. This is because it was impossible to link the identity of the creator of the online page to his identity.
Due to this, the case was overturned by the Supreme Court based on insufficient evidence to support the authority’s claim that Surapak committed lèse majesté on his Facebook page. While there was no record displaying that Surapak was logged onto his Facebook or email account on the seized computer evidence, there was a record of usage of computer evidence after the defendant was placed under police detention. This fact has undermined the credibility of digital proof gather by the police.
In Surapak case, the court stressed on a sensitivity of lèse majesté case by pointing out that this type of case does not yield only criminal liability but also create a social stigma to those who considered a suspect. Therefore, the evidence analysis and gathering process of lèse majesté cases must be conducted carefully and thoroughly. The imposition of capital punishment on the defendant with weak evidences is not only unfair to the defendant but also create a rift in society. Nonetheless, Surapak was detained for one-year period during the trial.
The above observations from Surapak and Burin-Patnaree cases have raised questions about the role and integrity of the court. When the court of justice permits the use of weak evidences against the defendant in severe punishment cases like lèse majesté, how will this practice affect the quality of justice as well as will it foster even greater distrust of the criminal justice system in particular when a number of civilian cases are subject to military court and many of the defendants are government opposition.