Section 116: When ‘Sedition’ is used as the obstruction of freedom of expression

 
Have you ever complained with your friends or posted on social network about social problems such as; bad traffic, uneven footpaths, taxis rejecting passengers, long waiting time for buses or even flood issue? Sometimes the complaining may reach to the criticism of the government’s work, which expressed from your feeling or emotions without any other intentions. It may be any general topics, which could be criticized by anyone who faced or affected from the situation.
 
However, the common criticism are going to be prohibitted. The reason is that in the time of National Council for Peach and Order (“NCPO”), the legal measures are used against the one who express their opinions. Many of cases are under the same allegation i.e. the allegation under Section 14 of the Computer Crime Act, or the ‘Sedition’ charde under Section 116 of the Criminal Code of Thailand which apparently applying to everyone who shared his/her political views.
 
 
What is Section 116 or Sedition?
 
Section 116 or what was called ‘Sedition’ is one of the legal provision regarding the offences against the internal security of kingdom, which includes of these following essential elements of the offenses:
(1) Any person/whoever;
(2) makes an appearance to the public by words, writings or any other means;
(3) which is not an act within the purpose of the Constitution or for expressing an honest opinion or criticism in order;
(4.1) To bring about a change in the Laws of the Country or the Government by the use of force or violence;
(4.2) To raise unrest and disaffection amongst the people in a manner likely to cause disturbance in the country; or
(4.3) To cause the people to transgress the laws of the Country
 

This means, if any person does (2) or (3) and its consequences are whichever (4.1) to (4.3), it could be deemed an offence, and this offence has the imprisonment not over 7 years.

 

Though Section 116 is aimed to prevent the expression which affect the national security, but the Section 116 itself allows people to have the right to freely criticize the government mandate, the legislation, the policy issued by government as long as it is a good faith statement or expression under the Constitution. Therefore, whether the expression of the people is a request to revoke or amend the laws or a request to change the government, as long as it is a peaceful expression without the force, those expression is not considered as the offense according to Section 116.
 
 
The ‘Ambiguity’ of Section 116
 
Some of the essential elements of the offence under Section 116 are clear themselves, however, there are some gaps for the other parts which can be interpreted in many aspects such as, the word; ‘To raise unrest and disaffection amongst the people’. It is not certain of what action is considered as the expression against Section 116.
 
For examples, the Supreme Court Decision No. 209/2484 describing that the utilizing of one word in one situation may not cause severe effect. On the other hands, if the same word was used in another place, it may cause the serious effect. This case, the defendant used this word at the border where there is a special situation. The action of the defendant may lead to raise the unrest and disaffection amongst the people in a manner likely to cause disturbance in the country, which considered as the offence.
 
From this Supreme Court Decision, the word the defendant used shall considered as an offence or not depends on the situation when that word is expressed. In general, the speaker and the listener of any messages may have the different perceptions and interpretations e.g. when someone is called ‘ Chubby’, the speaker may think it is a cute word while the listener may feel uncomfortable to be called like that. Therefore, the interpretation of ‘Sedition’ may be dissimilar between the speaker and the listener. Sometime the one who has been charged with sedition may not have a serious intention to ruin national security, but because of the ambiguity of law or the interpretation of the listener itself.
 
 
The examples of Section cases before 2014 coup
 
The data collecting by the Freedom of Expression Documentation Center provides that there are at least 8 cases of the prosecution under Section 116 from 2007 to 22 May 2014 before the coup as follows:
 
 
1. NLA Sit-In: In 2007, 10 NGOs are accused of climbing over the fence of parliment building in order to cease the unjust legislation of NLA. In that period, Criminal Court punished the defendants for gathering against public order and trespass, but dismissed the charges under Section 116 since it is considered as a freedom of assembly and freedom of expression according to the Constitution . The Court of Appeal dismissed all charges.
 
2. DJ Neung: DJ Neung or Chakkapan was accused of inducing the radio audiences to hold a protestby blocking Doiti-Lamphun road on April 12, 2011 during the big political rally of redshirt in Bangkok. The Chiang Mai Provincial Court found him guilty, suspended his sentence for three years as it cannot be proved that the people who did the road blocking are the radio audiences. Moreover, the criminal punishment on the case with political motive is not the solution.
 
3. K Thong Bomb Bangkok: A man under the alias “K Thong” or Pornwat Thongthanaboon announced on Camfrog that there will be bomb explosion in Bangkok in Febuary 2010. The court delivered a verdict to dismissed the charge because the defendant’s accused speech seems to cause its audience panic, but there is no phrase that would incite or provoke disaffection.
 
4. Somchai Paiboon: Somchai gave a speech at the Phan Fah intersection during the red-shirt rally. The Court of the First Instance and the Court of Appeal found him guilty under Section 116 and sentenced him to one year in prison. The reason is, at that time, there are many people armed with guns, steels, logs and used them against the officers which lead to the injury and death of many officers including the damages of government properties.
 
5. Sermsook Kasitipradit: Sermsuk was summoned after spreading rumor about the coup against Yingluck’s government in August 2013.
 
6. General Boonlert Kaewprasit or ‘Se Ai’ the learder of Pitak Siam Protesters was summoned after the rally against Yingluck’s government on Novermber 2012.  
 
7. Anuwat, UDD leader of Nakhon Ratchasima, was charged after giving his fierce speech about separating the country on February 2014.
 
8. Joe Gordon: Joe was arrested under Section 116 together with Section 112. However, the defendant pleaded guilty. The court, then, found him guilty and gave a severest punishment under Section 112.
 
It can be seen that the prosecutions under Section 116 before 2014 coup are related to the significant rally against the government and most of the accused are the influential leaders. The Court will rule the punishment according to Section 116 when it can be proved that the action is fallen into the essential elements of offenses under Section 116 only. On the other hands, the Court will dismiss the case when it cannot be proved that the action of the defendant is considered as the sedition and contradicted to the nation security according to section 116.
 
 
736 เนื้อหาการแสดงออกกับการตั้งข้อหามาตรา 116
 

The utilization of Section 116 after 2014 coup

 
After the coup on 22 May 2014 until 18 August 2017, the prosecutions under Section 116 are increasing. iLaw found that there are at least 66 people accused under this section by 26 cases. The offenses can be categorized by the content of expressions in 6 types: criticizing about 1) coup or NCPO, 2) Lèse-majesté, 3) former prime minister, 4) distorted draft of constitution, 5) rumor of counter-coup, and 6) separating country.
 
Out of 26 cases, there are 20 cases related to the criticism of NCPO, for examples:
 
1. Chaturon Chaisang: Chaturon defied the NCPO order of summoning No.41/2014 by not report on time. Furthermore, he went to The Foreign Correspondents' Club of Thailand (FCCT) and gave his speech to foreign media about the effect of coup on 27 May 2014. The case is still in process of waiting for the first witness hearing.
 
2. Chatchawan was accused of publicizing the picture of a rally against the coup on Manager Online.This news has been reported on website that the rally was on 1 June 2014. Thereafter the photo was considered to be the circumstance on 26 May 2014 but was misunderstood about the date and time. This content is considered as an offence by raising unrest and disaffection amongst the people in a manner likely to cause disturbance in the country and against NCPO Order No. 18/2557. The Military Court later dismissed the case.
 
3. Sombat Boonngamanong: During 30 May – 5 June 2014, Sombat posted several messages via Facebook and Twitter inviting people to protest against the coup. Now, the case is in process of 10th witness hearing.
 
4. Wachira and Sitthitad threw flyers against the NCPO around Democracy Monument on 23 May 2014. Now, the case is in the process of the plaintiff witness hearing.
 
5. Pansak hold the pubic activity called ‘March for Justice’ in order to o call for an end to the trials of civilians in the single-tier military court under the Martial Law. Now, the case is in process of the plaintiff witness hearing.
 
6. Ponlawat disseminated leaflets against the military government in four public places in Rayong Province. The Military Court summoned the first witness, Manit Boonmalert, hearing on this 4th September
 
7. New Democracy Movement: 14 activists of New Democracy Movement were arrested with an allegation of incitment to cause disturbance in the country at the Democracy Monument on 25 June 2015. All 14 arrestees were sent to military court for a provisional detention for 12 days and they were released on 8th July. The court dismissed the 2nd detention. This case is still in the process of investigation.
 
8. Baramee was accused that he provided the accommodation for the New Democracy Movement activists at Suan-Spirit during 24-24 June 2015. This case is now under the investigation.
 
9. Rinda was arrested for posting a message on Facebook accessed Gen.Prayuth and his wife for trying to transfer money to Singapore of more than ten billion Baht. She was held in custody at the Central Women Correction for 3 days before the Military Court released her on bail. The Military Court, then, dismissed the case as it is not related to Section 116.
 
10.Preecha was charged after observed and presented flowers to Pansak, the activist who was leading a ‘March for Justice’. At last, the Military Court dismissed the case under Section 116.
 
11. “Jam” was charged for posting a rumour on Facebook about Ratchapakdi Park corruption scandal and a conflict among top-level military officers. Military Court later granted her on bail with 100,000 baht guarantee.
 
12. Thanakorn copied a diagram of Ratchapakdi Park from Twitter and shared on Facebook. Now, the case is under the investigation. The Military Court appoint the evidence examination on 14 November 2017.
 
13. Tanet posted picture, message, opinion and shared other people’s Facebook with content against many important people in the army. This case is under the investigation. Tanet was once allowed for bail, but he did not present to court as scheduled. Therefore, when Tanet later present and request for bail again, the court did not allow. Tanet, then, become the only accused under Section 116 who was detained during the prosecution.
 
14. Fah Hai TV television station: Ms. Porntipa and other 4 people were accused under Section 116 after broadcasting the program hosted by Pol.Gen. Seripisut Temiyavet. On 18 May 2016, the military prosecutor issued a non-prosecution order because there was no exact fact which proved that the accused did anything to violate Section 116.
 
15. Eight administrators of Facebook page ‘We love General Prayuth’: 8 persons created the Facebook page where there are many montage photos against the government. 8 individual were detained for 12 days, after the Military Court dismissed their bail petition on the ground that the circumstance of case was severe. However, on 10 May 2016, the Military Court released all 8 accused persons on bail with 200,000 baht deposit for each. Now, the case is under the investigation.
 
16. Ms, Sirikan Charoensiri or ‘Lawyer June’ and Sulak Sivaraksa allegedly joined the anti-coup rally with the New Democracy Movement.
 
17. Pravit posted 5 messages on his Facebook criticized the trial of Yingluck Shinawatra and the handling of flood in Sakonnakhon and Sukhothai.
 
18. Pravit posted a messages on his personal Facebook account commented on the draft constitution and questioned to junta leader General Prayut to 4 per sessions which considered as the criticism of NCPO’s works.
 
19. Watana posted a message on Facebook about the verdict in Yingluck’s case regarding her alleged negligence in managing her government’s rice-pledging scheme.This may mislead people that NCPO uses the authority and justice process against Watana which considered as the abuse of human rights.
 
20. Wattana: Wattana posted a message on Facebook about the removal of a historic revolutionary plaque. The message was criticizing on the government’s duty regarding the upkeep of the area where the plaque was put up. However, when the plaque is removed, no responsibility seemed to be carried out.
 
 
It can be seen that from the above 20 cases, the accused in some cases did not have the intentions to raise unrest and disaffection among people. It is only the expression towards the government works or government authorities which everyone can do.
 
Lastly, due to its ambiguity, this legislation becomes the government tools and causes the burden to the people. Since the offense under Section 116 is the offense relating to the security of the Kingdom, the security for bail is high. When the process of prosecution takes a long time, the people, who wish to express their opinions criticizing the government, have to dedicate themselves against the prosecution instead.