Truth on Trial in Thailand

Defamation, Treason, and Lèse-Majesté

David Streckfuss

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136942020
• Edition: 1
• Topic: History
• Subtopic: Asian History
• Index: History

Since 2005, Thailand has been in crisis, with unprecedented political instability and the worst political violence seen in the country in decades. In the aftermath of a military coup in 2006, Thailand's press freedom ranking plunged, while arrests for lèse-majesté have skyrocketed to levels unknown in the modern world. Truth on Trial in Thailand traces the 110-year trajectory of defamation-based laws in Thailand. The most prominent of these is lèse-majesté, but defamation aspects also appear in laws on sedition and treason, the press and cinema, anti-communism, contempt of court, insulting of religion, as well as libel. This book makes the case that despite the appearance of growing democratization, authoritarian structures and urges still drive politics in Thailand; the long-term effects of defamation law adjudication has skewed the way that Thai society approaches and perceives "truth."

Employing the work of Habermas, Foucault, Agamben, and Schmitt to construct an alternative framework to understand Thai history, Streckfuss contends that Thai history has become "suspended" since 1958, and repeatedly declining to face the truth of history has set the stage for an endless state of crisis.

This book will be of interest to students and scholars of South East Asian politics, Asian history, and media and communication.

David Streckfuss is an independent scholar who has lived in Thailand for more than 20 years. His work primarily concerns human rights, and political and cultural history.

1
The truth recently discovered

What is the set of defamation-based laws designed to do? What are these laws protecting? In what kinds of cases does the state feel the need to play a part? The laws that employ the “defamation principle”—laws involving insult, slander, and libel—are peculiar legally because they do not address the question of truth at all. They are crimes primarily of words adjudged by their potential effect, and according to the motives of their authors. There is no evidence in the normal sense of the word, no issue of alibis, material evidence such as fingerprints or DNA, or mitigating circumstances. There are but the words, and the suspected intention. If the crime of defamation succeeds, it succeeds in the minds of those who heard or read the scurrilous words.

First and foremost this class of crimes is only secondarily (or sometimes never) concerned with the truth of the words. Defamation is a crime designed primarily to protect reputations—of individuals, collective entities, companies, governments, national symbols, institutions; defamation is not designed to produce the truth.

In historical terms, society’s acquaintance with truth in cases of defamation has been relatively recent. It is worth noting that it was only possibly in the 1735 John Peter Zenger trial that truth was allowed as a defense in libel suits. Zenger, a journal publisher in the British colony of New York, had published the following sentiment:¹

The Assembly ought to despise the smiles or frowns of a governor; that he thinks the law is at an end; that we see men’s deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the legislature; that it seems that trials by jury are taken away when a governor pleases; and that none can call anything his own longer than those in the administration will condescend to let him do it.

For these words, Zenger was tried for “being a seditious person; and a frequent printer and publisher of false news and seditious libels, both wickedly and maliciously devising” of the Governor of New York, whom he aimed “to traduce, scandalize, and vilify.” Zenger brought “into suspicion and the ill opinion of the subjects of the king residing within the Province” the Governor and all members of his administration. Specifically, on the 28th of January, Zenger “did falsely, seditiously, and scandalously print and publish, and cause to be printed and published, a certain false, malicious, seditious, scandalous libel entitled The New York Weekly Journal.”

At the time, the common (and only?) defense was to deny responsibility in publishing the alleged libel. So it was with great surprise that Zenger’s lawyer, Andrew Hamilton, freely admitted that his client had in fact published the libel, but added that he saw no reason “to deny the publication of a complaint, which I think is the right of every freeborn subject to make when the matters so published can be supported with truth.”

With confession in hand, the prosecutor proclaimed:

I think the jury must find a verdict for the king. For supposing they were true, the law says that they are not the less libelous for that. Nay, indeed the law says their being true is an aggravation of the crime.

But Hamilton countered with a revolutionary suggestion: if his client is to be found guilty, it must be demonstrated that “the words themselves” were “libelous that is, false, scandalous, and seditious or else we are not guilty.” Therefore, Hamilton argued, he and his client would “prove those very papers that are called libels to be true.” The Chief Justice protested, “You cannot be admitted, Mr. Hamilton, to give the truth of a libel in evidence. A libel is not to be justified; for it is nevertheless a libel that it is true.” Why is it in cases of libel, Hamilton then asked, that truth could not be brought before the court? For all other crimes, such as murder or assault, it is. He knew, of course, that “it is said that truth makes a libel the more provoking.” Why, he wondered, would a libel that is closer to the truth be punished more harshly than a libel that is a falsehood? How could the truth bring even greater punishment?

For would it not be a sad case if the judges, for want of a due information, should chance to give as severe a judgment against a man for writing or publishing a lie, as for writing or publishing a truth? And yet this, with submission, as monstrous and ridiculous as it may seem to be, is the natural consequence of Mr. Attorney’s doctrine that truth makes a worse libel than falsehood, and must follow from his not proving our papers to be false, or not suffering us to prove them to be true.

The Chief Justice read aloud from a law book:

It is far from being a justification of a libel that the contents thereof are true, or that the person upon whom it is made had a bad reputation, since the greater appearance there is of truth in any malicious invective, so much the more provoking it is.

Hamilton asked the jury to take note that “we are denied the liberty of giving evidence to prove the truth of what we have published” and that “the suppressing of evidence ought always to be taken for the strongest evidence.”

From our modern perspective, everything seems counterintuitive: the truer Zenger’s allegation, the greater the crime and the greater zeal to suppress such truth. As we shall discover in this volume, as with most defamation cases, the focus always comes to rest on intention and potential effect. Hamilton asked what exactly was the “standard rule” in determining malice or a breach of the peace? Who is to say if the words in question are defamatory? Or that they “tend to the breach of the peace”? The prosecutor consulted a law text for the answer: it is libellous if a scandal “is expressed in a scoffing and ironical manner,” in a way that “is expressed in direct terms.” Concluded the prosecutor, “I think nothing can be plainer or more full than these words.” Hamilton argued that there “still occurs some uncertainty,” to wit, “what words are scandalous, and what are not,” for the prosecutor has contended that the words in question “may be scandalous, whether true or false.” When coming to intentions, Hamilton asked,

How shall we know whether the words were spoken in a scoffing and ironical manner, or seriously? Or how can you know whether the man did not think as he wrote? For by your rule, if he did, it is no irony, and consequently no libel.

The Chief Justice chided Hamilton, “Do you think it so hard to know when words are ironical or spoken in a scoffing manner?” Hamilton answered, “I insist that the only rule by which to know is – as I do or can understand them. I have no other rule to go by but as I understand them.” As such, continued Hamilton,

[It] follows that these twelve men must understand the words in the information to be scandalous—that is to say, false. For I think it is not pretended they are of the ironical sort. And [only] when they understand the words to be so, they will say that we are guilty of publishing a false libel, and not otherwise.

The Chief Justice countered:

No, Mr. Hamilton, the jury may find that Zenger printed and published those papers, and leave it to the Court to judge whether they are libelous. You know this is very common. It is in the nature of a special verdict, where the jury leave the matter of the law to the court.

Zenger’s trial was less than a century after the abolition of the Star Chamber, the special court of the English kings notorious for its swift, arbitrary, and sometimes horrific punishments. “It is true in times past it was a crime to speak truth,” said Hamilton and quoted the phrase that “the practice of informations for libels is a sword in the hands of a wicked king” (original emphasis).² Now, Hamilton argued in his final statement to the jury, “Truth ought to govern the whole affair of libels.” He called to the conscience of the jury to make the right decision, so that all people

will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power … by speaking and writing truth.

Despite the Chief Justice’s strong recommendation to the contrary, the jury decided in favor of Zenger and a new principle entered the world of the printed word: the truth can be told. In this long-ago trial, all of the dynamics that characterize defamation cases today were apparent: the degree to which the truth may be registered, the difficulty of reading the minds of people and discerning intention, the ever shifting sands of words and their meanings.

In the newly independent United States, it did not take long for measures to muzzle the press and suppress the freedom of expression to appear. Section 2 under of the Aliens and Sedition Act of 1798 must be one of the most outstanding expressions of a wide-reaching defamation measure:

That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States … then such person … shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.³

However, Section 3 did allow an exemption:

That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

In November of 1907, Abdul Hamid, the Sultan of Turkey, used an increasingly popular legal device to silence foreign critics. He instructed his ambassador to France to bring a lèse-majesté suit against the editor of La Revue, essentially libel of His Majesty. A few years prior, the newspaper had accused the Sultan, among other things, of being “responsible for the assassination of about 300,000 Armenians.” Such a libel, the Sultan had calculated, should be worth 500,000 francs in damages. The editor of La Revue, M. Jean Finot, would, before a jury in Seine, have to “show cause why he should not apologize” to the Sultan. M. Finot had earlier heaped further abuse, claiming that “it is materially impossible to offend a personage such as the Sultan.” Witnesses summoned to testify included Emperor Wilhelm of Germany, a wide assortment of ambassadors and government ministers, and even the French Prime Minister, Georges Clemenceau.⁴ Eight years after initiating the suit, Turkey killed hundreds of thousands more Armenians.

Nearly a century after the Sultan sued for lèse-majesté, in early 2005, the Turkish writer, Orhan Pamuk, said in an interview that Turkey had killed 30,000 Kurds and 1,000,000 Armenians. The truth had to come out and Turkey had to face its own history, said Pamuk, telling the BBC that, “What happened to the Ottoman Armenians in 1915 was a major thing that was hidden from the Turkish nation; it was a taboo. But we have to be able to talk about the past.”⁵ A lawyer, Kemal Kerinçsiz, filed a complaint with the police, and, obligingly it seems, the Turkish government introduced a new penal code provision, Article 301, which read:

1 A person who publicly denigrates Turkishness, the Republic or the Grand National Assembly of Turkey, shall be punishable by imprisonment of between six months and three years.

2 A person who publicly denigrates the Government of the Republic of Turkey, the judicial institutions of the State, the military or security organizations shall be punishable by imprisonment of between six months and two years.

3 In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third.

4 Expressions of thought intended to criticize shall not constitute a crime.⁶

The government then retroactively charged Pamuk for violation of Article 301 and for apparently insulting the armed forces of Turkey. A number of other writers were charged for violating Article 301 as well. In January 2006, the case against Pamuk was dismissed for technical reasons. Kerinçsiz was not satisfied, saying, “Orhan Pamuk must be punished for insulting Turkey and Turkishness, it is a grave crime and it should not be left unpunished.” Later the same year, a Turkish-Armenian journalist was found guilty of Article 301, and then assassinated. Unable to persuade the court, apparently Kerinçsiz turned to other measures. He was arrested in early 2008 for being part of an ultranationalist group that allegedly planned to assassinate various public figures, including Pamuk.⁷

The law’s wording, though, was legally nebulous. Admitted a Turkish government minister later, there were “certain problems” with the article. The government amended the law, changing “Turkishness” to “Turkish nation,” reducing the maximum punishment to two years, and, requiring the Ministry of Justice to grant permission before a case could be filed.⁸ This amendment was due in part to pressure from the European Union, to which Turkey had applied for membership. Some citizens of Turkey quite rightly challenged the hypocrisy of the EU by pointing out that many members had laws similar to Article 301. Germany’s Section 90 punishes “Disparagement of the State and its Symbols” with up to three years’ imprisonment. Article 292 of the Italian law...