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Standing Up to a 171-Year Prison Sentence—For Facebook Posts
Thai human rights lawyer Prawais Praphanukul in detention, September 2017 (Prachatai / Flickr)
By Tyrell Haberkorn February 7, 2018
Dissent Magazine
On the morning of April 29, 2017, Thai soldiers came to the Bangkok home of Prawais Praphanukul, a fifty-seven-year-old lawyer, and arrested him. They seized his computer and mobile phone. He spent four days in military detention, incommunicado, before being transferred to custody of the police’s Technology Crime Suppression Division. Only then did Prawais see the warrant for his arrest and the lengthy list of accusations against him: ten counts of violation of Article 112, or lèse majesté (insulting, defaming, or threatening the monarch), for allegedly insulting Maha Vajiralongkorn, or Rama X, who became king upon his father’s death in October 2016. He was also charged with three counts of violation of Article 116, or sedition. At the heart of his alleged crimes are thirteen Facebook posts.
If found guilty, Prawais could be sentenced to 171 years in prison. In early May, he was transferred from military detention to the Bangkok Remand Prison. All of his requests for bail were denied, and his first appearance before the Criminal Court to enter a plea and schedule witness hearings was held in September 2017.
I first met Prawais, a long-time human-rights and criminal lawyer, at the lèse majesté case of journalist Daranee Charnchoengsilpakul. Before his arrest, he often took on cases that other lawyers were afraid to touch, like Daranee’s, nicknamed “Da Torpedo” for her fiery speech. Hers was the first major prosecution after the 2006 coup, which ushered in a new era of political polarization. Society divided into those who valorized the monarchy above all and those who saw democracy as the country’s future. The sharp increase in lèse majesté prosecutions and length of sentences has been one of the dramatic indicators of this growing polarization. In 2009, Daranee was sentenced to eighteen years in prison for fifty-five minutes of speech deemed to defame the former king, Bhumibol Adulyadej, or Rama IX, who reigned from 1946 until his death in October 2016. An appeals court ruling in 2011 left Daranee’s conviction unchanged but reduced her prison term to fifteen years. In the years since—both leading up to and following the second coup in ten years, launched by the National Council for Peace and Order (NCPO) in 2014—the criminalization of any speech or action not lauding the monarch has grown even more severe.
The intimidating circumstances of Prawais’s own recent arrest, and the outsize punishment that he now faces for his peaceful expression of dissent against the crown and state, represent what has become the status quo of repression under the current ruling regime of the NCPO. On the surface, life in Thailand appears to go on as usual. But for those who dare to question the dictatorship or the monarchy, the consequences are grave. Like the totalitarian regime Vaclav Havel describes before 1989 in Czechoslovakia, the NCPO aims to eliminate the space to even imagine a different political future. Using a combination of existing sedition law, the lèse majesté law, and a range of junta-issued orders, students, academics, lawyers, journalists, and others now risk prosecution and imprisonment for any act of peaceful dissent.
As the four-year anniversary of the coup looms in 2018, the NCPO shows no signs of giving up power, and dissent remains dangerous. Protests are quickly shut down, and activists face military detention and prosecution in a legal system stacked against them. Though well aware of these dangers, Prawais Praphanukul has chosen to respond to the accusations against him with defiance likely to earn him a lengthy prison term. Yet despite this probable outcome, or perhaps because of it, his actions also upend the status quo of repression.
Although Thailand has officially been a constitutional monarchy since the end of the absolute monarchy in 1932, the relationship between crown and state remains murky. Those who challenge this relationship, like Prawais, are often accused of lèse majesté. Building on a steady growth in Article 112 cases that began after the 2006 coup, the increase in both the number of cases and the length of punishment since the 2014 coup has been exponential. Anyone can make a complaint of lèse majesté to the police, who are then compelled by law to investigate. Although the NCPO has consistently refused to release statistics about the numbers of arrests and many accused are afraid to access legal assistance or talk to the press, Thai Lawyers for Human Rights, a documentation and advocacy group established in the first days following the coup, recorded at least 138 indictments and prosecutions during the first three years of NCPO rule. Actions such as holding a conversation in a taxi about the monarchy, writing anti-government graffiti in a bathroom stall, performing political theater, and above all else, using social media to comment on the monarchy, are now grave crimes punishable by lengthy prison terms. Although Article 112 specifies speech that “defames, insults or threatens” the monarch, in practice, any speech or action that does not uncritically valorize the monarch has been judged criminal.
For those prosecuted for social media posts, one post is treated as one count, and the punishment for one count can range from three to fifteen years in prison. The vast majority of the accused choose to confess because innocent verdicts are rare and a confession automatically results in halving one’s sentence as well as eligibility for a royal pardon.
To choose to plead innocent, as Daranee Charnchoengsilpakul did initially (in 2016 she changed her plea to guilty and was granted release and a royal pardon), and journalist and labor activist Somyot Prueksakasemsuk did prior to the 2014 coup, can garner a heavy punishment. One is presumed guilty until proven innocent in lèse majesté cases, and the only proof of innocence is pledging loyalty to the monarchy. Somyot was sentenced to eleven years in prison for his role editing a magazine that published two articles (by another author) that were deemed to defame the king.
Prawais has chosen to stand apart from the vast majority of those accused. He refused to confess or to resist by claiming innocence. Instead, he simply refused to participate in the trial and submitted a series of declarations to the court explaining why. In spare language replete with a legal logic honed over thirty years of experience, the two declarations submitted to the court in September, and then published by the progressive quarterly Fa Diew Kanin October, detail the illegitimacy of the proceedings against him.
As he did in the thirteen Facebook posts that led to his arrest, Prawais dares in the two declarations to raise basic but challenging questions about the relationship between the crown and the state in Thailand. In the first, he argues that the Thai judiciary serves the king rather than the people, and as the king is the injured party in his case, the proceedings against him can only be partial. Citing the court’s frequent claim of acting in the name of the king and noting that the injured party in lèse majesté cases is the king, Prawais writes that, “The judiciary is therefore in the position of being an organ of the injured party. The judiciary then has a vested interest in the outcome of this case . . . [and] is therefore devoid of impartiality.” As a result, Prawais declares, “I do not accept the process of the trial of this case. . . . I will not participate in the trial. I will not appoint a lawyer to take part in the case, cross-examine witnesses, or present defense witnesses. I will not sign any court documents.” In the second declaration, Prawais contends that the reason for the denial of his requests for bail—namely, that “this is a case of severe action against the institution of the monarchy that is respected, loved, and revered by the people,” an action “taken without fear of the law [that] may impact the security of the kingdom”—indicate that a guilty verdict against him is preordained. He concludes the second declaration by repeating his refusal to accept the proceedings against him.
The Criminal Court responded to Prawais’s declarations with silence and will reconvene in early May 2018 for prosecution witness hearings. As Prawais promised, there will be no defense witnesses and he will not speak on his own behalf. His actions, before and after his arrest, are likely to secure him a severe sentence. His refusal to bow down before an unjust system is a singular act of defiance against a regime that has secured compliance through the selective, harsh repression of those who dissent against the crown and state. Yet fear of guilt by association means that Prawais’s case and actions have received scant coverage in the Thai domestic press, with the exception of a few progressive outlets and journalists. For the international press, his potential record-breaking sentence was newsworthy, but his unique, dissident response has gone unremarked upon. Even if no one else follows his lead, Prawais’s decision to sacrifice his own liberty has rattled the dictatorship—precisely because it illustrates the limits of repression in present-day Thailand.
Tyrell Haberkorn is an Associate Professor of Asian Languages and Cultures at the University of Wisconsin, Madison. She is the author of Revolution Interrupted: Farmers, Students, Law and Violence in Northern Thailand (University of Wisconsin Press, 2011) and In Plain Sight: Impunity and Human Rights in Thailand (University of Wisconsin Press, 2018).
