Thailand: Joint Open Letter: Drop Charges against Phuketwan Journalists Alan Morison and Chutima Sidasathian

July 9, 2015
Gen. Prayuth Chan-ocha
Prime Minister
Royal Thai Government
Bangkok, Thailand
RE: Drop Charges against Phuketwan Journalists Alan Morison and Chutima Sidasathian
Dear Prime Minister Prayuth Chan-ocha,
We
write to you as international and regional organizations working to
protect the rights to freedom of expression and freedom of the media to
raise serious concerns about the Royal Thai Government’s decision to
seek the prosecution of Phuketwan editor Alan Morison and reporter
Chutima Sidasathian for criminal libel and for violating the Computer
Crime Act (CCA). We urge the government to immediately and
unconditionally withdraw the criminal libel complaint and to have the
CCA charges dropped. Proceeding with the trial of these two journalists,
slated to start on July 14, 2015, would be in violation of Thailand’s
commitments under international law.
The
complaint by the Royal Thai Navy focuses on Phuketwan’s website posting
from July 17, 2013, concerning the smuggling of Rohingya, an ethnic
minority group in Myanmar facing systemic discrimination and violence.
Phuketwan’s post reproduced one paragraph from an article (“Special
Report: Thai authorities implicated in Rohingya Muslim smuggling
network”) by another media organization, Reuters, which has not been
contested by the Navy.
The use of criminal
defamation is an unnecessarily heavy-handed response to any concerns the
Navy may have with the article and contrary to free expression rights.
Rather than prosecuting the Phuketwan journalists, the Thai government
should withdraw these charges and adopt an alternative rights-respecting
approach to address its concerns with Phuketwan. Such alternative could
see the Navy instead seek a dialogue with Phuketwan, or request an
opportunity to publish the Navy’s account of the matter, or issue a
statement to rebut or clarify the allegations made. We believe it is not
too late for the Thai government to undertake such an alternative to
criminal prosecution, which would demonstrate respect for fundamental
rights on a matter of concern to many foreign governments.
Thailand’s
prosecution of the Phuketwan journalists would violate its obligations
under article 19 of the International Covenant on Civil and Political
Rights (ICCPR), which provides that “everyone shall have the right to
freedom of expression; this right shall include the freedom to seek,
receive and impart information and ideas of all kinds.”
Permissible
restrictions on the right to freedom of expression do not pertain in
this case. Any restrictions on the right to freedom of expression must
meet a strict three part test: they must be provided for by law; must be
done for the purpose of protecting only specified public interests:
national security, public order, or public health or morals, or the
rights or reputations of others; and must be proportionate as well as
demonstrably and strictly necessary to meet those interests (i.e. being
the least restrictive measure to achieve the specified purpose).
The
United Nations Human Rights Committee, which monitors state compliance
with the ICCPR, in General Comment No. 34, paragraph 35, states that
“when a State party invokes a legitimate ground for restriction of
freedom of expression, it must demonstrate in specific and
individualized fashion the precise nature of the threat, and the
necessity and proportionality of the specific action taken, in
particular by establishing a direct and immediate connection between the
expression and the threat.” Yet neither the Thai Navy nor the Thai
government has done this, nor explained why other actions short of the
legal action initiated against the two journalists at Phuketwan would
suffice to meet their concerns.
Furthermore,
paragraph 42 of General Comment No. 34 notes that “The penalization of a
media outlet, publishers or journalist solely for being critical of the
government or the political social system espoused by the government
can never be considered to be a necessary restriction of freedom of
expression.” Finally, in paragraph 47 of General Comment No. 34, the
Human Rights Committee calls on states to decriminalize defamation and
libel and has stressed that such laws must never be used to stifle
freedom of expression.
Our organizations,
along with an increasing number of governments, concur with the UN Human
Rights Committee that criminal defamation laws should be abolished
because criminal penalties infringe on free expression and are always
disproportionate punishments for reputational harm. Criminal defamation
laws are open to easy abuse, resulting in very harsh consequences,
including imprisonment. As repeal of criminal defamation laws in an
increasing number of countries shows, such laws are not necessary for
the purpose of protecting reputations. The Johannesburg Principles on
National Security, Freedom of Expression and Access to Information, an
influential set of principles issued in 1996 by international legal
experts, state that “No one may be punished for criticizing or insulting
… public officials, … unless the criticism or insult was intended and
likely to incite imminent violence.”
Further,
by continuing on this course, the Thai government is acting contrary to
its own policy enunciated in the government’s national report to the
Universal Periodic Review (UPR) process of the UN Human Rights Council
on October 5, 2011. The Thai government’s presentation stated that:
The right to freedom of opinion and expression is the bedrock of
Thailand’s democratic society. The Constitution guarantees freedom
of a person to express opinions, make speeches, write, print and
publicize; prohibits the closure, interference or censorship
of a newspaper or other mass media; and bans politicians from owning
media outlets. Thailand also plays host to numerous international
press agencies, civil society organizations and international NGOs, all
of which attest to the free atmosphere that is conducive to news reporting and the free flow of information.
Put
simply, by taking legal action against Phuketwan, the Thai government
is threatening precisely the rights that the government itself described
as the “bedrock of Thailand’s democratic society.”
The
use of the Computer Crime Act in this case is also particularly
troubling, especially since this appears to be the first time that one
of the services of the Thai armed forces has ever used the CCA against
journalists. Our organizations urge that this draconian, rights-abusing
law should be repealed or amended to comply with international law and
standards instead of being used as a tool to silence journalists writing
for newspapers, blogs, or other media. We are concerned that article
14(1) of the CCA under which the Phuketwan journalists are charged is
vaguely worded and overly broad, and is clearly being used by the
government in this case to suppress media freedom and silence the voice
of Phuketwan.
Alan Morison and Chutima
Sidasathian have been unfairly charged with serious offenses for simply
doing their jobs in a system that authorities claim is committed to
respecting freedom of expression and the media. Their actions should not
constitute a crime. We sincerely hope that you will recognize this and
request an immediate withdrawal of all criminal complaints and charges
against the Phuketwan journalists, seeking an end to the prosecution.
We look forward to hearing from you on this important matter.
Sincerely,
Brad Adams
Asia Director
Human Rights Watch
Evelyn Balais-Serrano
Executive Director
Asia Forum for Human Rights and Development (Forum Asia)
Richard Bennett
Director, Asia-Pacific
Amnesty International
Karim Lahidji
President
International Federation for Human Rights (FIDH)
Edgardo Legaspi
Executive Director
Southeast Asian Press Alliance (SEAPA)
Charles Santiago
Chairperson
ASEAN Parliamentarians for Human Rights
Ian Seiderman
Legal and Policy Director
International Commission of Jurists
Gerald Staberock
Secretary General
World Organization Against Torture (OMCT)