GISW SPECIAL EDITION atch 2017 ON UNSHACKLING EXPRESSION: ON I I T T I A study on laws criminalising I expression online in Asia AL ED AL ED I I PEC PEC S Freedom of expression and opinion online is increasingly criminalised with the S aid of penal and internet-specific legislation. With this report, we hope to bring to light the problematic trends in the use of laws against freedom of expression in online spaces in Asia. In this special edition of GISWatch, APC brings together analysis on the crimi- nalisation of online expression from six Asian states: Cambodia, India, Malaysia, Myanmar, Pakistan and Thailand. The report also includes an overview of the methodology adapted for the purposes ETY WATCH 2017 ETY WATCH 2017 I of the country research, as well as an identification of the international standards I on online freedom of expression and the regional trends to be found across the six states that are part of the study. This is followed by the country reports, which expound on the state of online freedom of expression in their respective states. ON SOC ON SOC I I With this report, we hope to expand this research to other states in Asia and to make available a resource that civil society, internet policy experts and lawyers can use to understand the legal framework domestically and to reference other jurisdictions. GLOBAL INFORMAT GLOBAL INFORMAT GISWatch 2017 SPECIAL EDITION https://www.GISWatch.org DIGITAL ASIA H U B SUPPORTED BY EUROPEAN UNION ASSOCIATION FOR PROGRESSIVE COMMUNICATIONS (APC) GISWatch 2017 SPECIAL EDITION Unshackling expression: A study on laws criminalising expression online in Asia Global Information Society Watch 2017 | Special edition Unshackling Expression: A study on laws criminalising expression online in Asia Coordinating committee Gayatri Khandhadai (APC) Pavitra Ramanujam (APC) Geetha Hariharan Project coordinator Gayatri Khandhadai (APC) Edition coordinator Geetha Hariharan Assistant editor, publication production Lori Nordstrom (APC) Graphic design Monocromo [email protected] Phone: +598 2400 1685 Cover illustration Ivana Kurniawati Supported by the European Union under the Instrument for Democracy and Human Rights (EIDHR) and the Internet Policy Observatory (IPO) Published by APC 2017 Printed in India Creative Commons Attribution 4.0 International (CC BY 4.0) https://creativecommons.org/licenses/by/4.0/ Some rights reserved. Global Information Society Watch 2017 | Special edition Unshackling Expression: A study on laws criminalising expression online in Asia ISBN 978-92-95102-86-6 APC Serial Number: APC-201711-CIPP-R-EN-DIGITAL-276 DIGITAL ASIA H U B Disclaimer: The views expressed in GISWatch are not necessarily the views of APC or of its members The criminalisation of freedom of expression online in Thailand government tried to pass a general amnesty (for her Freedom of Expression Documentation Centre, iLaw https://freedom.ilaw.or.th/en exiled brother), and after high-level corruption in a failed rice-subsidy scheme was revealed. Yingluck ordered the dissolution of the parliament and called Introduction: Background on the political for a new election, contradictory to the demand situation in Thailand from protestors who were opposed to the election Thailand is a sovereign country ruled by democracy and called for the creation of a new ruling system by with the King as the head of state. However, after a people’s assembly. This led to a deadlock and a mil- revolution against the absolute monarchy in 1932, itary coup on 22 May 2014 led by General Prayuth Thailand has had at least 13 military coups with 11 Chan-o-cha in the name of the National Council for unsuccessful rebellions and 20 constitutions. The Peace and Order (NCPO). time period under military governments is longer With the justification of resolving the political than that of elected governments. conflict in society, the NCPO proceeded to impose The 1997 constitution created a new form of martial law on 20 May 2014 and repressed indi- democratic government that led to the rise of a vidual liberties and freedoms using political and successful political party led by Thaksin Shina- legal claims. In part, they achieved this through the watra, a millionaire businessman. The Thaksin speedy and forced promulgation of an interim con- administration and policies became popular among stitution on 22 July 2014. poor people in the countryside along with many The absolute power of the NCPO is enshrined corruption allegations. This phenomenon did not and entrenched in Sections 44, 47 and 48 of the satisfy the traditional institutions such as the mili- interim constitution. Section 44 confers absolute tary, judiciary, bureaucrats and middle class society power to the head of the NCPO to issue any executive who cooperated to fight against the new emerging orders and announcements deemed necessary for power, that of business politicians. The anti-Thak- “the benefit of reform in any field and to strengthen sin movement gathered with yellow as a campaign public unity and harmony, or for the prevention, dis- colour, as it is the colour of King Rama IX, while the ruption or suppression of any act which undermines pro-Thaksin movement adopted the colour red, as public peace and order or national security, the it is a symbol of the common people. The political monarchy, national economics or administration of conflict arose around 2005 with the “yellow shirt” state affairs.” This enables General Prayuth, as the demonstrations against Thaksin which led to a mil- head of the NCPO, to override any checks and bal- itary coup on 19 September 2006. The “red shirt” ances from the parliament and judiciary. Section 47 movement fighting against the invisible power out- states that all executive orders and announcements side the constitution emerged in response. issued by the junta are “lawful, constitutional, and Thaksin’s younger sister, Yingluck Shinawatra, final.” Section 48 grants immunity from prosecution was elected as prime minister after the junta-draft- to the members of the NCPO and all other individu- ed 2007 constitution was enacted. But there are als acting under the orders of the NCPO with regard many movements and accusations against her. The to the coup, thus giving full discretion to the NCPO big movement, which consisted of conservative to govern without judicial oversight. groups, professional elites and some NGOs that A considerable part of the NCPO’s strategy to opposed the political influence of the Shinawatra maintain its hold on power is the use of the exist- clan, and is called the People’s Democratic Re- ing laws (Section 112 and 116 of the Penal Code) form Committee (PDRC), shut down the country for and enacting new laws to enhance military power months in late 2013. The PDRC rose after Yingluck’s in judicial process (Head of NCPO Announcement 118 / Unshackling Expression No. 7/2014 and Order No. 3/2015), and also other and national culture are very much based on the laws to repress opponents to the establishment monarchy institution. This law became problematic (the Public Assembly Act of 2015, the Computer during the reign of King Bhumibol Adulyadej, King Crimes Act, and the Referendum Act). The NCPO has Rama IX of the Chakri dynasty, who was in the Guin- summoned more than 1,300 people to report and ness Book of World Records as the longest reigning forced them to be under an “attitude adjustment” monarch. Before he passed away on 13 October programme. It has arrested at least 500 people on 2016, King Rama IX had carried out a lot of royal political grounds, and has also established jurisdic- projects for social benefit. During the military re- tion of the military court over civilian cases under gimes in the 1950s to 1970s, the new ideology was “national security” offences or charges against peo- promoted, the monarchy was established as the ple who do not kneel before the NCPO. heart of the nation, and the penalty for lèse majesté As this report will show, the prosecution and offences was increased. The mainstream ideology conviction rates under existing criminal and civil among the Thai people considered the King as god procedure laws have increased dramatically. Arbi- and as a symbol of goodness. Thai constitutions trary arrests and incommunicado detentions under usually state that the King shall be enthroned in a the NCPO have become commonplace. position of revered worship and shall not be violat- Indeed, the NCPO uses repression as a cen- ed. No person shall expose the King to any sort of tral strategy to enact and enforce its policies. This accusation or action. was clearly seen in the use of the Referendum Act The lèse majesté law and its enforcement have in the August 2016 constitutional referendum. The become the most sensitive and controversial issue Act, in effect, criminalised any form of campaigning in Thai political conflict for the past 10 years. Politi- against the junta-written constitution. Within this cal opponents have accused the other side of being repressive environment, the new constitution en- disloyal to the monarchy and thus guilty of lèse trenches the role of the military in the future politics majesté. This accusation is the most severe in Thai of Thailand, with the Senate being fully appointed society. People who are accused of lèse majesté can by the NCPO, a new electoral system that disadvan- be perceived by the society as wicked people and tages large, established parties being instituted, also a threat to national harmony. and non-party members eligible to become the During the crackdown on red shirt protests prime minister. In addition, Section 44 has also in 2010 that led to nearly a hundred deaths, the been used at least 160 times by General Prayuth to government accused protesters of being anti-mon- push through a raft of administrative and econom- archy.