AsiaViews, Edition: 32/VII/November2010
Category: BOOK REVIEW
A brilliant legal history and wide-ranging diagnosis of current discontent
This big, brave and important book argues that defamation laws are the cornerstone of Thailand's authoritarian political culture. They have strangled the media, wrecked public debate, undermined artistic and intellectual work, and ensured impunity for a long litany of state crimes. They underpin an authoritarian control of thought and expression that is extraordinary in a country that likes to think of itself as a democracy.
Defamation is a strange crime. It is committed when spoken or written words damage the reputation of a person or institution in the eyes of the world. But how is guilt established? Theoretically, some kind of survey would be needed to show that people's views had been changed by the words under scrutiny. In practice, courts either focus on the malicious intent of the author of the words, or use their own Olympian judgement about the words' impact. In the pure form of the law, the truth of the words is not at issue, only their impact. Indeed, the closer the offending words are to the truth, the greater the crime. Defamation is a slippery area of law that can easily be used to silence criticism and debate.
Thailand's first edict on defamation was introduced in 1900. The legal code of 1908 elaborated this into specific clauses on defamation of individuals, the government (sedition), and the monarchy (lese-majesty). These laws were drafted by foreign advisers and in line with international practice of the era. The trend since then in democratic countries has been to weaken laws on defamation, especially in reference to public figures and institutions, in order to make room for the debate and criticism that nourish a democratic society. For a half-century, Thailand followed that same trend. Penalties were reduced. Cases were few. Legal authorities resisted attempts by governments to make the law fiercer.
But from 1958 that trend has gone into reverse. The laws became broader, penalties harsher, odds on conviction higher. Most strikingly, the volume of litigation gradually increased and then rocketed in the last few years. The number of cases of personal defamation brought to court was 333 a year in 1961 to 1973, rising to 680 in the early 1990s, 1,160 from 1998 to 2003, and a staggering 2,200 per year between 2004 and 2008. The number of lese-majesty cases brought to court was one a year in 1949 to 1956, rising to 10 a year from 1977 to 1992, and booming to 111 a year since 2005. After tracing this history, David Streckfuss argues that the use of defamation laws in Thailand is out of line with the rest of the world, and with the feelings of the society. Dangerously so.
How has this come about? Streckfuss develops two arguments. First, a frame of thinking rooted in Theravada Buddhism and unchanged by the challenges of modernity is very fertile ground for defamation. Buddhist ethics place a lot of emphasis on intent, which is key to judging defamation. The Buddhist concept of merit arrays everyone in a moral hierarchy where the meritorious at the top are uniquely able to perceive truth-beyond-truth, and the "hot-hearted" demons at the bottom are characteristically prone to malice. By perceiving the malice underlying the words of the demons, the meritorious can prevent the spread of ideas they deem damaging to society.
Second, the authoritarian regimes that have appeared regularly since 1958 have strengthened defamation laws, in order to stifle criticism, debate and independent thinking. The 1958 coup government enlarged the lese-majesty law to cover "any matter infringing on His Majesty the King". The 1976 coup government increased the maximum penalty from seven to 15 years. The 1991 coup government raised the penalties for personal defamation so steeply that defamation charges became a useful tool for politicians, officials and institutions to intimidate critics into silence. The 2006 coup government expanded defamation laws into cyberspace with staggering penalties.
Streckfuss argues that coup governments, though often short-lived, have contrived a "defamation regime", which is a permanent form of oppression. Each coup regime claims there is a crisis caused by corruption and threats to the monarchy, requiring a suspension of democracy and the introduction of harsher legislation. The judiciary has been complicit in legitimating the coups and enforcing the coup-makers' laws. The scope of sedition or defamation of the state has progressively widened. The 1952 anti-communist act criminalised words and actions which threatened the trinity of Nation, Religion and King. The 1969 retread of the law enlarged this to include "any act which destroys the traditions and customs of the Thai race". Under this vague rubric, a huge range of ideas and actions can be imagined as threats to "national security" or "Thai culture" or "national unity". Over the last 25 years, conservative forces have contrived an idea of "Thainess" as a bundle of values that needs to be protected from all kinds of threat.
In the last section of the book, Streckfuss draws out the implications for Thailand's public life and political health. He relates a long interview with the officer responsible for press censorship from 1976 to 1991. This officer cheerfully relates how he censored stories either at the behest of "big people" or because the stories undermined an imagined view of a paternal government earnestly looking after the interests of the citizenry. Whether the reportage in these stories was true or false was not material to his work. Censorship of cinema and television has followed a similar principle of censoring words and scenes that affront an imagined picture of Thai society and Thai values. The history appearing in school textbooks and popular versions on cinema and television continues to peddle stories which express these values, but have long been shown up as fiction by academic research. From time to time, desperate attempts are made to persuade foreigners to submit to the same kind of censorship (from the famous case of the Longman dictionary to the recent outcry against CNN and BBC).
Streckfuss argues that the defamation regime induces "defamation thinking". In its simplest form, journalists and editors self-censor their output, producing newspapers that seem designed to obscure the news rather than reveal it. More perniciously, the defamation regime protects the state's acts of cruelty (1976, 1992, Tak Bai, May 2010, etc.) from any proper investigation and accounting. The public sphere becomes "shrunken, enfeebled, irrelevant". The word "truth" takes on a whole new meaning. As in defamation litigation, truth is not concerned with whether words are true, but about what impact they have on people or values deemed to be important. Again, as in defamation litigation, this judgement is not made by the people themselves but by the meritorious few who have a monopoly on superior insight. Streckfuss leads us through the wonderland of defamation case law with dollops of gallows humour.
David Streckfuss is a US academic who has lived in Thailand for over 20 years. He wrote earlier on Sulak Sivaraksa's tangle with defamation charges. He notes that his 10-year delay in completing the book has given him an extraordinary ending _ the spectacular defamation boom of the last five years. In the final few pages, he suspects that this boom has already gone too far. Punishments under the lese-majesty law are now steeper than they were under the absolute monarchy _ indeed "higher than seen anywhere in the world since the 19th century". The total of 164 new cases filed last year roughly equals half the total number of cases from 1949 to 2005. The issue has become so convoluted that people accusing others of lese-majesty, or even just trying to explain the law, find themselves charged under the same law.
In the West, Streckfuss notes, defamation laws were weakened a century ago precisely because they were found to be counterproductive _ they provoked resentment against the people and institutions they were supposed to protect. Thai academics have recently raised this same concern here.
This book is a brilliant essay on Thailand's legal history based on very detailed research into legislation and case law. In addition, it offers a complex, thoughtful and wide-ranging diagnosis of current discontents. Its rich historical and international perspective should make Thailand's democrats and Democrats pause to wonder where the country is heading.
By: Chris Baker
Bangkok Post 20 September 2010 photo: TRUTH ON TRIAL IN THAILAND: Defamation, Treason, and Lese-Majeste David Streckfuss Routledge, 490pp, $75 (2,225 baht) ISBN 978-0415414258