Thai junta's constitution drafters propose 'indirectly elected' Senate
Originally published at Siam Voices on February 27, 2015
The Constitutional Drafting Committee are continuing to re-write the political rule book for a post-coup Thailand. But, like with all the military junta's government bodies, the claim to "reform" and bring "true democracy" is questionable, as the most recent proposals for an unelected sorry, "indirectly elected" Senate shows.
One of the key elements of Thailand's military government is the Constitutional Draft Committee (CDC), which is tasked to, well, write a new constitution that lays the legal groundwork for a new elected government (when we actually get there is another matter), the first one since the military coup last May that has temporarily indefinitely suspended electoral democracy. However, just like all other government bodies of the Thai junta - such as the National Legislative Assembly (NLA), the rubber-stamping ersatz-parliament, and the National Reform Council (NRC), a rather exclusive group suggesting wide-ranging reforms - the CDC is fully-appointed and of questionable political bias.
Since its nomination in November, the 36-member strong committee has 120 days to accomplish the herculean task to not only write a new charter, but also to have one that (appears to at least) curtail what they call "parliamentarian dictatorship", which they and their allies accuse the past successfully elected governments associated to former Prime Minister Thaksin Shinawatra of, including the last one of his sister Yingluck Shinawatra before it got toppled by the military that is running the country now.
Among the many changes the CDC is currently proposing is the make-up of the Senate, the Upper House next to the House of Representatives. In pre-2014 coup Thailand (and thus post-2006 coup), the 150-member Senate was half-elected and half-appointed. But now, the CDC is suggesting this model instead:
Thailand's new 200-member Senate (...) will be chosen from pools of candidates, including former premiers, ex-military leaders and representatives of different professions, another committee spokesman, Lertrat Ratanavanich, said Wednesday. They can only serve one six-year term.
"Thai constitution drafters say Senate to be unelected", Associated Press, February 26, 2015
This doesn't sound as straightforward as the previous system, so how will they be exactly chosen?
The Senate will consist of 200 members, half of whom will be chosen by the council of "experts," which Bowornsak described as "a diverse group of individuals with expertise and morality about politics, national administration, the judicial system, society, ethnology, and folk wisdom."
It remains unclear how the council of experts will be chosen.
The other Senators - also appointed - will be chosen from a pool of former high-level politicians and bureaucrats such as prime ministers, military commanders, parliament speakers, judicial leaders, and representatives from other civic organizations.
"Junta's Charter Drafter Clarifies 'Unelected' Senate", Khaosod English, February 26, 2015
In case you're wondering how this "pool" of candidates is being set up, here's the complete list:
Senators will be selected from among five categories of people: former prime ministers, former Supreme Court presidents and former parliament presidents; former high-ranking state officials such as military leaders and permanent secretaries; heads of legally registered professional organisations; people's organisations such as labour unions, agricultural co-operatives and academics; and other groups such as lawyers, environmental activists, poverty networks and healthcare experts.
Senators from the first four groups will be selected from among themselves, while those from the fifth will be nominated by a screening committee and selected by the National People's Assembly and executives and members of local administrative bodies.
"CDC agrees to indirect Senate pick", Bangkok Post, February 26, 2015
So basically a bunch of yet-to-be-defined committees supposedly representing a broad spectrum of the population would be tasked to choose the candidates for the Senate, making it practically fully appointed.
However, the chairman of the CDC, Bowornsak Uwanno (pictured above), does not agree with this notion:
"Certain newspapers and TV channels have identified the new Senate as unelected," CDC chairman Bowornsak Uwanno said at a press conference today. "It's not lovely. It's an inaccurate presentation of news.” (...)
However, the CDC chairman stressed today that elected members of local administrative organizations will be included in the process of selecting senators, because they will be responsible from choosing 100 senators from a list of 200 candidates approved by the panel of "experts."
"Therefore, accusations that the new Senate is unelected are false," Bowornsak said.
He also told reporters that some foreign countries have similar parliamentary models, citing France, though he failed to point out that French senators are indirectly elected by a "super-electorate" of elected local and regional officials, whose options are not screened by any unelected panel of professionals.
"Junta's Charter Drafter Clarifies 'Unelected' Senate", Khaosod English, February 26, 2015
OK, so he is saying that it is still a democratic process because the people are voting the local officials, who then, alongside other officials, are going to pick 100 senators pre-selected from a yet-to-be-defined-but-very-likely-appointed "expert" vetting panel, which still leaves the other 100 senators to be chosen in a yet-to-be-defined-but-also-very-likely-appointed fashion.
And how large is that percentage of elected local officials who would be picking the senators? It doesn't matter, because the military junta has suspended local elections anyways and replaced outgoing officials with - guess what? - appointed ones!
To say that CDC chairman Bowornsak's argument that the Senate wouldn't be unelected is shaky at best and at worst rather disingenuous, which makes the description of an "indirectly elected" upper House one hell of a political euphemism.
There's a certain irony here when you compare this to the efforts during the Yingluck administration to amend the constitution to make the Senate fully-elected again. While the underlying motivations could still be questioned, the principle of a fully-elected Senate was enough of a reason for the Constitutional Court, in what many observers say a politically charged verdict, to outlaw these proposed amendments. Even worse, the National Anti-Corruption Commission (NACC) - which has recently impeached the already toppled former PM Yingluck - was going after most of the lawmakers involved and is thinking about doing it again.
And now (arguably) the same similarly politically-aligned camp that was against the previous amendments and is now running the country (one striking example is Rosana Tositrakul, back then an appointed senator who petitioned the Constitutional Court and now, surprise, a member of the National Reform Council), is now floating the proposal for a Senate that really isn't elected at all.
Thailand’s new cyber laws – Part 5: Admin error
Originally published at Siam Voices on February 26, 2015
In the last part of our Siam Voices series examining the new cyber laws, we chronicle the criticism against and the defense for the controversial bills - and what’s behind the military junta’s motivation to push these into law.
In the past two weeks we have analyzed the cyber law bills for its potential impact on policies, censorship and also business. More often than not we found that the flaws outweigh the benefits and, if signed into law without large-scale amendments will have very serious implications of the civil liberties, free speech, personal privacy and even e-commerce of every Thai internet user - except for those in charge of the law.
So it is no wonder why there has been a significant amount of criticism against the cyber bills. Here’s just a small selection:
"Proposed cyber-security legislation in Thailand represents a clear and present danger to media freedoms," said Shawn Crispin, CPJ's senior Southeast Asia representative. "If Prime Minister Prayuth is sincere about returning the country to democracy, he should see that Parliament scraps this bill, which is reminiscent of a police state, and instead enact laws that uphold online freedoms."
”Cyber security bill threatens media freedom in Thailand”, Committee to Protect Journalists, January 20, 2015
"The consumers will feel that they are being watched when they go online,” said Arthit Suriyawongkul, an expert on cyber and computer law from the Thai Netizen Network. (…)
“They'll feel unsure about sharing their private information fearing that officials could abuse their privacy,” Mr Arthit said. “If consumers are not confident then online businesses will suffer."
"Fears over Thailand's online freedom, as junta drives towards digital economy”, Channel NewsAsia, January 29, 2015
Six civil organizations [Thai Netizen Network, FTA Watch, Foundation for Community Education Media (FCEM), Green World Foundation, People’s Media Development Institute, and Thailand Association for the Blind (TAB)] denounced the eight Digital Economy bills recently approved by the junta, saying they are national security bills in disguise and that the bill will pave the way for a state monopoly of the telecommunication business.
"Thai junta’s Digital Economy bills are national security bills in disguise: rights groups”, Prachatai English, January 14, 2015
Also, almost 22,000 people have signed an online-petition against the bills, calling for them to be stopped.
At the moment the right cyber bills are in the military junta’s all-appointed ersatz-parliament, the National Legislative Assembly (NLA) - dominated by active and former military officers - and are awaiting deliberation. It is not expected that the rubber-stamping body will be making any fundamental changes to the drafts.
Nevertheless, the military government’s response to the criticism is - like with any other criticism out there - aggravated and irritated. Prime Minister General Prayuth Chan-ocha responded in his usual style:
“We will develop software for goods and services. If there is private [online] content, no one would mess with it. But if [some people] commit crimes [such as lèse majesté], we have to investigate the matter. The accusation that the government is not taking care of Article 112 [of the Criminal Code, known as the lèse majesté law] is because those lèse majesté websites operate from overseas.
"Junta leader admits controversial digital economy bills target lèse majesté”, Prachatai English, January 22, 2015
And when pressed by another reporter…
"Today, have I ever restricted anyone's rights? Have I ever done that?" asked Gen. Prayuth, who imposed martial law after leading a military coup on 22 May 2014, and has banned any political protests or public criticism of his regime.
The reporter pressed Gen. Prayuth to justify the sweeping nature of the bill, prompting Gen. Prayuth to lose his temper and shout, "I don't have to answer why! I will pass it. You have a problem with that? Otherwise, why the hell am I the Prime Minister? Why am I the Prime Minister?"
Gen. Prayuth then walked away from the reporters and said angrily, "I'm in a very bad mood."
"Thai Junta Leader Deflects Concern Over Mass Surveillance Bill”, Khaosod English, January 21, 2015
This incident at a small activist symposium shows how much the military government is trying to claim its narrative over the bills:
Also present at the Bangkok symposium was an Army Lieutenant who arrived uninvited with three other soldiers in an armoured Humvee and "asked" to be allowed to defend the draft bills. (…)
Army Lieutenant Kittiphob Tiensiriwong (…) urged the 35-strong crowd to accept the bills, saying that the NLA had good intentions but acknowledging that the bills must have more positive than negative aspects.
When asked to explain, Kittiphob, who did not remove his footwear like the other participants, said there were times when speedy access to the Internet was needed.
He said the bills aimed "to control those who think unlike others - those who have their own mind and are not considering the thinking of the collective."
"Calls to hold cyber bills until democracy is restored”, The Nation, February 2, 2015
While this should come as no surprise to anyone, that right there is actual main motivation of the military junta for the cyber law bills and for the way it was written! Ever since the military coup in last May, one of the key elements of its tight grip is the massive monitoring of the media, including online, to curtail any signs of criticism and dissent.
Even without the cyber laws and thanks to the still ongoing martial law, the military junta has already taken steps for wide-spread online surveillance as we have previously reported, as well as ordering Thai internet service providers to preemptively block websites. Since then, there have been further developments that are in line with the authorities' efforts to scrutinize online traffic: the development of software to intercept secured SSL-connections, mandatory sim-card registrations (in a country that predominantly uses their phones with pre-paid subscriptions) as well as for free wifi and the reported creation of a "cyber warfare" unit by the Thai military.
The desire by Thai authorities to control the flow of information online is not new and was evident in past governments (see here, here, here and here), but under the authoritarian rule of the military junta, it can operate with no checks and balances - and thus also legalize its unprecedented powers to monitor, spy, filter, censor and collect anything online.
The main purpose of an army is to protect the country from external threats, but history has shown that the Thai army has mainly acted against the Thai people. Now with the new online surveillance measures and the cyber law bills, the Thai military and the junta is expanding its fields of operations (or rather battlespace) to the cyberspace - and thus not against an external force, but again against every Thai internet user.
THAILAND'S NEW CYBER LAWS: Part 1: Introduction - Part 2: Changes to Computer Crime Act - Part 3: Far-reaching and all-encompassing cyber security - Part 4: Bad for business, too! - Part 5: Admin error
Thai court jails theater activists for lese majeste
Originally published at Siam Voices on February 25, 2015 Thailand's courts are continuing to jail people under the lèse majesté law, as two young students have been sentenced to two and a half years in prison for allegedly insulting the monarchy in a theater play. The conviction shows yet again the draconian law is still thriving and even more so under the current military junta.
Dozens of students outside the Criminal Court in Bangkok began to sing when Patiwat "Bank" Saraiyaem (23 years old) and Porntip "Golf" Mankong (26) were taken out of the building (see video below) in shackles and back into their prisons after the judges handed down their sentences: five years in prison, reduced to two and a half. Both students were found guilty of allegedly violating the lèse majesté law by seemingly insulting the monarchy with a theater production.
[youtube https://www.youtube.com/watch?v=TH0X9mPMjW0?rel=0]
The draconian lèse majesté law, Article 112 of the Criminal Code, states that it is a criminal offense to “defame, insult or threaten” the king, queen, heir to the throne or regent. If convicted, the accused can face up to 15 years in prison. The law also prohibits media and anyone else from citing or quoting the details of the offense, as this also constitutes a violation of the law itself.
Use (or rather abuse) of the law has been constantly on the rise for most of the past decade, but has seen a sharp increase since the military coup last May. One of the first orders by the military junta was to transfer jurisdiction of such cases to a military court, as martial law remains since the coup.
Patiwat and Porntip - respectively, a student until his suspension at Khon Kaen University because of the trial, and a recent graduate - were part of the "Prakai Fai" (literally Sparking Fire) activist theater group and staged the play "The Wolf's Bride" ("เจ้าสาวหมาป่า" in Thai) at Bangkok's Thammasat University in 2013, which was the scene of the student-led pro-democracy rallies and its bloody military crackdown in 1973 and 1976.
The play itself is set in a fictional kingdom about a fictional king and his fictional advisor. Nevertheless, its contents (which we cannot elaborate further upon for the aforementioned reasons), were still deemed enough to defame the actual Thai monarchy. Patiwat (who acted in the play) and Porntip (who primarily co-ordinated the production) were arrested last August, while many others of the group have fled Thailand fearing they would be targeted as well.
The fact that a work of fiction is at the center of the offense shows not only the problematic flexible interpretation of the law by the authorities of what constitutes lèse majesté and what doesn't, it also bears some similarities of the case of Somyot Prueksakasemsuk. The veteran labor activist was sentenced to 11 years for merely editing political essays - that were written by somebody else - which were at best vague allusions to the royal family. He has been incarcerated (including his detention before the trial) since April 2011 and has been denied bail 16 times so far.
The two accused students have been denied bail six times as well, as have most other lèse majesté suspects. Both defendants have previously pleaded guilty, which doesn't necessarily mean they acknowledge the crime, as this is a standard procedure to reduce the sentence. Also, like many other sentenced lèse majesté prisoners, it seems unlikely that the two will be appealing the verdict, which would leave a royal pardon the only legal avenue to shorten the prison term.
The judges reasoned their verdict and sentencing as following:
"Although the defendants have never committed previous crimes, their action - performing the play in an auditorium at Thammasat University - was an act of defamation and insult in front of numerous people," said a judge at Ratchada Criminal Court in Bangkok. "Moreover, it was disseminated on many websites, causing damage to the monarchy, which is revered by all Thais. Such action is a grave crime that warrants no suspension of the punishment."
"Theater Activists Jailed Over Satirical Play About Monarchy", Khaosod English, February 23, 2015
The judge's assumption that the offenses in that theater play were insulting to the monarchy despite being "revered by all Thais", underlines "the contradictory task of trying to argue how inflammatory the slanderous remarks are (...) while at the same time maintaining that the words have no such effect on them," as academic and lèse majesté expert David Streckfuss wrote once (read here).
In fact, this contradiction has reached new (and absurd, if it wasn't so serious) lows under the current military government, which is hunting for lèse majesté suspects and dissidents alike with vigorous zeal - especially an estimated 40 suspects that have fled abroad.
A change for the better in Thailand is not in sight with the authoritarian military junta at the helm. But dissent is still alive, which is currently mostly upheld by student activists and public displays of resistance still do occur (as seen recently last Valentine's Day), only to be immediately shut down by the skittish authorities.
Porntip's and Patiwat's family members broke down in tears after the verdict was read out, as the dozens of supporters were waiting downstairs at the exit of the Criminal Court in Bangkok and started singing "The Faith Of Starlight" ("แสงดาวแห่งศรัทธา" in Thai), a song written by Thai leftist intellectual Chit Phumisak and popularized as a protest anthem by the pro-democracy student activists in the 1970s, which ended with the words:
ขอเยาะเย้ย ทุกข์ยากขวากหนามลำเค็ญ / คนยังคง ยืนเด่นโดยท้าทาย / แม้นผืนฟ้า มืดดับเดือนลับมลาย / ดาวยังพราย ศรัทธาเย้ยฟ้าดิน / ดาวยังพราย อยู่จนฟ้ารุ่งราง
May I mock the miserable thorns of poverty / the people are still standing defiantly / and even the skies turn dark and the moon vanishes forever / the stars are still shining, the faith of the starlight / the stars are still shining, until heaven is obscured
As the choir kept chanting, the pair were put in a transport van. Patiwat "Bank" Saraiyaem and Porntip "Golf" Mankong - the two thespians, now prisoners - calmly and defiantly flashed the three-finger-salute from "The Hunger Games" movies (and declared illegal by the military junta) as the van darted out of the garage to drive them to their prisons.
Thailand’s new cyber laws – Part 4: Bad for business, too!
Originally published at Siam Voices on February 25, 2015
In the fourth part of our series examining Thailand's new and controversial cyber laws, we look at the impact it can have on business - and it doesn't necessarily look very profitable.
In the last couple of instalments of this series, we have highlighted the pitfalls, flaws and loopholes of some of the new proposed cyber laws of the Thai military government. Obviously, since this blog mainly focusses on politics and media freedom, we have so far examined the bills with regards to cyber security, surveillance and its implications on censorship, civil liberties and privacy.
However, for some people and entities these aspects are simply not on the top of their priority list - and we’re not talking about the junta this time! No, this time we mean the economic sector. And it is often said from that direction that an effective, stable political situation is preferable - cynics would argue that democratic values are not economic factors.
The main selling point by the current military junta of the new cyber laws is to lay out the legal groundwork to improve the conditions for Thailand’s ”digital economy” and thus position the country more competitively, especially with the ASEAN Economic Community lurking just around the corner. Another objective is to integrate governance and state business better in to the ”digital economy” as well.
And there are some very good reasons to focus on that: With an internet penetration of 35 per cent (roughly 28.3m people) and an even higher percentage of mobile phone users (125 per cent or 84m people, in fact more than the actual Thai population!), there are a lot of opportunities to be made digitally (source and more stats here).
But when you take a closer look at the eight different cyber law bills, there are many passages that also potentially can spell bad business as well. As usual, the devil is in the details.
Let's start off with the Personal Data Protection bill (full translation available here). As the name of the bill implies, it is initially set up to (supposedly) protect personal data of every Thai online user and for that reason a committee overseeing that would also include representatives of three consumer protection NGOs on board. According to Article 7 of the new bill however, they are now gone and have been replaced by the Secretary of the National Security Council instead.
And it doesn't get any better as we encounter yet another example of a typical problem when it comes to Thai legalese:
The draft bill also imposes significant legal burdens on foreign tech companies as responsibility falls solely on the data controller. Such companies would also run a greater risk of being subject to legal action, said Dhiraphol Suwanprateep, a partner at Baker & McKenzie. (...)
He said the bill posed a challenge for the government's digital economy policy, as there is no clear distinction between "personal data processor" and "personal data controller". The draft only identifies a data controller as the person with the authority to control and manage his or her personal information.
"Data processor" typically refers to a third party that processes personal data on behalf of a data controller, Mr Dhiraphol said. In the absence of such identification in the bill, data processors such as internet service providers, web hosting providers, cloud service providers and content hosting platforms could be broadly interpreted as a data controller. (...)
"If there is no separate definition between data controllers and data processors, it will be difficult to enforce the law, as most technology businesses are dwelling on cloud-based services which are physically located outside the country," Mr Dhiraphol said.
"This will not attract foreign investors into Thailand, as stringent legislation would rather hamper businesses' innovative technology instead of promoting Thailand as a digital economy hub for the Asean Economic Community."
"Legal expert shreds data security bill", Bangkok Post, January 26, 2015
Another passage at Article 25 would affect a lot of different sectors as well:
Section 25: Any collection of personal data pertaining to ethnicity, race, political opinions, doctrinal, religious or philosophical beliefs, sexual behaviour, criminal records, health records, or of any data which may upset another person’s or the people’s feelings as prescribed by the Committee, without the consent of the Data Owner or the person(s) concerned, is prohibited, (...)
Following the words of the law, it would make it very difficult to use somebody's yet-to-be-defined "personal information" for any kind of work without their permission. For example, journalists wouldn't be able to use these sources for any critical investigation or marketing campaigns and wouldn't be able to implement social media posts (unless they write some crafty terms of services that nobody reads anyways).
Another crucial point of contention for many critics is the upcoming allocation of new frequency spectrum that would bring 4G mobile connection to Thailand (and hopefully soon and not as drawn-out as the farcical 3G auction was). However...
It also empowers the [Digital Economy Commission chaired by the Prime Minister] to order any private telecommunications operator to act or refraining from acting in any way and also compels companies to provide information on request as well as hand over executives for questioning.
The portfolio of digital economy laws also has a new frequency act that gives the final say in spectrum allocation to the Digital Economy Commission and emancipates the telecommunications regulator, leaving it in charge only of commercial spectrum and imposing strict budget controls on the former autonomous agency. (...)
But while on the one hand [the government] are signalling compromise with the aforementioned committee, the junta are also threatening that 4G will be delayed unless the laws are passed quickly, and of course everyone loves more bandwidth.
"Thai spying law controversy rages on", Telecomasia.net, February 6, 2015
And generally one of the biggest problems is that the cyber law bills are creating a bureaucratic monster:
Paiboon Amornpinyokait, an expert on cyber and computer law, said (...) they gave too much power to the new Ministry of Digital Economy and Society by allowing it to oversee too many areas.
They include areas currently under the jurisdiction of the National Broadcasting and Telecommunications Commission (NBTC) Bill, the Cyber Security Bill, the New Computer Crime Bill, the Personal Data Protection Bill, the Digital Economy Promotion Bill, and the Digital Economy Development Fund Bill.
Paiboon said the bills would result in too much centralised power and will give too much authority to officials or authorities, which could easily lead to abuse of power.
"Digital economy bills 'need to be amended'", The Nation, January 19, 2015
These passages and many other legislative pitfalls that we haven't covered yet show that this is not only a matter of human rights, free speech and personal privacy, but it also could have potentially serious implications for the economy and scare away potential foreign investors.
Just as the military junta tries to fix the economy and could be doing more harm than good, these batch of cyber bills could have the same effect as well if they're not being thoroughly amended or rejected by the junta's ersatz-parliament. As we explain in the next and last past of our series, there is definitely not a lack of criticism from all sides but a severe lack of justification from Thailand's military junta.
Translated sections of draft bills by Thai Netizen Network. You can read complete translations here.
THAILAND'S NEW CYBER LAWS: Part 1: Introduction - Part 2: Changes to Computer Crime Act - Part 3: Far-reaching and all-encompassing cyber security - Part 4: Bad for business, too! - Part 5: Admin error
Upcoming FCCT panel to feature Thai political heavyweights - if the junta allows it...
Originally published at Siam Voices on February 24, 2015 The Foreign Correspondent's Club of Thailand (FCCT) has just announced this upcoming panel discussion in March.
The Future of Politics in Thailand7pm, Wednesday March 11, 2015
Non-members: 350 Baht entry; Members: Free entryWhat kind if future does the military's reform programme promise for Thailand? And will there be space for existing political parties in this new future?
For the first time since the coup, the FCCT is pleased to host a high-level debate, by inviting some of the country's most experienced politicians to the club.
Alongkorn Polabutr, senior member of the National Reform Council and former deputy leader, Democrat Party
Chaturon Chaiseng, former Education Minister, Pheu Thai Party
Kasit Piromya, former Foreign Minister, Democrat Party
Phongthep Thepkanjana, Former Deputy Prime Minister, Pheu Thai Party
This really looks interesting because this indeed an illustrious high-profile panel. A couple of notes about the panelists:
Alongkorn Polabutr was considered by many as the prospect to reform and revive the ailing "Democrat" Party, as he was the most vocal advocate calling on his fellow party members to stop blaming vote-buying for the streak of election losses. However, in late 2013 - during the anti-Yingluck government protests and weeks away from snap-elections - he was practically demoted from his position as deputy leader of the "Democrat" Party. This likely contributed to his departure from the party last November but also, much to the dismay of many progressive supporters, to his joining the junta-installed and fully-appointed National Reform Council. Being a NRC member alone makes him a high-profile panelist.
Chaturon Chaiseng is regarded as stalwart from the era of former Prime Minister Thaksin Shinawatra, as he filled many positions in his cabinet: Prime Minister's Office Minister (2001–02), Justice Minister (2002), Deputy Prime Minister (2002–05), and Minister of Education (2005–06). After Thaksin's government was toppled by the 2006 military coup, his Thai Rak Thai Party was subsequently disbanded and most of its members, including Chaturon, banned from politics for five years. Chaturon returned to the Yingluck government in mid-2013 as Education Minister, but was putsched again in May 2014. He was one of the few to defy the junta's mass summons and appeared at the FCCT to give a press conference, only for the military to barge in, arrest him on the spot and bring him in front of a military court. He's currently out on bail and returns to the very same spot at the FCCT next month.
Kasit Piromya. It is often said that the diplomatic sensibilities of the former ambassador to Germany and Japan (especially by this author) are more akin to a wrecking ball. Especially during his tenure as Foreign Minister under Prime Minister Abhisit Vejjajiva (2009-11), he seemed to be solely focused on the fugitive, self-exiled Prime Minister Thaksin. In any case, if circumstances are right, he can be highly entertaining to watch.
Phongthep Thepkanjana is another ex-cabinet member of Thaksin Shinawatra (Minister of Justice, Minister of Energy, Minister to the Prime Minister’s Office - see a pattern?) and was Chaturon's predecessor as Education Minister in Yingluck's cabinet.
In any case, it should also be interesting to see, considering at least 50 per cent of the panel, if the Thai military will actually allow the event to take place or at least send a representative with in a humvee to "defend" the government's point of view.
Thailand's new cyber laws - Part 3: Far-reaching cyber snooping
Originally published at Siam Voices on February 20, 2015 In this part in our series examining the Thai military government’s new cyber laws, we look at the most controversial bill among the eight drafts: The Cyber Security Bill.
Any government nowadays has to adapt its laws and at the same to keep it up to date with technological advancement - which is a seemingly herculean task given their vastly contrasting respective pace. One issue many lawmakers are focusing on is cyber security. Given the growing reliance on internet access in our everyday lives and the increasing number cyber attacks, the legislative base to counter that are either still archaic (some by design) or in some cases simply non-existent.
Thailand is obviously not exempt and thus created the 2007 Computer Crime Act (CCA) - the problem is that the wording of the CCA is so vague that is has often been (ab)used for online censorship and the 2015 update doesn't fix these problems either (read previous part).
With the new Cyber Security Bill (full PDF and translation here), the current Thai military government is seemingly adding another legislative basis to combat cyber crime - but what it actually does is an assault on online freedom and personal privacy, starting with the creation of a new government agency:
Section 6: There shall be a committee called “The National Cybersecurity Committee” (NCSC) consisting of:
(1) Minister of Digital Economy and Society as Chairperson;
(2) Secretary of the National Security Council, Permanent Secretary of the Ministry of Digital Economy and Society, Permanent Secretary of the Ministry of Defence, Commander of the Technological Crime Suppression Division, the Royal Thai Police as 4 ex officio members;
(3) Not more than 7 qualified members appointed by the Council of Ministers (…)
As it can be seen from the make-up of the committee, its members are almost all from the military and police - all positions that have been or can be filled with people close to the current military government, who will be on the committee for 3 years (Article 9).
Section 7: The NCSC shall have the following powers and duties:
(1) to determine the approaches and measures for responding to and tackling cyber threats in the event of undesirable or unforeseeable situation or circumstance concerning security that affects or may cause significant or serious impact, loss or damage so that the NCSC becomes the centre of operation in the event of situation or circumstance concerning security in a timely and uniform manner, unless the cyber threat is such that affects military security, which is a matter within the powers of Defence Council or the National Security Council;
Section 14: The Office of the National Cybersecurity Committee shall be set up as a State agency having a juristic person, not being a State division or a State enterprise.
Section 17: The Office shall have the following powers and duties:
(1) to respond to and tackle cyber threats in the event of undesirable or unforeseeable situation or circumstance concerning security that affects or may cause significant or serious impact, loss or damage by issuing operation measures that take into account the degree of secrecy and the access to classified information; (…)
(3) to co-operate with State agencies or private agencies for the purpose of collecting information on cyber threats, the prevention and tackling of circumstances of cyber threat, and other information concerning the maintenance of Cybersecurity, to be analysed and submitted to the NCSC for consideration; (...)
(5) to monitor and speed up the operations of the State agencies involved in maintaining Cybersecurity, and report to the NCSC; (…)
(13) to perform other acts concerning national Cybersecurity as entrusted by the NCSC or the Council of Ministers.
While Article 7 and 17 are pretty much standard fare regarding its tasks, Article 14 hints that the NCSC has wider powers and fewer bureaucratic hurdles to overcome in order to act swiftly - which also potentially means less transparency. And whatever is meant in Article 17.13 with "other acts concerning national Cybersecurity as entrusted" by the Cabinet is highly unlikely to be ever publicly disclosed - maybe unorthodox ways to 'gain information'?
As the next excerpt shows, the NCSC will have so much power it can even take over command of other state agencies in a crisis:
Section 33: Upon the occurrence of an emergency or danger as a result of cyber threat that may affect national security, the NCSC shall have the power to order all State agencies to perform any act to prevent, solve the issues or mitigate the damage that has arisen or that may arise as it sees fit and may order a State agency or any person, including a person who has suffered from the danger or may suffer from such danger or damage, to act or co-operate in an act that will result in timely control, suspension, or mitigation of such danger and damage that have arisen. (...)
Section 34: In case where it is necessary, for the purpose of maintaining Cybersecurity, which may affect financial and commercial stability or national security, the NCSC may order a State agency to act or not to act in any way and to report the outcome of the order to the NCSC as required by the Notification of the NCSC.
Another interesting tidbit is in Article 18.3:
Section 18: For the purpose of the fulfilment of the objectives under Section 17, the Office shall have the following powers and duties:
(3) to enter into an agreement and co-operate with other organisations or agencies, both in the public and the private sectors, [both based domestic and abroad] in activities concerning the fulfilment of the Office’s objectives;
One way to interpret that is that the NCSC will seek "co-operation" from private corporations, including those providing social media platforms and messaging apps. In the past Thai authorities, in their quest to criminalize even mere Facebook 'likes' linked to unwanted content or dissent, tried to contact the company behind the messaging app LINE in order to access all messages - they didn't a reply, but nevertheless later boasted that they could monitor everything.
Nevertheless, Thai authorities would be empowered to snoop thanks to the already infamous Article 35:
Section 35 For the purpose of performing their duties under this Act, the Officials who have been entrusted in writing by the Secretary shall have the following powers: (…)
(3) to gain access to information on communications, either by post, telegram, telephone, fax, computer, any tool or instrument for electronic media communication or telecommunications, for the benefit of the operation for the maintenance of Cybersecurity.
The performance under (3) shall be as specified by the Rules issued by the Council of Ministers.
Yes, even the good old telegram is not safe from long arms of the authorities! It is self-evident that with that wording the NCSC will have far-reaching powers to look into the personal data of every Thai internet user. And given the paranoia of the military junta with social media, the potential for abuse of the law in the name of national (cyber-)security is nigh on endless. It remains to be seen if the aforementioned guidelines will ever be issued by the Cabinet when this bill is signed into law.
Translated sections of draft bills by Thai Netizen Network. You can read complete translations here.
THAILAND'S NEW CYBER LAWS: Part 1: Introduction - Part 2: Changes to Computer Crime Act - Part 3: Far-reaching and all-encompassing cyber security
Thailand's new cyber laws - Part 2: Changes to the Computer Crime Act
Originally published at Siam Voices on February 17, 2015 With the passing of eight new draft bills under the banner of "Digital Economy" by the Thai junta cabinet and awaiting approval by the ersatz-parliament, the National Legislative Assembly (NLA), the main focus of criticism is aimed at the cyber security bill and the amendments to the 2007 Computer Crime Act (CCA).
In this part, we take a look at the most crucial changes to the Computer Crime Act.
The old Computer Crime Act was itself a problematic piece of legislation when it was passed in 2007 due to the vague wording of certain sections. Particularly there’s a high legal ambiguity in Article 12.2, which punishes anything that is "likely to damage computer data or a computer system related to the country’s security, public security and economic security or public services" with 3-15 years in prison, and Article 14, which punishes any computer-related act that causes "damage the country's security or causes a public panic" (especially if it is "related with an offense against the Kingdom's security under the Criminal Code") with a maximum of five year in prison.
That led to many cases where people were charged for political expressions made online that were deemed by the authorities as lèse majesté, which almost doubles the potential punishment of the accused (as mentioned in our introduction previously).
Now these two passages has been mashed together into into one Article, which says:
Section 14/1 - Any person committing an offence that involves import to a computer system of false computer data in a manner that is likely to damage the country's security or cause a public panic must be subject to imprisonment for not more than three years or a fine of not more than sixty thousand baht [US$1,843] or both.
Section 14/2 - Any person committing an offence that involves import to a computer system of any computer data related with an offence against the Kingdom's security under the Criminal Code must be subject to imprisonment for not more than five years or a fine of not more than one hundred thousand baht [US$3,070] or both.
It’s not much different than the previous versions in terms of punishment, but the problematic vague wording (e.g. what constitutes "false computer data"?) remains. What's worse is the following Article 15:
Section 15 - Any service provider intentionally supporting or consenting to an offence under Section 14/1 or Section 14/2 within a computer system under their control must be subject to the same penalty as that imposed upon a person committing an offence under Section 14/1 and Section 14/2.
If any service provider can prove that they follow the instruction to restrain the dissemination of such computer data or destroy such data from a computer system as required by a Minister, the perpetrator is not guilty.
Under the new law, the intermediaries are subject to prosecution as well. Basically, if for example a webmaster has content that's deemed offensive on their site and doesn't remove it, then they can be charged - even if they didn't write it themselves. That’s exactly what happened to Prachatai webmaster Chiranuch Premchaiporn, who was accused of not deleting online comments from her website quickly enough that were deemed lèse majesté. The main problem in this case was how long is too long for somebody not to remove something seemingly offensive. In Chiranuch's case, it seemed the prosecutors more or less expected every webmaster to anticipate it even before the offense happens and to preemptively act against it. She was convicted and given a suspended jail sentence in 2012.
One of the major changes are the amendments to Article 18:
Section 18 of the Computer Crime Act of B.E. 2550 (2007) is added the following provisions as paragraph two and paragraph three:
"For the benefit of investigation and inquiry, in case there is a reasonable cause to believe that there is the perpetration of an offence to computer system, computer data, or any computer data storage devices under any laws, the superior administrative or police official under the Criminal Procedure Code or the competent official under other laws shall perform under this Act only the necessities for the benefits of using as evidences related to the commission of an offence or searching for an offender under the competent authorities indicated in paragraph one, paragraph two and paragraph three. The aforementioned officials shall request the relevant competent official to take action provided that their power of authority is limited under this Act.”
In simple words, authorities still need a court order in order to intercept online communication and it has to be specific. However, as the watchdog organization Thai Netizen Network points out, there's no limitation on how long these interceptions can take as compared to e.g. Article 25 of the 2008 Special Investigation Act, which allows access of 90 days (but permits unlimited extensions).
Also, Article 12 in the new CCA will punish cases which involves hacking of computer systems "that is likely to damage computer data or a computer system related to the country's security, public security and economic security" with up to 15 years in prison.
And finally in this short look, Article 31 already hints at the next part we'll be examining:
Section 31. Nation Cyber Security Committee (NCSC) shall be the central agency to control, monitor and assess operational performance of the competent official under this Act.
In the next part, we will look at the controversial new Cyber Security Bill, which seemingly could allow intrusive actions by the Thai authorities against internet users and the aforementioned National Cyber Security Committee will be an integral part of it.
Translated sections of draft bills by Thai Netizen Network. You can read complete translations here.
THAILAND'S NEW CYBER LAWS: Part 1: Introduction - Part 2: Changes to Computer Crime Act - Part 3: Far-reaching and all-encompassing cyber security
Thai junta lays groundwork for its own guided democracy
Originally published at Siam Voices on February 16, 2015 As the Thai military government pushes ahead with its so-called reform plans, the legal groundwork in form of some sort of reform continuation body is being laid out so that the generals will have enough power to influence Thai politics for the foreseeable future.
One line often purported by the Thai military junta is the need to "reform" Thailand's dysfunctional political system before there can be any return to elections or democracy in general. But one of the main motivations of the generals and their allies in the all-appointed government bodies, including the "National Reform Council" (NRC) and the "Constitutional Drafting Committee" (CDC), is to permanently exert control over an eventually elected government.
And exactly this seems to be happening:
Constitution drafters decided yesterday to set up a national reform body and empower it by adding it to the new constitution, so reform work and plans will be continued by future governments.
Constitution Drafting Committee (CDC) member Kamnoon Sidhisamarn proposed the idea of setting up the organisation, reasoning that if the agency's role is spelled out in the new charter, the National Reform Council (NRC)'s work would not be wasted.
"With this national reform body, NRC proposals can be synchronised not just for now, but for the next five years," he said.
"CDC agrees to set up, empower new reform body", The Nation, February 14, 2015
Basically it seems that they're creating an extra-parliamentary body that will be constitutionally enshrined and it also seems that they're going to stay longer than the usual four-year term of a government (unless they're going to change that as well), which hints at the long-standing problem in Thai politics that no elected government has stayed long enough in office to see their planned polices through, let alone even survive a full term (with the notable exception of former Prime Minister Thaksin Shinawatra).
To ensure that the reforms of the junta are actually being carried out, the drafters have put in these constitutional failsafes:
Under the proposals, those responsible for implementing reforms would be obliged to complete them within a specified time frame of between one and nine years.
The subcommittee has suggested that failure to complete reforms on schedule would constitute dereliction of duty — a criminal offence.
"CDC backs reform safeguards", Bangkok Post, February 13, 2015
That's at least two consecutive terms to put the "reform" plans to actions - or else face charges. That's apparently how the military junta and its government bodies doubles down on their project to fundamentally change the Thai political system and also to safeguard their undertaking, making a clear sign that the current powers-to-be are here to stay - even after a somewhat democratic election. Sounds familiar.
Thailand’s new (and controversial) cyber laws - Part 1: Introduction
Originally published at Siam Voices on February 10, 2015 The Thai military government has greenlit a large batch of draft laws that aim to pave the way for the digitization of governance and state business. However, they also come with a slew of strengthened cyber surveillance and censorship upgrades for the authorities.
The year was 2007. Social media was yet to be discovered by most people in Thailand as many were conversing on blogs or the still-popular web forums. The first ever iPhone was only available as an expensive import, 3G was still several years away and even broadband internet was just getting starting to become widely available.
That’s when the then-military government signed the 2007 Computer Crimes Act (CCA) into law. Initially drawn up to provide a legal groundwork to combat online scams and hacking, the main motivation behind the rather hasty drafting of the CCA was a YouTube video mocking Thailand’s King Bhumibol Adulyadej and the online video platform’s refusal to delete it despite requests from the Thai government - which subsequently led to a temporary block of the whole site for Thai users.
In the following years, the CCA became known for its crude implementation of online censorship and criminalizing political criticism, especially when it deals with lèse majesté. When somebody is being convicted of having allegedly committed a crime violating both the lèse majesté law and the Computer Crimes Act (especially Art. 12.2) - in practice, posting something online that is perceived insulting to the monarchy - the accused could face up to 15 years in prison for each violation of each law.
There were two notable cases that highlight the (ab)use of both laws: Chiranuch Premchaiporn, the webmaster of the Thai alternative news website Prachatai, was sentenced to a suspended prison sentence in 2012 for simply not deleting web comments quickly enough that were deemed lèse majesté, while Amphon Tangnoppakul was less fortunate. The man commonly known as ‘Ahkong’ or ‘Uncle SMS’ was imprisoned for 20 years for allegedly sending four SMSs insulting the monarchy (despite inconclusive evidence). After four years in jail, he died in May 2012 at age 61, arguably becoming a martyr to critics of the lèse majesté law.
All attempts at amending the CCA in whatever direction so far have gone nowhere, either because it got lost in the drafting process or no government stayed long enough in office to push it through.
Now, with the military in charge, the largest legislative change to the cyber laws seems imminent and it doesn't look good.
Last week, the junta’s cabinet approved in principle eight proposed bills which were claimed to prepare Thailand for the “digital economy”. The groups said they were in fact designed to restructure and tighten control of telecommunications and the internet in Thailand.
The junta-appointed parliament earlier passed a law to change the title of the Ministry of Information and Communication Technology (MICT) to the Ministry of Digital Economy and Society (MDES). The MDES will be the main agency overseeing the “digital economy”.
”Thai junta’s Digital Economy bills are national security bills in disguise: rights groups”, Prachatai English, January 14, 2015
While the main intention of the new batch of laws is officially to push for bigger integration of the internet in governance and state business with the ”digital economy” at the very top of the priority list to make the country more competitive, it also comes with a slew of sections that essentially results in cyber surveillance and monitoring.
The eight proposed bills (with links to some translated versions provided by the Thai Netizen Network) are:
- National Digital Committee for Economy and Society Bill
- Ministry of Digital for Economy and Society Bill
- Electronic Transaction Bill (amendment)[PDF] [Open Document]
- Computer-related Crime Bill(amendment) [PDF] [Open Document]
- Cybersecurity Bill [PDF] [OpenDocument]
- Personal Data Protection Bill [PDF] [Open Document]
- Digital Economy Promotion Bill
- Digital Development for Economy and Society Fund Bill
- Broadcasting and Telecommunication Regulator Bill (amendment)
- Electronic Transaction Development Agency Bill (amendment)
"Thailand’s Digital Economy-Cyber Security Bills [English translation]", Thai Netizen Network, January 15, 2015
The amendments to the Computer Crime Act and the new Cyber-Security Bill are at the center of the controversy. This is not just simply a case of legislation not being able to keep up with technological advancement, but rather the legal enabling of long-desired, ill-intended motives to be more in control of the flow of information online.
In the coming weeks this mini-series will look at the some of the controversial passages of the cyber law drafts and examine the severe implications of the laws for every internet user in Thailand.
Tongue-Thai’ed! - Tough week for Prayuth ends in another tirade
Originally published at Siam Voices on January 30, 2015 This is part XXIX of “Tongue-Thai’ed!”, an ongoing series where we collect the most baffling, ridiculous, confusing, outrageous and appalling quotes from Thai politicians and other public figures. Check out all past entries here.
It's been quite an eventful week in Thailand and a challenging one for the military government. Not only did it feel the need to assert its sovereignty after it was "wounded" by the critical remarks by Daniel R. Russel, US Assistant Secretary of State for East Asian and Pacific Affairs, on Monday (we reported), but also by summoning "inviting" the US Chargé d'affaires W. Patrick Murphy to express its "disappointment" (we also reported on that).
This diplomatic spat with the United States also kept Thai junta leader and Prime Minister General Prayuth Chan-ocha busy, who retaliated declaring that "Thai democracy will never die, because I’m a soldier with a democratic heart," and that it "It saddens me that the United States does not understand the reason why I had to intervene and does not understand the way we work."
Those who expected that things would calm down for the rest of the week were also disappointed, because that's when the military junta really just started to get going. Within 24 hours it summoned four former ministers from the cabinet of toppled former Prime Minister Yingluck Shinawatra (Surapong Tovichakchaikul, fmr Min. of Foreign Affairs; Nattawut Saikua, fmr Dep.-Min. of Agriculture; Chaturon Chaisaeng, fmr Min. of Education; and Pichai Naripthaphan, fmr Min. of Energy). This followed their public criticism of the military government, especially after the retroactive impeachment of Yingluck last Friday.
And then on Thursday, the junta ordered the Friedrich-Ebert-Foundation to cancel an event scheduled for Friday. The German political NGO intended to present their annual report on the state of the media in Asia.
Given these developments, there was a lot of questions for the military government. So, at a press conference on Thursday, the media were asking General Prayuth about the summons - and this is what he had to say:
Unlike last year's summons, the orders given to the four politicians in recent days were not written into official documents or publicly announced on television. Junta chairman and Prime Minister Prayuth Chan-ocha explained today that formal notices are no longer necessary. "No need. The [junta] directly contacts and invites these people," Gen. Prayuth said (...). "I don't want it to become big news. When we invite them, we use telephones to call them for talks." (...)
When a reporter asked whether anyone who publicly comments on the political situation in Thailand will be summoned for "attitude readjustment," Gen. Prayuth shot back, "Is it the right thing to say those things? Is it appropriate to say them in this time? That's all. You keep making this a big issue with your questions."
"Thai Junta Renews Summons Orders to Quash Criticism", Khaosod English, January 29, 2015
And this is where Prayuth really got started...
When the reporter pressed Gen. Prayuth to answer, the junta chairman launched into an angry tirade.
"You will be summoned too, if you keep asking many questions like this," he said. "You ask unconstructive questions. I want to ask you, is it a right thing to do, challenging my full power? Even though I have such full power, these people still challenge it like this. If there's no martial law, what's going to happen? You all know the answer. Do you want it to happen?"
He continued, "I know that the media wants it to happen, so that they can sell news ... I am [the head of] the government. I have full power. Is it the right thing to challenge it like this? I have relaxed my power too much already these days."
Responding to a reporter who noted that the NCPO seems to be intensifying its crackdown on criticism, Gen. Prayuth shouted, "So what? So what? In the past, you said I was incompetent. Now that I am intensifying, you are angry. What the hell do you want me to do?"
Swiftly changing the topic, the junta chairman also scolded the media for publishing a photo of him inadvertently pointing his middle finger, which appeared in Post Today.
"I am not mad on power. You don't understand it. You keep picking on me," Gen. Prayuth said. "Yesterday, for instance. How can you photograph me like that? I was pointing my finger. You bastard. You chose to photograph me pointing my finger. This is what they call a lowly mind."
"Thai Junta Renews Summons Orders to Quash Criticism", Khaosod English, January 29, 2015
Just to give you a general idea how much of a tirade it was, just take a look at this video of the aforementioned press conference. As regular readers know, General Prayuth's relationship with the media is always a tense one with the former always being sardonic - but this here takes the cake!
Note: If anybody knows a better translation for the Thai swear word "ไอ้ห่า", please let me know!