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Case
Case name
Somyot: Editor of Voice of Taksin Magazine
Lèse-majesté
Name of persons / Name of Media
Somyot Prueksakasemsuk
Case status
คำอธิบายสถานะคดี ภาษาอังกฤษ
Judgment / End of trial
Status of Accused
served penalty
Offense / order
Article 112 Criminal Code
Summary
Details of offence according to charge
Mr. Somyot Prueksakasemsuk is indicted as editor of Voice of Taksin magazine which published two articles deemed an offence to Penal Code’s Article 112 (lèse majesté).
Somyot was accused of committing the offence in two counts including;
Count One: Publicizing an article in Voice of Taksin No. 15 (exhibit no. J24), latter half of February 2010. The article ‘Bloody Plan, Shooting Over the Head of the Seniors” (“แผนนองเลือด ยิงข้ามรุ่น”) was published in ‘Khom Kwam Kid’ column under the byline ‘Jitra Ponchan’. In essence, it goes that the ‘insane old man’ plotted an assassination plan against Pol Lt Col Thaksin Shinawatra, former Prime Minister of Thailand. The entire clan of his is the same. They have been groomed by their master, and once they got the chance they wanted to kill their own master. They accused their master of being insane, stuffed him into a red drum and killed him cold-bloodedly.”
Count Two: Publicizing an article in Voice of Taksin No. 16 (exhibit no. J25), first half of February 2010. The article ‘The 6th October Event of 2010’ (“6 ตุลา แห่งพ.ศ. 2553”) was published in ‘Khom Kwam Kid’ column under the byline ‘Jitra Ponchan’. In essence, it goes that ‘one character “Luang Naruban of Ghost Hotel
” has been dictating Thai politics since the time Field Marshall Sarit Thanarat was Prime Minister until the 6th October 1976.’
The Verdict
A summary of the verdict of the Court of First Instance
It was alleged that the accused had committed an offence by defaming, insulting or threatening His Majesty the King Bhumibol Adulyadej of the Kingdom of Thailand by printing, publishing and distributing the magazine Voice of Taksin. It was a violation against the Penal Code’s Article 112. In his defence, the accused defended claimed that the enforcement of the Press Registration Act 2007 has resulted in the revocation of provisions in the Press Act 1941 whereby the Press Registration Act 2007 does not hold the editor responsible for any statement published in the publication he edits. Therefore, the accused cannot be held liable for such offence. But according to the Penal Code’s Article 2 second paragraph, it provides that "If, according to the law as provided afterwards, such act is no more an offence, the person doing such act shall be relieved from being an offender…" It should mean that the accused should only be relieved from being an offender against the Press Act 1941. But for the acts of the accused which are found culpable under the Penal Code’s Article 112, they shall not be annulled by the effect of the law and thus the argument of the accused was not convincing.
Act 2007 has resulted in the revocation of provisions in the Press Act 1941 whereby the Press Registration Act 2007 does not hold the editor responsible for any statement published in the publication he edits. Therefore, the accused cannot be held liable for such offence. But according to the Penal Code’s Article 2 second paragraph, it provides that "If, according to the law as provided afterwards, such act is no more an offence, the person doing such act shall be relieved from being an offender…" It should mean that the accused should only be relieved from being an offender against the Press Act 1941. But for the acts of the accused which are found culpable under the Penal Code’s Article 112, they shall not be annulled by the effect of the law and thus the argument of the accused was not convincing.
That the accused argued that he did not write the articles referred therein the allegation, the Court deems that the plaintiff holds the accused responsible for defaming, insulting or threatening the King by printing, publishing and distributing the magazine Voice of Taksin. Thus, the argument of the accused was not related to the acts as alleged and not of material importance to adjudicate. Thus, the Court decided to not review the issue as per the Civil Procedure Code’s Article 104 first paragraph coupled with the Criminal Procedure Code’s Article 15.
As to whether the accused had committed an offence against the Penal Code’s Article 112 or not, the accused adduced that he used to write articles for Voice of Taksin, and later replaced Mr. Prasaeng Sirimongkhol as editor since the 10th issue of the magazine. The accused was merely an employee of the Voice of Taksin and received 25,000 baht per month for his salary. The team divided their roles. Jit Polchan was a penname for Jakrapob Penkair, former Minister of the Office of the Prime Minister and with his being trustworthiness, his works had been consistently published in Voice of Taksin, every of his articles without any shrinking or editing. The Court deems that the prosecution witnesses included former officer worker, former photographer, and former art editor of the magazine and used to work in the same office with the accused, It did not appear that the prosecution witnesses had had any conflict with the accused before and therefore there was no reason to suspect that they would testify to incriminate the accused. Each of them seemed to have given evidence faithfully according to the experience they had had while working with the accused.
The four witnesses gave evidence consistently that the accused was the person having the final say with regard to the publishing any article and distributing Voice of Taksin and the accused’s name was shown as its executive editor. Since the four witnesses were working on membership, art and photography for Voice of Taksin issue no. 15 and 16, it did give much weight to their evidence. Also, the prosecution witnesses included those from the printing house and the distributor gave evidence to affirm facts pertaining to the behavior of the accused. The witness from the printing house affirmed that the accused was the person who hired them to make the print for the printing house for the Voice of Taksin issues no. 4 – 16. The witness from the distributor who helped to distribute the copies of the magazine made by the accused and the accused received the money by cashier cheque. All the evidence gave much weight to and affirmed that the accused was the only person in charge of the printing and distributing of Voice of Taksin issues no. 15 and 16. Thus, the argument that the accused was simply an employee failed to rebuke the prosecution evidence.
It is to be determined if the accused has printed, published and distributed Voice of Taksin with intent to defame, insult or threaten His Majesty the King Bhumibol Adulyadej of the Kingdom of Thailand or not.
The review of article “The Thinking Edge “shooting over the batches and the bloody plan” ("ยิงข้ามรุ่นกับแผนนองเลือด") in its issue no. 15, several prosecution witnesses gave evidence that the author used the language and historical context to allude to the fact that the Chakri Dynasty had looted its power from the King of Dhonburi. According to several prosecution witnesses, the phrase “it took place over the past two hundred years”, when compared to the royal history and history textbook, it would invariably referred to the period of the interregnum and the establishment of the Rattanakosin as the capital city. Therefore, the term “the forbearer” could only refer to the Chakri Dynasty.
The Court reviewed and found the author of the article had the intent to infer from his writing to the events according to the royal history and history textbook known and studied by Thai people in general. The intent was clear to hint to the audience as to who the characters were.
Since the content of the article was related to events that occurred just over two hundred years ago, the readers would be able to compare it to the time during the reign of the King of Dhonburi or the Taksin King and during the time Phra Phutthayotfa Chulalok ascended to the throne. When viewing together the terms “the forbearer” and “it took place over the past two hundred years”, it became obvious that the author referred to Phra Phutthayotfa Chulalok, King Rama I, the first king of the Chakri Dynasty. Particularly the phrase “Your forbearer was his subordinate. He was bred and raised up by him. When he was grownup, he just dismantled the person who raised him up. He imprisoned his own master accusing him of being insane, unable to rule the country, and stuffing him in a red bag and killing him so brutally”, was the event the author wanted to allude to the time Phra Phutthayotfa Chulalok was a foot solider of King Taksin. Then, Phra Phutthayotfa Chulalok has replaced him as the King and become the first king of the Chakri Dynasty whereas King Taksin became insane and was culled. The readers would automatically knew that "the forbearer” meant Phra Phutthayotfa Chulalok and “the ancestry” meant the Chakri Dynasty. And when viewing the phrase “all those descendants of these ancestors are just the same”, it would invariably mean the Kings of the Chakri Dynasty and when viewing the term “the law of karma will take its toll just now”, which meant the current situation, the readers would be made to refer to His Majesty the King Bhumibol Adulyadej.
The phrases “Whether it would be individual killing or massacre, this mentally ill old man had planned this for a long time. Jit happens to know a few things and he has heard from some “insiders” who have the virtuous mind and it helps him to think it through and learn all the twist and turn of the “kill plan”” very well", is indicative that the author wanted the readers to understand that the person he referred to was planning to kill someone. And it could be “the bombing of the Boeing 737 of the Thai Airways that Pol Lt Col Thank was about to board to Chiang Mai”, "someone ambushed from a tree in Lopburi”, “the car bomb in Bang Plad”, "assassination plans in the United Kingdom, Cambodia and Vietnam” as well as the massacre of the students and people during the 6 October 1976 event, particularly the plan to use Mr. Sondhi Limthongkul to run a smear campaign against Pol Lt Col Thaksin, just like what has been done to Mr. Pridi Banomyong, Dr. Puay Ungphakorn, Kruba Srivajaya, Dr. Boonsanong Boonyothayan, Phra Pimiltham, etc. and the brutal crackdown and massacre of prodemocracy movements.
that the author wanted the readers to understand that the person he referred to was planning to kill someone. And it could be “the bombing of the Boeing 737 of the Thai Airways that Pol Lt Col Thank was about to board to Chiang Mai”, "someone ambushed from a tree in Lopburi”, “the car bomb in Bang Plad”, "assassination plans in the United Kingdom, Cambodia and Vietnam” as well as the massacre of the students and people during the 6 October 1976 event, particularly the plan to use Mr. Sondhi Limthongkul to run a smear campaign against Pol Lt Col Thaksin, just like what has been done to Mr. Pridi Banomyong, Dr. Puay Ungphakorn, Kruba Srivajaya, Dr. Boonsanong Boonyothayan, Phra Pimiltham, etc. and the brutal crackdown and massacre of prodemocracy movements.
In this article, the term “Ammart” was also floated. However, it clearly showed the author had no intent to refer to the Ammart as argued by the accused. Even though some phrase alluded to the fact the planning was done from within the Praram 9 Hospital, which was in fact not the place in which His Majesty the King Bhumibol Adulyadej stayed hospitalized, and it was possible that the phrase might refer to someone else as argued by the accused, but it did not appear to bear any effect on the aforementioned phrases. Thus, the phrases which are unfounded are tantamount to being defamatory, insulting and threatening to the King as per the Penal Code’s Article 112.
In the article “The Thinking Edge: The 6th of October of 2010” in its issue no. 16, several prosecution witnesses gave evidence that the character, Lord Naruban, albeit a fictional character, but in the article, Lord Naruban seemed to have more power than the former Prime Minister. Thus, it makes it possible to interpret so. In addition, the article touched on the promulgation of the law for the establishment of the Private Property Bureau, it would not be impossible for the readers to infer to the Crown Property Bureau, since the promulgation of the law for the establishment of the Crown Property Bureau has to be specifically used for the establishment of the Crown Property Bureau. There has never been any law promulgated for the establishment of the Private Property Bureau.
The Court deems that in this article, though the author simply mentioned "Lord Naruban of the Ghost Hotel”, which was a fictional character, but the way it was written meant to relate to the actual events in the past. It prompted readers to think about various events and based on those events, it could hint to the readers as to who the Lord Naruban was. When viewing that the author attempted to link Lord Naruban to the events in 1948 during which it was alleged that the law was promulgated for the establishment of the Private Property Bureau, which should be known that it did not warrant a law for the establishment of the Private Property Bureau. But the author simply wanted to make the readers refer to the Crown Property Bureau, since it was the only Crown Property Bureau which has been established by the promulgation of law including the Crown Property Act, B.E. 2479 (1936), which was amended in 1941 and 1948, respectively. That the author wrote about the events in 1958 that Lord Naruban used his power through Field Marshal Sarit Thanarat “to kill the left leaning persons since he feared being dismantled” showed that Lord Naruban was the person behind the scene who held the power over Field Marshal Sarit. The author also wrote about events in 1973 that “Lord Naruban felt his lapdogs including Field Marshal Thanom Kittikachorn, Field Marshal Praphas Charusathien and Col. Narong Kittikachorn, had made too much of a fuss. Thus, Lord Naruban decided to topple them. He hid behind the rise of the people and used Gen. Krit Siwala to topple Thanom and his role in the Royal Thai Army, after which he would install his two men to form the two governments successively.” It showed that Lord Naruban had more power than Field Marshal Thanom, Field Marshal Praphas, and Col. Narong, who were viewed as the supreme leaders then. But they could not satisfy him, so he used Ge. Krit to topple them. By linking up all these events, one could understand how Lord Naruban must be the real supreme leader for a long time and was living in the same period as those characters. In addition, the author led the readers to believe that Lord Naruban was the person who pulled the string behind the formation of the government related to the event including the installation of Mr. Sanya Thammasak as the Prime Minister. Even after the elections, he held the power over the governments of Mom Rajawongse Seni Pramoj and Mom Rajawongse Kukrit Pramoj, the two former Prime Ministers. The author wrote the story to show how Lord Naruban used the rightists to kill the leftists and how he carried out the most heinous killing of the young compatriots at Lan Poh in Thammasat University. He had pulled the string behind successive governments and kept dismantling the forces of democracy power preventing it from ascending to power through the 6 October plot, the formation of the ultra-right wing nationalists, monarchists and pro-religious persons, the use of media to discredit his opponents, the triggering of events to use as a pretext for the use of violence. He hid himself behind the formation of the government and interim government in 1976 and the drafting of the Constitution to revive his power, the skillful use of his dictatorial power during 1976, the revocation of the Constitution B.E.2517 (1974) and replace it with the Constitution B.E. 2521 (1978) and then the installation of the Prem government which dominated Thai politics for another decade, all of which are unfounded information.
”, which was a fictional character, but the way it was written meant to relate to the actual events in the past. It prompted readers to think about various events and based on those events, it could hint to the readers as to who the Lord Naruban was. When viewing that the author attempted to link Lord Naruban to the events in 1948 during which it was alleged that the law was promulgated for the establishment of the Private Property Bureau, which should be known that it did not warrant a law for the establishment of the Private Property Bureau. But the author simply wanted to make the readers refer to the Crown Property Bureau, since it was the only Crown Property Bureau which has been established by the promulgation of law including the Crown Property Act, B.E. 2479 (1936), which was amended in 1941 and 1948, respectively. That the author wrote about the events in 1958 that Lord Naruban used his power through Field Marshal Sarit Thanarat “to kill the left leaning persons since he feared being dismantled” showed that Lord Naruban was the person behind the scene who held the power over Field Marshal Sarit. The author also wrote about events in 1973 that “Lord Naruban felt his lapdogs including Field Marshal Thanom Kittikachorn, Field Marshal Praphas Charusathien and Col. Narong Kittikachorn, had made too much of a fuss. Thus, Lord Naruban decided to topple them. He hid behind the rise of the people and used Gen. Krit Siwala to topple Thanom and his role in the Royal Thai Army, after which he would install his two men to form the two governments successively.” It showed that Lord Naruban had more power than Field Marshal Thanom, Field Marshal Praphas, and Col. Narong, who were viewed as the supreme leaders then. But they could not satisfy him, so he used Ge. Krit to topple them. By linking up all these events, one could understand how Lord Naruban must be the real supreme leader for a long time and was living in the same period as those characters. In addition, the author led the readers to believe that Lord Naruban was the person who pulled the string behind the formation of the government related to the event including the installation of Mr. Sanya Thammasak as the Prime Minister. Even after the elections, he held the power over the governments of Mom Rajawongse Seni Pramoj and Mom Rajawongse Kukrit Pramoj, the two former Prime Ministers. The author wrote the story to show how Lord Naruban used the rightists to kill the leftists and how he carried out the most heinous killing of the young compatriots at Lan Poh in Thammasat University. He had pulled the string behind successive governments and kept dismantling the forces of democracy power preventing it from ascending to power through the 6 October plot, the formation of the ultra-right wing nationalists, monarchists and pro-religious persons, the use of media to discredit his opponents, the triggering of events to use as a pretext for the use of violence. He hid himself behind the formation of the government and interim government in 1976 and the drafting of the Constitution to revive his power, the skillful use of his dictatorial power during 1976, the revocation of the Constitution B.E.2517 (1974) and replace it with the Constitution B.E. 2521 (1978) and then the installation of the Prem government which dominated Thai politics for another decade, all of which are unfounded information.
Thus, the article is deemed defamatory, insulting and threatening to His Majesty the King Bhumibol Adulyadej as per the Penal Code’s Article 112. The Court has found though the accused has graduated with a bachelor degree from the Faculty of Political Science and had been working at the Union for Civil Liberty, a non-governmental organization and worked as media workers to broadcast news to people for a long time, but the dissemination of news by the accused must be vetted and reviewed. Particularly, since the accused worked as the executive editor, he should have used his discretion and higher standard than other people. As he was the person to decide which articles were to be published, he would have been more careful and would have been aware if any phrases or word in the Thinking Edge articles published in Voice of Taksin issues no. 15 and 16 could be defamatory, insulting and threatening to His Majesty the King Bhumibol Adulyadej, and the information was unfounded. Still, he decided to select such articles for publishing in the magazine, have it printed and distributed to the public. The acts of the accused were therefore the intent to defame, insult, and threaten His Majesty the King as per the Penal Code’s Article 112.
That the accused argued that he had too short time to read the articles, and that the article referred to the Ammart, not at all about His Majesty the King, were not convincing. The defence evidence failed to rebuke the prosecution evidence. And since the accused had the Voice of Taksin printed, published and distributed, even though it contained the offensive articles, his acts have been committed as several distinct and different offences including two offence.
It is thus ruled that the accused is found guilty as per the Penal Code’s Article 112 for several distinct and different offences and shall be punished for each offence as per the Penal Code’s Article 91 by having him sentenced to five years per offence, or ten years for two offences and added by the imprisonment of the accused which had been suspended in the Red Case no. O1087/2552 of the Criminal Court for one year, altogether 11 years.
A summary of the verdict by the Appeals Court
The Appeals Court deems that the accused has argued that the Press Registration Act 2007 has resulted in the revocation of the Press 1941, and as a result, it has waived the editor form being held responsible, but the Court deems that the acts of the accused have been committed as an offence against the King, and it was not his liability as an editor.
Act 2007 has resulted in the revocation of the Press 1941, and as a result, it has waived the editor form being held responsible, but the Court deems that the acts of the accused have been committed as an offence against the King, and it was not his liability as an editor.
That the accused argued that he was not the author of the articles, the Court deems that according to the plaint, the accused has been accused of printing and distributing the magazine, the Appeals Court thus could not rule on this issue. And that the accused argued that the content of the articles referred to the Ammart, not His Majesty the King, but in this case, the prosecution witnesses including military officers, students and other people who have read the articles and could refer to His Majesty the King and all these witnesses have not known the accused before and have not had any conflict with him. The defence evidence simply failed to rebuke the prosecution evidence.
The Appeals Court concurred with the Lower Court and affirmed the sentencing of ten years to be added by the previous one year punishment in which the accused was found guilty for defaming Gen. Saprang Kalanamitra, the former Assistant to the Commander in Chief, altogether 11 years.
Trial observation record
Points presented to the Court by the prosecution
1. The phrases are deemed defamatory, insulting, or threatening to the King, the Queen, the Heir-apparent, or the Regent.
It was presented to the Court that the article in VoT no. 15 was an attempt to accuse HM the King of relating to the massacre of people after the Court ruled to have assets owned by Pol Lt Col Thaksin Shinawatra forfeited. The phrase that could be interpreted as a referral to HM the King includes the mentioning of the ‘clan’ that used to stuff their own master in a red drill and have him killed cruelly. The prosecutors claimed it refers to the history of Siam during the transition from Dhonburi to Rattanakosin Eras.
The article in VoT no. 16 features a character named ““Luang Naruban” of “Ghost Hotel” who has had different roles in Thailand’s political history. The phrase that could be interpreted as a referral to HM the King is the one about the law invoked to establish “Personal Property Bureau”, which the prosecutors claimed the author in fact wanted to refer to the “Crown Property Bureau”.
2. Somyot should be found guilty for being an editor and he was supposed to review the articles before getting them published.
It was presented to the Court by the prosecution that in both issues of VoT, Mr. Somyot Prueksakasemsuk, the defendant, was declared as editor. Therefore, Somyot should have checked the content of the articles prior to printing and should be held liable for the published content. As the magazine carried articles deemed defamatory, insulting, or threatening to the King, the defendant should be found guilty for violating Article 112.
Points presented to the Court by the defence
1. The articles made no mentioning of the monarchy
The articles should be read as a critique against the “Ammart System” (bureaucratic polity) with an emphasis on Gen. Prem Tinnasulanond, Privy Councilor, not HM the King. Illustrations made in the article include pictures of various people involved in the Ammart System. It would not occur to any person who read the article including the defendant that the articles were an attempt to slight HM the King.
2. The defendant was neither the author nor the owner of the publication and an editor cannot be held liable as per applicable law.
In his defence, the defendant claimed that he was not the magazine’s owner, but succeeded Mr. Prasaeng Mongkholsiri as editor, and thus was an employee of the magazine. The defendant did not write the articles indicted and was not the ‘Khom Kwam Kid’ columnist. ‘Jitra Ponchan’ was the alias used by Mr. Chakkaphob Penkhae who had been writing 12 pieces successively since before the defendant took the helm of editorship. Given the reputation of the author, the editor trusted him and respected him, and did not cut or alter any parts of his articles. In addition, the Printing Act (amended in 2007) does not hold editors responsible for content being published. It reflects the spirit of the current printing laws.
3. The defendant was accused since he was a dissident to the incumbent government
The defendant was charged simply because he was part of the opposition against the government. The arrest was made during the highly volatile political atmosphere. The defendant was known to express opinions opposite to the then government and he was accused of being part of the plan to topple the monarchy, the case of which was later dropped as the Department of Special Investigation (DSI) found there was no enough evidence to pursue it.
4. The People’s Alliance for Democracy (PAD), a group opposing the defendant, often claims their allegiance and loyalty to the monarchy and often invokes Article 112 to unjustly suppress their opponents. It has simply tainted the monarchy’s credibility. In addition, Article 112 carries disproportionately severe penalties and is deemed to infringe on people’s rights and liberties and an exemption should be made given that the criticisms are made with genuine interest.
Summary of trial observation
At least 22 witnesses were called to the bench by the prosecution (iLAW failed to attend certain witness examination hearings) including former staff of Voice of Taksin magazine, security officers from Internal Security Operating Command (ISOC) and the Royal Thai Army, former internees at DSI, the National Library of Thailand as registrar of magazine title, the printing house, academics and staff from Revenue Department.
Seven witnesses were covered in defence witness examination including the defendant, general public, academics on social science, law and history as well as a member of the National Human Rights Commission.
Witness examinations took place in five provinces including Srakaew, Petchaboon, Nakhon Sawan, Songkhla, and Bangkok as the prosecutors claimed the witnesses live in different provinces. In addition, Mr. Somyot has been held in custody at the Bangkok Remand Prison since 30 April 2010. Prior to each upcountry witness examination, Somyot would have been driven to different provinces in advance. Though a request for witness examinations to take place in Bangkok was submitted to the Court, it was denied. The first witness examination took place in Songkhla province as the prosecution witness claimed he found it not convenient to travel to Bangkok for the hearings.
