Dear Daranee: The Limits of Inhumanity in a Time of Crisis
Written by Elizabeth Fitzgerald
Produced by Maria Geland
On 29 August 2009, Daranee Charnchoengsilpakul, a 46-year old journalist and red-shirt speaker, was sentenced to eighteen years in prison for allegedly committing three acts violating Article 112 of the Thai Criminal Code. Article 112 prescribes punishments for the crime of lèse majesté, or speaking against the royal institution: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years” ["ผู้ใดหมิ่นประมาท ดูหมิ่น หรือแสดงความอาฆาตมาดร้ายพระมหากษัตริย์ พระราชินี รัชทายาท หรือผู้สำเร็จ ราชการแทนพระองค์ ต้องระวางโทษจำคุกตั้งแต่สามปีถึงสิบห้าปี"]. In the five years since the 19 September 2006 coup, there has been an exponential increase in charges filed in Article 112, from from 33 charges filed in 2005 to 478 filed in 2010.  This rise in cases both contributes to and reflects the broader political crisis and deep divisions in Thai society around access to justice, participation in rule, and the relationship of the monarchy to democracy and the rule of law. In Daranee’s case, her alleged violations of Article 112 were committed during just over 55 minutes of speech she made during political rallies in July 2008. These 55 minutes were recorded by plainclothes police from the Chana Songkhram police station. The transcript they made then became the basis of the charges filed against her. Daranee pled not guilty: she acknowledged that she was the person who spoke the 55 minutes of speech in question, but she denied that this implied that she was guilty of defaming, insulting, or threatening the monarchy.
Daranee’s trial was carried out behind closed doors and journalists and court observers were prohibited from entry, despite protests from her and her lawyer that this was in conflict with the Constitution. Her trial was closed to the public due to an undefined threat to “national security,” and concerns that the re-articulation of her dangerous speech might lead to unrest.  To be clear: this was the reason given even though Daranee was on trial for speeches that she made in public and even though she herself was the only person who suffered concretely as a result of the words she uttered. There is no evidence that those whom she mentioned in her speech — the king, queen, and chair of the privy council — were harmed by the words she spoke.
Prior to Daranee’s arrest and prosecution, videos of her public speeches were available on Youtube. After her arrest and prosecution, they became difficult and then impossible to find. Whether they were removed by those who posted them or by Youtube at the behest of the Thai government, the result is that audio or video transcripts of her speech are unavailable. Fragments of her speech are available in the 32-page court judgment, which was published by ฟ้าเดียวกัน [Same Sky] magazine shortly after her conviction.
Those who are accused and prosecuted for violations of Article 112 in present-day Thailand do not know that they have violated the law until the knock on the door arrives. Those charged under Article 112 learn of the location and form of their violation when they are charged, and the prosecutor’s job is to demonstrate the danger (to the royal institution, to national security) of this violation during the trial. Although the court judgments in the Article 112 cases should illuminate the dangerous action or speech in question, in the case of Daranee’s judgment, what is instead illuminated is the gap between the alleged crime and the harsh punishment issued. How does 55 minutes of speech come to equal a sentence of 18 years, or a punishment of 1 year for every three minutes and five seconds of speech?
Compounding the severity of her sentence, Daranee has severe jaw disease and has been in need of surgery since late 2009. At no point has she been granted bail or temporary medical release, despite an affidavit from the prison physician attesting to the severity of her illness and his inability to resolve it within the confines of the prison infirmary. The court’s reason is that she committed a serious crime, and her life is not yet endangered by the disease in her jaw.
The complaint that Daranee’s closed trial was unconstitutional was finally examined in 2011, two years after the fact. In the May 2011 comment by the Constitutional Court, they concluded that the closed trial was not unconstitutional, since both the accused and the accused’s lawyer were present. Despite this comment, on 15 December 2011, the Criminal Court made a new judgment in her case, reducing the punishment to 15 years rather than the original 18. This equates to a punishment of 1 year for every four minutes and seven seconds of speech.
In the present time of crisis, the courts are falling short and in the gap opened by the court’s failure to protect justice, a shapeshifting ideology (of royalism, of the normalization of violence against those deemed less than human) that serves as a justification for repression is becoming active. At times, particularly given the potential sanctions for criticizing the monarchy, or even the judiciary and other institutions that protect the monarchy, challenging this murky power, and its denial of humanity, seems impossible. The judicial process removes Daranee’s humanity through the conviction, through the denial of bail for necessary medical treatment, and through the daily humiliations which constitute life in prison. One way to challenge this, it seems, is through very concrete, very specific interventions.
Shortly after Daranee was sentenced, members of Social Move [สมัชชาสังคมก้าวหน้า], a progressive activist group, began writing her letters. They wanted to do something about her case, but did not want to risk arrest themselves. So, rather than protest by circulating a petition calling for her release, engaging in direct action to critique the law, or writing letters to the authorities, they launched a project called “Letters to Da” [จดหมายถึงดา]. They asked people to write letters to “Da,” which is Daranee’s nickname, in their own handwriting, sending news of what was taking place, and without writing about political topics, because it was prohibited by the prison authorities. They asked people to write letters to remind her that she was not forgotten. People sent them the letters, then they passed them on to Daranee, and posted many of them to Prachatai, a Thai online news source. Nearly 80 letters were posted in total, although many hundreds more were written to Daranee.
The rise took place throughout the intervening years, from 33 charges filed in 2005, to 30 filed in 2006, 126 filed in 2007, 77 filed in 2008, 164 filed in 2009, and 478 filed in 2010. See ประชาไท, 17 ธ.ค. ๒๕๕๔, “‘แท่งอัปลักษณ์’ แสดงสถิติคดีหมิ่นฯ กลางถนนราชดำเนิน (Prachatai, 17 December 2012, “‘Hideous Bars’: Display of LM case statistics in the middle of Ratchadamnoen Road”). A lack of public, open information means that the outcomes of all of these charges filed is unknown.
Elizabeth Fitzgerald, “Justice on Trial: Darunee Charnchoengsilpakul and the Constitutional Court,” New Mandala, 21 February 2011, http://asiapacific.anu.edu.au/newmandala/2011/02/21/justice-on-trial-
darunee-charnchoengsilpakul-and-the-thai-constitutional-court/, Accessed: 10 October 2011.
The original Thai-language summary judgment can be found in ฟ้าเดียวกัน ๗.๓ (ก.ค. – ก.ย. ๒๕๕๒), ๒๐๐-๒๓๑ [Fa Diew Kan [Same Sky], 7.3 (July-September 2009), 200-231]. Fa Diew Kan also published an English translation of the summary judgment and it can be found in ฟ้าเดียวกัน ๗.๔ (ต.ค. – ธ.ค. ๒๕๕๒), ๑๕๐-๑๕๑ [Fa Diew Kan [Same Sky], 7.4 (October-December 2009), 130-151].
Elizabeth Fitzgerald, “Are Secret Trials Compatible With Liberties and Rights,” Prachatai, 25 July 2011, http://www.prachatai.com/english/node/2668, Accessed: 15 October 2011.