New Mandala

10 responses so far ↓

• 1 Ricky // Dec 22, 2008 at 4:05 pm

  Some months ago after the arrest of Harry Nicolaides I called in at the Australian Embassy Bangkok to ask about his fate. The Australian official I spoke to declined to give me any information whatsoever about the case and what assistance was being provided to Harry.
  This leaves me, as an Australian resident in Thailand, concened that one day I might say or write something which somebody takes offence to and land up in a similar predicament with apparently no help from the government of Australia.
  His Magesty the King of Thailand has publicly expressed his unhappiness about the Lesse-majeste law and made it clear that it troubles him when he has to pardon foreigners found guilty of the offence which is his normal practice.
  Considering his remarks my view is that people who prosecute lesse-majeste cases hold their monarch in contempt.

• 2 Roger // Dec 22, 2008 at 4:12 pm

  It would be very interesting to find out who is the complainant against Harry. In Thai law, for a criminal complaint to be lodged with the court, there must be a complaining victim. In some criminal cases the prosecutor can be the complainant, even though he was not personally harmed by the activity. I think this is the case with lese majeste; however, there may be a complainant other than the prosecutor.

  This case is somewhat bizarre. Given what we have been told about the offense it doesn’t seem possible that it went to prosecution. Of course once guy was arrested the prosecution is in a bind. The prosecutor won’t want to admit he lodged a case without sufficient evidence for continuing, but since it’s against a foreigner it isn’t a big deal. Unless the original complainant is a very influential person. I have no idea how to find this information (in other countries it would be a matter of public record, but in Thailand it’s probably a state secret).

• 3 silverberg // Dec 24, 2008 at 8:39 am

  The LM laws needs repealing, but doing so would remove a powerful tool of oppression and suppression from the police inventory. This is really the problem.

• 4 Nick // Jan 1, 2009 at 5:59 pm

  Who is to repeal them? The trouble with lese majeste is that any Thai that tries to repeal it within the law will be inevitably charged with lese majeste.

• 5 Frank G Anderson // Jan 1, 2009 at 9:56 pm

  I hate to be too activist in this, but I firmly believe that unless a committee gets together and goes the legal route – to the courts – to get the law repealed and modified, not much will be done. It will have to be an aggressive but highly professional effort with Thais and foreigners involved, as well as perhaps an international organization. We need some legal comments on this.

• 6 Joy // Jan 4, 2009 at 2:44 am

  Dear Frank G Anderson,
  I like your suggestion. Right now there is a group on Facebook that seeks for members who call for the repeal of the laws. If help from legal experts and the international community are added, perhaps it would be possible to work towards having these laws repealed in the near future.

• 7 Frank G Anderson // Jan 4, 2009 at 12:54 pm

  I sent the following on to the Thai Administrative Court in light of its recent defamation (lese majeste type) threat against a senior police officer. The process here in Thailand of allowing public occupancy of sub-standard and unsafe facilities has become a lethal legend.

  4 January 2009

  สำนักงานศาลปกครอง เลขที่ 120 หมู่ที่ 3 ถนนแจ้งวัฒนะ แขวงทุ่งสองห้อง เขตหลักสี่ กรุงเทพฯ 10210 โทร 0 2141 1111 สายด่วนศาลปกครอง 1355
  Suchat Weroj
  Secretary-general of the Administrative Court

  Dear Sir:

  Defamation vs. Legitimate Criticism, Public Occupancy Permits

  Recently you were reported in the local media as issuing a warning to deputy police commissioner-general Jongrak Juthanon, who had said an investigation into the Santika Club’s history had found that its application for a license in December 2004 had been turned down by the city police on the grounds that the premises did not conform to standards. However, he added, the pub had opened anyway following an Administrative Court injunction pending a ruling.

  According to the local media reports, you have indicated that the senior police officer “is likely to be deemed contempt of court.”

  I am sure you are well aware that building safety standards in Thailand are far below those in the west and Europe. Buildings are often not inspected or are given fraudulent certificates to operate. Then a disaster, such as that on 31 December 2008, occurs and no one wants to accept responsibility.

  I have approximately twenty years’ experience in building and civil engineering inspection, and can state without reservation that no building should ever be allowed to operate and to house members of the public if a safety inspection permit has not been first properly issued after the building passes inspection. Allowing such a business to operate may be deemed not only in violation of common sense, but appear to violate other aspects of laws and regulations.

  From various reports appearing in the media, including eye-witness statements, it seems as if the pyrotechnics that were used ignited the ceiling and triggered the larger fire. Whether this is the case or not does not obviate the fact that the building did not pass inspection, and as a result, should not have been occupied or allowed to operate as a public venue.

  The factors that led to the 31 December 2008 disaster will be determined by authorities, but the absolute need to ensure a certificate of occupancy is required before people are permitted to enter or reside in the building is undeniable. The occupation of the club that night by members of the public, combined with unknown other factors, led to the disaster and deaths of sixty two people and well over 100 injuries. All of this could have been avoided by not permitting the owner, in the first place, to operate the club.

  Comments such as the above, as well as those of the senior police officer, should not be construed as contempt of court. Indeed, the warning of contempt citation might unintentionally appear more an order to silence query or criticism than a legitimate concern for alleged contempt of court.

  Thai courts, as well as others around the world, have an appeal system that is based on seeking justice and decisions that are fair to all. From Court of First Instance to Appeals Court to Supreme Court and/or Constitutional Court increasingly senior levels of judicial review are not only allowed but required to attain justice – which often leads to reversal of earlier decisions. Surely such reversal, or appeal attempts to obtain such reversal, is not contempt of court but the right of litigants to obtain fair and just decisions.

  Public statements that reflect on this process, or public statements by officials, experts, members of the general public or others that openly question court decisions or court actions should not be misconstrued as contempt.

  In a wonderfully gracious statement by His Majesty, he has indicated that even his person is not above criticism because criticism, when it is warranted and balanced, when it is legitimate and comes from knowledgeable persons, helps society achieve the highest standards of justice as well as helping the individual concerned improve himself. Surely the Thai courts are not lacking in the need to improve themselves in various ways, and as such they are imperfect. Being imperfect, they then should be subject to legitimate criticism and inquiry.

  In this light, then, deputy police commissioner-general Jongrak Juthanon, who referred to the apparent and now publicly admitted by you fact that “the lower court granted the injunction in July 2004 on grounds that the pub operators met the legal qualifications [Is a certificate of occupancy not a legal requirement?] to operate an entertainment venue and that police refusal to grant them a permit caused them to get arrested for operating without a permit. He said, however, that the Supreme Administrative Court in October that year withdrew the injunction as it disagreed with the lower court’s decision.

  It thus appears that the lower court’s decision in favor of the club’s owners was incorrect (is this not why the decision was reversed?) as the injunction was withdrawn in October that year. This chain of events, as one might cite it, led to the terrible New Year’s Eve 2008 tragedy.

  In review, several factors become apparent in what caused the disaster. One is lack of safety inspection and certificate of occupancy. Another is the conflict between police concern for public safety and the granting of an operating permit by the lower court. Another is the conduct of fireworks inside the building on a stage that was apparently not inspected or lawfully approved for such use.

  Here in Nakhonratchasima, some years ago, I am sure you remember the terrible tragedy when over 200 people were killed when an entertainment complex collapsed. It had been permitted to operate and was in violation of safety and design standards. Only one person in the whole process was imprisoned.
  Thai courts like any courts in the world are not perfect. They can and do make mistakes. Judges can and do overlook evidence or make decisions that later turn out to be wrong for whatever reason. Asking the public or officials in a democracy not to express concerns about court decisions, warning them not to express criticism of the courts in terms of court decisions or other matters seems to violate constitutional and other safeguards that Thai people, under a democratic form of government, are entitled to.

  Please allow me to cite an example. This last November 2008 I was in the United States visiting my son in the state of Connecticut. He wished to install a wood stove to help heat the home during the winter. This item is a very deep safety concern item as wrongful installation could result in carbon monoxide poisoning or fire leading to death.
  We obtained a building permit from the local town building inspector and proceeded on our own to install the stove and outlet pipe according to local and manufacturer’s standards. Once the stove was installed, we did not operate it until we had arranged a safety inspection with the same inspection official. He came to the home, inspected and asked several questions, and after being assured, he then signed off on a certificate allowing us to operate the stove.
  Later, that same official returned for another inspection when we became concerned when a dual purpose alarm, necessary before installing the stove, was activated. It turns out that new paint on the stove was what was triggering the alarm and that the rest of the installation was operating properly and safely as long as safety procedures were always followed.

  Fire is a terrible thing, as you know and as was so horribly demonstrated at the Santika Club on 31 December 2008. It is absolutely essential that no public occupancy of buildings be permitted unless a certificate of occupancy is provided first. That certificate must also always be accompanied by a legitimate insurance coverage that was also based on an inspection by a qualified insurance agent.

  As to competency and job performance of local Thai inspection officials, allow me to cite one more anecdote. Some years ago when we completed our new home here in Meung Korat we asked the local electrical authority to inspect the electric wiring before we were allowed to connect to the main power line. When he showed up all he did was say, “A house this big certainly has correctly-installed wiring,” and then signed off. About two years later we had an electrical short caused by lack of a safety cutout that should have been installed but was not, and that should have been discovered during an inspection that was not provided. So the local inspector’s lack of doing his job cost us over 70,000 Baht in wiring replacement.

  These comments are provided to add support to the need here in Thailand to begin enforcement of inspections at all facilities used by the public and to maintain refusal to allow them to be operated unless they have been inspected and approved structurally and in all other aspects that help safeguard public safety. No public occupancy should ever be permitted unless a certificate of occupancy has been provided AND a separate insurance coverage, based on inspection, has been provided before opening.

  Here in Thailand, most recently some 62 people have died because of a preventable series of circumstances. Early police refusal to grant an operating permit, and current police concern that such granting of operating permit led to these deaths, seems legitimate. Unless the court, it seems, was in possession of a certificate of occupancy from some authorized agency, it can be deemed that it should not have become involved in a process that led to the building being occupied by members of the public.

  Your comments, in Thai or English, on the above will be deeply appreciated.

  Thank you so much for your kind response.

  Sincerely,
  Frank G Anderson
  American Citizens Abroad Representative, Thailand
  Personal Comments

• 8 Ralph Kramden // Jan 4, 2009 at 5:31 pm

  Frank raises an interesting point here and I am not sure that there shouldn’t be a better thread for this.

  Yesterday, the Administrative Court issued a long statement essentially suggesting that Police Commissioner General Jongjak Juthanon’s comments on the Santika fire likely constitute contempt of court.

  Jongjak had pointed out that the police had not issued a permit to Santika but that this had been challenged in the courts. The latter essentially allowed the club to operate. The police appealed, but the case was apparently unresolved.

  (Interestingly, the Bangkok Post web board yesterday removed comments that suggested similar things).

  Secretary General for the court, Suchat Weroj essentially claimed that the policeman cannot put any blame on the courts because they decide on matters of law and can therefore do no wrong. Sound familiar?.

  This statement was read out in full on NBT.

  This is not the first time that one or other of the courts has used threats of contempt against critics. This seems to be a trend that began after the famous April 2006 speech.

  If the courts are to be completely beyond reproach, not only is freedom of speech challenged, but there is a real risk that courts used for political purposes will be protected. Again, does this sound familiar? An independent judiciary is one thing to aspire to, but this emerging power is quite another.

• 9 Ralph Kramden // Jan 4, 2009 at 7:58 pm

  By the way, I recall that the policeman mentioned in my earlier post, Jongjak Juthanon, is one of those PAD blamed for the October 7 clash with police – see Bangkok Post, 9 Oct 2008.

  One just has to wonder if this is another case of anti-Thaksin retribution on the part of the supposedly neutral courts.

• 10 Michael // Jan 6, 2009 at 2:13 am

  Thank you Frank Anderson for writing the clear & very well-argued letter quoted in full in his post above. I agree entirely with his post, including, & especially, the parallel he draws with the use of the LM law. (The fact that defamation – i.e. defamation of individuals, including public officials – is also a criminal charge, which is able to be used in similar ways, also needs looking at.)

  I agree with Ralph Kramden that a separate thread would be a good idea, since these are pressing & immediate issues that many NM readers are sure to want to discuss. To continue the discussion on this particular thread, which is keeping alive a discussion focused on Harry Nicolaides, now entering his 5th month of imprisonment without trial on a charge of LM, may detract from an issue which is becoming daily more urgent.

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