‘Contempt of court’, or courts showing contempt?

A labour rights lawyer has been imprisoned for defaming a court, leaving stranded his five-month pregnant wife. Yet this is far from the first time Thailand’s courts have used ‘contempt of court’ laws to target human rights defenders, political dissident and individuals who disagree with rulings.
 
On 1 March 2017, iLaw released a report detailing the real-life story of “Saharat” (pseudonym), 37, a labour rights lawyer imprisoned in Saraburi province since 20 April 2017.
 
The turmoil had begun on 19 May 2015 when Saharat and 51 laborers gathered in front of the Labour Court to protest the court’s closing of a case in which they were plaintiffs. The court reasoned that the group had failed to attend court on the day of the hearing. Saharat maintains that staff from the court had called him to inform that the hearing had been postponed.
 
At the demonstration, Saharat shouted, “Today I am sure that the Labour Court serves the interests of capitalists.”
 
Recalling the statement, a fellow lawyer and friend of Saharat reflects, “Usually Saharat is a man of few words. Almost always his wife speaks on his behalf. But I think that day, he must have lost his temper because he was so vested in the case.”
 
After this event, a prosecutor from Phra Nakhon Si Ayutthaya province indicted Saharat of insulting the court and violating the Computer Crimes Act. On 16 March 2017, the Court of First Instance levelled a suspended sentence of two years, during which Saharat must report to a probation officer every three months.
 
 
Phra Nakhon Si Ayutthaya, where Saharat was convicted (Photo from iLaw)
 
Simultaneously however the court ruled in favour of pursuing a separate charge of insulting the court against Saharat. On 20 April 2017, the court found Saharat guilty and sentenced him to three months in prison.
 
“While imprisoned, he cannot care for his wife who is five months pregnant. Subsequently his wife must care for herself and the child alone. In addition Saharat is in charge of ongoing labour rights cases whose hearings will take place while he is in prison,” stresses iLaw.
 
Saharat has accepted that he did commit the act of insulting the court and did make a corresponding Facebook status that broached the Computer Crimes Act. But he is adamant on fighting the charge of contempt of court on the following grounds.
 
First, under Thai law a single act, even if violating multiple laws, should not generate multiple punishments. Under such a situation, the offender is punished under only the harshest of the offended laws. Section 90 of the Criminal Code reads, “When any single act violates many laws, apply to the offender the law that levies the heaviest punishment.”
 
Second, Saharat plays several critical roles in society. He is the primary care-giver to his mother, who has been diagnosed with a hearing disability. His wife is five months pregnant. As a lawyer, Saharat remains responsible for some three or four cases that are proceeding while he is imprisoned.
 
Third, Saharat has never received a jail sentence, which warrants the court levying either a mild punishment or a suspended sentence. As a testament to his good character, Saharat had worked as a pro-bono lawyer at the Thai Volunteer Service, and as a legal specialist at both the Omnoi-Omyai Area Labour Union and the Labour Crisis Centre.
 
Saharat’s is not the first case where courts have levied criminal penalties to punish individuals for expressing disagreement with judgements. In 2015, Nattapon Kemngoen was handed a suspended sentence after he spray-painted an A in a circle — an anarchist symbol — on the Criminal Court’s name plate.
 
 
Nattapon Kemngoen
 
2016 saw the case of Sudsanguan Suthisorn or ‘Ajarn Tum’, a former academic at Thammasat University, who organised the placing of a wreath in front of the Civil Court in symbolic protest against the court’s blocking of the then Yingluck government from disbanding the anti-election People’s Democratic Reform Committee group. Sanguan was sentenced to a month in prison for her actions.
 
In the latest case, seven student activists were charged with contempt of court after singing songs and reading a declaration protesting Pai Daodin’s ongoing imprisonment in front of Khon Kaen university. Their hearing is scheduled for 19 May 2017.
 
During all four of these cases, courts ruled that these activities were improper in the vicinity of the courts through a civil — rather than criminal — procedure. The offended law in these cases is Section 31(1) of the Civil Procedure Code that prohibits ‘improper behavior in the vicinity of the courts’.
 
According to Aua-aree Engchanil, an academic at Chulalongkorn University’s Faculty of Law, the frequency of contempt of court cases is based in a key ambiguity: contempt of court is a civil issue that generates criminal penalties. Contempt of court can result in fines not exceeding 500 baht and imprisonment not exceeding six months, yet these penalties are written in the Civil Procedure Code.  
 
 
The campaign on 11 February that lead the charges against the seven students (Photo from The Isaan Record)
 
Generally speaking, criminal law must be interpreted strictly: there is no crime and no punishment if there is no corresponding law. This strictness is important since criminal punishments may affect the the rights and freedoms of people. Civil law, on the other hand, places less of an emphasis on the letter of the law. Law is interpreted in accordance with the specific contexts of each case. There are usually no limitations on punishments since cases are usually related to variable assets and property.  
 
Courts then exercise unusual and special powers in contempt of court cases. Civil law and procedures form the basis of contempt of court penalties, even though most civil cases relate to assets and property. Contempt of court is strangely not regulated by criminal law, the system actually related to the banning and punishment of acts.
 
Aua-aree points out two problems in this civil-based adjudication of contempt of court. First, the boundaries of what constitutes contempt of court have never been defined clearly. Second, judges adjudicating contempt of court cases have special discretion to make convictions, as the same processes of investigation administered by the police and attorneys in criminal cases are not applied.
 
Saharat’s lawyer believes that the court in Phra Nakhon Si Ayutthaya has a mind to view his client’s appeal favorably, as the evidence in favour of Saharat is significant. Ultimately however, the fate of the labour rights lawyer — and his expecting wife — rests in the hands of the court.
 
“Saharat is a calm and level-headed person. Since we were married, I have found Saharat to be like cool water. Myself, I am a hot-headed person, like hot water. Yet we can get along, he and I,” Saharat’s wife reminisces. 
 
 
Sudsanguan Sutheesorn in front of the Civil Court on Ratchadaphisek Rd., Bangkok, on 8 November 2016 (Photo from Matichon)