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On August 17, three Hong Kong students, leaders of the Umbrella Movement in 2014, were sentenced for daring to call for the protection of democratic process. Joshua Wong, Alex Chow, and Nathan Law received prison terms of eight, ten, and eight months, respectively, from the Hong Kong Court of Appeals. Their nominal crimes were unlawful assembly (Wong and Chow) and inciting others to participate in unlawful assembly (Law). But make no mistake: by targeting these three young activists, both the Hong Kong government and Beijing aimed to punish them as individuals as well as send a warning to other would-be democracy activists.
Speaking before the verdict was rendered, Wong said, “There’s no longer rule of law in Hong Kong, its rule by law.” What he so poignantly identified here is a pattern in the central Chinese government’s dealings with Hong Kong. Rather than silence opposition directly, as Beijing is apt to do within the borders of the PRC, or use extrajudicial violence to silence dissidents as it did by kidnapping dissident Hong Kong booksellers last year, China is increasingly relying upon a selective application of the law to force Hong Kong citizens to follow the party line. In other words, in order to effectively silence opposition voices, it relies upon judicial decisions that may be legally correct but stand opposed to justice and democracy.
Only two days prior, another activist protesting authoritarianism in Asia received his own prison sentence. On Tuesday, August 15, three judges in the Khon Kaen provincial court in northeastern Thailand sentenced Jatupat Boonpattararaksa, widely known by his nickname, Pai, a law student and democracy activist, to two and a half years in prison. Pai’s nominal crime was to share a BBC Thai article about the new king, Rama X, or Maha Vajiralongkorn, on Facebook.
As with the Hong Kong students’ case, the imprisonment of Pai may be legally correct, but the actions for which he is being punished exceed those named in the court decision. Also similar to the three Umbrella Movement activists, Pai is guilty of daring to imagine a more just and democratic polity in his country, in sharp contrast to the one being built by the National Council for Peace and Order, which came to power in the May 22, 2014, coup. Putting these individuals behind bars may make the regimes they challenge feel temporarily more secure, but they will leave an impact on the prospects for democracy and the rule of law in the region no less costly than the use of extrajudicial violence.
The Umbrella Movement for which Chow, Law, and Wong were sentenced was a 72-day occupation of Hong Kong’s central district, which began when students took to the streets to protest the August 31, 2014, decision by the Standing Committee of the National People’s Congress requiring candidates for elected office to be prescreened by Beijing. Many interpreted this decision as circumventing the promises of universal suffrage and democratic elections enshrined in Hong Kong law when the city was returned to China in 1997.The student movement had specific goals, the most important of which was to revise the universal suffrage law to either remove or decrease the influence of the electoral committee that would prescreen candidates for office. At the same time, it was a broader celebration of Hong Kong as a beacon of free speech, free assembly, and democracy in contrast to the rest of China. Artwork at the protests celebrated Hong Kong’s legacies of democracy and humanitarianism, while other pieces mocked the Chinese Communist Party and President Xi Jinping for their regime of censorship.
The Xi administration has made clear its intolerance for opposition within the borders of the PRC, but up until the past two years, it had allowed Hong Kong press, NGOs, and elected officials to voice their displeasure with their rulers. Even the Umbrella protests spanned nearly three months, ending with a series of court cases rather than the violence of Tiananmen. Yet this has not stopped Hong Kong officials close with Beijing from using laws to quash dissident opinions within the special administrative region. Last year, for example, six elected members of the Legislative Council of Hong Kong, or Legco,were disbarred for having sworn “insincere” oaths—code for having expressed intentions to dissent against Beijing’s designs on the city. Two members had directly sworn fealty to the “Hong Kong nation” as opposed to the People’s Republic of China, whereas four others were disqualified simply for a “lack of solemnity” in their oaths. This ousting, although within the letter of the law, was unprecedented. The disqualification of the final four was based upon Beijing’s application of Article 104 of the Hong Kong Basic Law, which reinterpreted the condition that legislators “swear” their oath of office to state that anyone “who intentionally reads out words which do not accord with the wording of the oath prescribed by law, or takes the oath in a manner which is not sincere or not solemn” could be barred from public office. This is what Joshua Wong had in mind when he made his rule-by-law comment—legal interpretations applied to silence opinions Beijing finds threatening.
The recent sentencing and imprisonment of Pai in Thailand is another example of this rule-by-law phenomenon. On August 15, 2017, Pai was sentenced to two and a half years in prison for lèse majesté. Article 112 of the Thai Criminal Code defines the crime and punishment: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished (with) imprisonment of three to fifteen years.” This is the first completed prosecution of a case of lèse majesté under the new king, Rama X (or Maha Vajiralongkorn), who took the throne in late 2016 following the death of his father, Rama IX (Bhumipol Adulyadej). Over 2,600 other people also shared the article for which Jatupat was prosecuted, but he is the only one to have been accused, indicted, convicted, and sentenced.
The lèse majesté complaint was filed against Pai, an outspoken activist and critic of the ruling junta, by Colonel Phitakphon Chusri, a mid-ranking soldier in Khon Kaen who had surveilled him since the May 2014 coup. Since matriculating at Khon Kaen University, Pai has been a member of Dao Din (which means “stars on earth” in Thai), a group of law students who work with villagers to protect resource and community rights. He was also one of the founders of the New Democracy Movement, a national anti-junta group formed following the one-year anniversary of the coup. Before he was charged with lèse majesté in late 2016, he was already facing four other charges related to his peaceful political activism against the regime. In all cases, Pai was granted bail. In lèse majesté cases, however, a judge typically denies the accused bail with the rationale that the accused may flee the heavy punishment the crime carries. Pai was initially granted bail after his arrest in early December 2016, but it was revoked when he criticized the prosecution of another group of activists who peacefully dissented. The court deemed this an indication that he possessed insufficient fear of the court and state power. He has been behind bars since then.
The People’s Party, a coalition of military officers and civilians, fomented a transformation from absolute to constitutional monarchy in Thailand on June 24, 1932. Since then, the monarchy has been officially above politics, but in practice is deeply embedded in social and political life. This involvement can be seen in the use of Article 112. Lèse majesté has been a crime in Thailand as long as there have been kings, and the current law dates from the last revision of the Criminal Code in 1957. But, until the September 19, 2006, military coup, the law was rarely enforced. Following that coup, there has been a slow but steady increase in the law’s application. The May 2014 coup, in which the National Council for Peace and Order junta reinstated a military dictatorship reminiscent of the late 1970s in terms of its suppression of dissent, then brought a swift rise in both the number of lèse majesté cases and length of sentences. According to Thai Lawyers for Human Rights, an organization established to provide legal representation for those targeted by the junta, at least 138 people have been or are being prosecuted. People have been charged for Facebook posts deemed to be critical of the monarchy, bathroom graffiti decrying the monarchy, theatrical plays ridiculing the monarchy, and, now, for simply sharing a news story about the monarchy. Punishments are often five to ten years per count of lèse majesté, with one Facebook post equaling one count, for example. The Bangkok Military Court issued the longest sentence to date to Wichai Thepyong, a 34-year-old man, for ten Facebook posts judged to constitute lèse majesté in June 2017. The latter’s sentence was halved from 70 to 35 years as he confessed. (The vast majority of those accused of lèse majesté choose to confess, as not guilty verdicts are rare.)
Despite awareness of this fact, Pai initially entered a not guilty plea on February 10 and prosecution witness hearings began on August 3. The judges decided to hold closed proceedings from the very beginning, so only Pai, his lawyers, and his parents were allowed inside the courtroom. Observers were confined to a bench outside the courtroom and could observe the comings and goings of witnesses, but nothing more. Secret examination of lèse majesté cases is not infrequent—the Thai courts claim that the information may upset members of the public who revere the monarchy. On August 15, defense witness hearings were set to begin. But before they did so, Pai decided to change his plea to guilty, leading the court reduce his sentence from five to two and a half years, of which he has already served close to eight months.
One of Pai’s defense lawyers explained that Pai planned to use his trial to illustrate injustice in the Thai judicial process, but when the barring of media and other observers made this impossible, he chose to confess. His trial proceeded according to the letter of the law and seemed to possess some elements of the rule of law—he was informed of the charge against him, he had legal representation, and he was prosecuted in a civilian court—but his view is that it remained unjust. Without public audit of the judicial system, it cannot function in support of the rule of law. At a minimum, this would include an end to secret trials and the relaxation of contempt of court charges, which circumscribes outside criticism of court process and decisions.
As the world watches these events unfold in two countries proud of their past democratic traditions, it should be noted that the biggest threats to freedom of speech and assembly do not always come from direct censorship and suppression of dissident voices. Both the imprisonment of the three Umbrella Movement protestors in Hong Kong and the imprisonment of Pai are clear examples of an authoritarian government’s attempt to silence a dissident voice. Both are cases of “rule by law,” in which citizens within countries that seemingly protect rights are being silenced using laws interpreted in novel ways or applied in unprecedented circumstances. Wong, Law, Chow, and Pai are important because they challenge the legitimacy of the authoritarian regimes they live under and, in so doing, begin to imagine more just and democratic polities.