Exploring questions of economic power and politics
Bangkok, September 3 - In countries that are at various stages of their democratic development, the dilemmas that people face in defending their rights differ in their context yet claim such strange if not unnerving similarities. We see this regression manifested in such an apparently strong citadel of individual rights and freedoms as the United States caught up in the very same pitiful cycle of violence and counter violence that characterised Sri Lanka some decades back more overtly than it does now.

In some countries, it is physical terror and violence that perpetuates this cycle. In others, it is economic power that is jealously safeguarded even through intimidation and coercion if necessary. Regardless, the impact of such regressive practices on ordinary people and ordinary institutions of democracy can only be highly counterproductive as any serious historical study testifies to.

urrently, ongoing criminal defamation trials in Thailand have focussed attention on issues in relation to freedom of expression in that country. From one perspective, the pending trials evoke irresistible feelings of deja vu, given that it was not long ago that Sri Lanka used criminal defamation laws with impunity against both its media and activists. Since then, we have, of course, been commended for the abolition of penal laws relating to defamation. The process by which such abolition occurred owes a great deal to the combination of particular political forces at that time as well as the fact that, for once, there was sustained as well as unified lobbying on the part of media and civil society.

It must be remembered that the amending laws were passed unanimously by the House in mid 2002 in a telling acknowledgement of the injustice of the past. Undeniably however, the reminder to the media in turn, that self-regulation has to be both credible and effective was important in that regard.

From another perspective, Thailand has a different economically intimidatory context in its use of penal sanctions. Questions that have emerged during public debates in connection to these trials are relevant to Sri Lanka notwithstanding the fact that we no longer have criminal defamation provisions in our statute books.

The link between the powerful corporate sector and politics remain central to many of these debates. The substance of these cases offers some interesting glimpses into these issues. For example, one case involves remarks made by a media advocate, Supinya Klangnarong, in an interview to the Bangokok based Thai Post that the election of Thaksin Sinawatra as Prime Minister 'helped cement the business and political sectors' and particularly facilitated the rise in profits of one of Thailand's largest telecommunications company, Shin Corporation.

As is popularly known. Shin Corp was founded by Shinawatra in the 1980's. He resigned after his party came into power in the January 2001 elections, transferring his shareholdings to his daughter, son and brother-in-law who remain its largest shareholders. Klangnarong opined that the profits that thereafter came their way were liable to be used, in turn, as monetary support for Sinawatra's Thai Rak Thai party.

Both she and the newspaper were indicted in terms of Section 326 of the Thai Penal Code for 'causing the impairment of the reputation' of the company and for exposing it to 'hatred and contempt'. (Thai Criminal Court Black Case No. 3091/2546). The ongoing case has attracted extraordinary attention from across the world with expert witnesses being called upon to testify in regard to domestic and international standards according to which Klangnarong's comments cannot be seen as criminally defamatory.
As constitutionally mandated, the telecommunications arena in Thailand comes within the category of national communication resources that must be used for the public interest. The country's Constitution protects the right to express opinions.

The specific arguments in relation to the case are not new in their exposition. Primarily, it is claimed in her support that the impugned statements are of major public interest, warranting a high degree of protection and that they constituted substantial expression of opinion. Additionally, they are argued to be not of sufficiently serious import to call for penal sanctions with the required intent not found. Its end result will be seen later on in this year. If convicted, Klangnarong stands liable for a term of rigorous punishment of two years or a monetary penalty.

One peculiar element in this trial is the principle involving defamation of a company wherein a recent judgement of the European Court of Human Rights allowing expanded criticism by activists of the environmental and labour policies of McDonalds on the basis that they involve matters of public concern, was cited in support. (See Steel and Morris v. United Kingdom, 15 February 2005, Application No. 68416/01, para. 88.)

In Thailand, the corporate power behind the political scene may involve an obvious conflict of interest in a scenario where Prime Minister Thaksin Shinawatra's business interests are by no means shadowy. In contrast, though the Sri Lankan context is somewhat different, the lack of ethical questioning of the linkages between the corporate world and the murky business of politics in relation to the benefiting of both remain significant. To this extent, both countries have much to learn from common experiences.

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