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The legal loophole that could snare lese majeste fugitives in Cambodia, Laos

Nov 01. 2016
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By Supalak Ganjanakhundee
The Nation

Legally speaking, the extradition of lese majeste fugitives from Cambodia and Laos is impossible, since treaties signed by Thailand with its two immediate neighbours don’t allow it. But legal loopholes can be found in such cases.  

 The Thai military government last month requested the extradition of Thai nationals who fled to the two countries long ago after being accused of offences under the draconian law. Some are said to have taken refuge after the military crackdown in 2010 while others ran from the lese majeste hunts after the 2014 coup.

Authorities in Bangkok say three of the suspects are in Cambodia and six are in Laos, but their legal status in the two countries remains unclear. It is very rare for either country to grant political asylum to Thai fugitives.

Thailand has had an extradition treaty with Cambodia since 2001 and with Laos since 1999. Both pacts contain grounds for mandatory refusal of extraction if there is a political offence involved. Extraction must be rejected if there is well-founded reason to suppose that the requesting government aims to institute criminal proceedings against the person sought on account of race, religion, nationality or political opinion, or that judicial proceedings will be prejudiced for any of those reasons.   

The treaty with Cambodia even makes clear that extradition must be rejected if the requesting party has found the fugitive guilty in absentia.

Lese majeste is a political crime by nature, since the law in question effectively prevents any debate on the Kingdom’s head of state, rendering them “untouchable”. Article 112 of the Thai Penal Code says “whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to 15 years”.

Thai governments and their supporters routinely abuse Article 112 by using it to gag political opponents. Exploiting the monarchy’s high status in society, authorities enforce the lese majeste as if the country were still ruled by an absolute monarchy.  

The bar on politicised extradition was affirmed when Phnom Penh rejected a request made by the Abhisit government in 2009 for the extradition of former prime minister Thaksin Shinawatra, on grounds that his conviction in absentia on corruption charges in 2008 was motivated by politics after the 2006 coup.

It is important to note, though, that Thai-Cambodian relations were strained at the time by the Preah Vihear territorial dispute and also Phnom Penh’s decision to name Thaksin as an economic adviser.  

In these latest extradition cases, Thailand might be able to convince Laos and Cambodia that the lese majeste allegations have no political basis. However, the treaties explicitly prohibit extradition of persons accused of crimes that are not recognised in the host country. There is no lese majeste law in Laos, a republic, while defaming the monarchy in Cambodia results in lenient jail term of maximum six months, which the treaty does not allow extradition.

However, deportation of suspects can occur outside the jurisdiction of the extradition treaties. Unless the fugitives have been granted political asylum from their host country or the United Nations, they could be deported either for alleged simple criminal offences or for illegal entry.

Thailand set a norm on this point in 2004, when it deported 16 Lao rebels who had stormed a border post at Vang Tao in 2000. A Thai court had earlier rejected a Lao extradition request on grounds that it cited a political offence. Just months later, Thai authorities deported the fugitives for illegal entry. They have been in prison in southern Champasak province ever since.

 The Laos incident has become a classic case study for law students, showing how reciprocity and good relations between countries can outweigh treaties when it comes to decisions on extradition.

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