[This English translation
from the original Thai is faithful and literal but not an official translation]
Highlights of the Administrative Court Verdict
Black Numbered Case 1321/2555
[2012]
Red Numbered Case 1419/2560 [2017]
In the Name of the King
Central Administrative Court
11 August 2017
Between Plaintiffs: Mr Manit Sriwanichpoom #1
Miss
Smanrat Kanjanavanit [Ing K] #2
Defendants: The National Board of Film and
Video #1
Board of Film and Video
Censors, Third Committee, #2
Department of Cultural Promotion # 3
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On the question that the censors
passed the trailer of ‘Shakespeare Must Die’ which prominently features the
so-called “October 6 scene” with no objections, yet object to its presence in
the film:
“The three defendants gave additional testimony
that… when defendant #2 inspected the whole of this film’s advertising trailer
finding it correct according to Article 25, Article 29, Article 30, Article 31
and Article 32(1) of the Royal Edict on Film and Video 2008, with due
deliberation permitted it to be distributed; inspection of the trailer does not
exempt the content of the film according to Article 27 of the aforementioned
Royal Edict which exempts from censorship by defendant #2 in any way.” [Page
15]
On
the defendants’ testimony which contradicts plaintiff #1’s testimony that the
National Film Board’s Legal Subcommittee informed him that there would be a
good compromise, namely the 20+ rating. (Plaintiff #2 did not attend the
session):
“Although defendant #1 through the subcommittee
for Legal Deliberation and Opinion set up by defendant #1 had deliberated the
justice of it, summoning the two plaintiffs to an inquiry in Meeting #9/2012,
on 24 April 2012, and both the 2 plaintiffs confirmed their wish not to correct
anything as before, so it can be seen that the two plaintiffs had appealed the
administrative order by defendant #2 but still chose not to proceed according
to the instructions of the agency deliberating the appeal to enable the film to
be permitted to be distributed, and insisted on making no corrections at all.
It should be noted that cinema is a medium with the capacity to influence the
thinking of the people; it is easily absorbed into the culture, and has an
impact on the security of the state, peace and order and the good morality of
the people. It is therefore [part of] the main mission of the state which must
preserve peace and order and protect against dangers and perils that will
arise, danger both external and internal, including the solving of the problem
of conflict among the people in society, in order to achieve peace and
happiness. In this endeavour the Royal Edict on Film and Video 2008 is deemed
one of the instruments of state employed in preserving the security of the
state, peace and order and the good morality of the people. And defendant #2
has the duty to consider permission for films… without allowing [into
distribution films that] affect the security of the state, peace and order and
the good morality of the people. When considering the events that occurred in
the period of 6 October 1976, which was a time of extreme divisiveness and
polarization of thought and ideals in Thai society, it was a violent event
causing a large number of people to lose their lives which was not something
that anyone wanted to happen, which resembles Thailand’s present situation and
the recent past. When you bring in the events during 6 October 1976 which has
content that shows the actors’ displeasure and an attack on the cast, during
which the play’s director is hung by the neck and hit with objects as part of
the content of this film, in order to echo the country’s events of social
unrest, this may result in causing violent events that have happened repeatedly
in Thailand. As in the example of what happened abroad from the distribution of
the film ‘Innocence of Muslims’ which caused divisiveness including damage to
life and property of people of the same nation and other nations, without
anyone being able to control the situation, which is revealing of the influence
of films that affect personal thinking and may cause divisiveness to spread
widely among people in society. Neither the two plaintiffs nor the three
defendants would wish such aforesaid events to happen in Thailand, and [the
Court’s] referencing of the symbolic colours of yellow and red is [cited as] an
example that shows a scene that indicates it’s [taking place in] Thai society,
not a country of the two plaintiffs’ imagination, which is not to claim that
the presence of the symbolic colours of yellow and red in the film will cause
disunity or violence.” [Page 15 – 16]
On the irregularity in the
censorship process and its vulnerability to political pressure and interference
as seen in the blatantly preferential treatment of ‘Fah Tum Pandin Soong’ [‘The
Sky is Low; the Land is High’, official English title ‘Boundary’],
also definitively banned for national security reasons, but only 48 hours later
had its ban overturned without having to file an appeal, in contrast to the
apparent witch-hunting of ‘Shakespeare Must Die’:
“In
the case of ‘Fah Tum Pandin Soong’ (Boundary) which defendant #2 had inspected
and saw that some parts should be amended, so informed the permit applicant to
proceed in the correction; after the permit applicant made the correction,
accordingly the verdict was to permit the film’s release.” [Page 16]
“As
for the 2 plaintiffs’ claim that other films have presented events similar to
that seen in ‘Shakespeare Must Die’, yet were permitted to be distributed in
the kingdom, such as the film ‘Fah Tum Pandin Soong’ or ‘Boundary’ and ‘Horror
University’, and that defendant #2’s order to ban the 2 plaintiffs from
distributing the film ‘Shakespeare Must Die’ in the Kingdom is unjust and
discriminatory… [The Court] deems that although some of the scenes in the films
are similar, but each film naturally has its own different facts which fall
under the personal deliberation by defendant #2 to inspect and categorise and
issue the order to permit or not to permit distribution in the Kingdom under
the framework and the rules of the law,
which in this case there appears no claim, witnesses or evidence that could
show that the films referred to present such an explicit scene in the film that
shows images that cause disunity among
the people of the nation, as is manifested in the 2 plaintiffs’ film
Shakespeare Must Die, which would make it reasonable to claim that unjust
discrimination has been practiced against [them]. As for the case of the film
‘Fah Tum Pandin Soong’ [‘The Sky is Low; the Land is High’] (Boundary); that is
the case in which defendant #2 (committee 1) had inspected the film and saw
that some parts should be corrected and accordingly informed the permit
applicant to proceed with corrections, which the permit applicant did correct
the aforementioned film as informed. Defendant #2 accordingly ruled on the
rating as specified by Article 26(1) to (6) of the Royal Edict on Film and
Video 2008…
…Therefore, that defendant #2 issued the
order to ban the two plaintiffs’ film from distribution in the Kingdom, and
permitted the above film to be distributed, is not sufficient to convince that
different, discriminatory treatment was meted out towards films that are the
same in essential substance; that would constitute unjust discriminatory
treatment as claimed by the 2 plaintiffs in any way.” [Page 28 – 29]
“As
for the two plaintiffs’ claim that defendant #2 did not inform the two
plaintiffs to change or cut any content of any part or any scene, or a sequence
or many sequences that defendant #2 deems contain content that causes disunity
among the people of the nation before issuing the order to ban the aforesaid
film from distribution in the Kingdom, so that the two plaintiffs could not
know how much or how little defendant #2 wished to be corrected; [the Court]
sees that since the two plaintiffs attended a meeting with defendant #2 in a
meeting on 3 April 2012, that [our stress] the two plaintiffs gave as a reason to defendant
#2 for their insistence on making no corrections or cuts that
it is a case of the two plaintiffs’ wishing to present the truth of events of 6
October 1976 in Thailand;
additionally, after examining the appeal document filed by the two plaintiffs
dated 17 April 2012, in item 3 page 4 and page 5, the two plaintiffs admit that
there was much discussion of the 6 October 1976 scene and scenes that use the
colour red; [all of which] shows that the two plaintiffs knew and understood
which scene or content of the film in which part that defendant #2 saw as
causing disunity among the people of the nation which defendant #2 wished the
two plaintiffs to correct or cut, since it is the scene or content that
defendant #2 used as the reason for issuing the order to ban the aforesaid film
in the Kingdom. In this instance it may be held that defendant #2 did inform the
two plaintiffs to proceed with corrections and changes to the content before
issuing the aforementioned banning order according to steps of procedure which
is the important substance for the issuing of the order to ban this film from
distribution in the Kingdom as delineated by the law. As for the two
plaintiffs’ claim that defendant #1 and #2 could have assigned a rating
appropriate for the age and type of audience, [the Court] sees that since the
two plaintiffs insisted on making no correction or cut in the aforesaid part of
the content, defendant #2 naturally could not consider assigning a rating…
according to Article 26(1) to (6) of the Royal Edict on Film and Video 2008,
since it is not the case in which the two plaintiffs were willing for
corrections or cuts to be made in the content of some parts of the film, which
would have allowed defendant #2 to assign a rating to the aforementioned film
that the two plaintiffs desire to receive permission for…” [Page 26]
On the National Human Rights
Commission’s recommendations and inquiry, which consisted of 2 sessions at the
NHRC, the first attended by the Deputy Permanent Secretary of the Ministry of
Culture, the second by the Permanent Secretary himself. (There is no mention of
the Senate House Committee on Citizens’ Rights and Freedom, the United Nations
Human Rights Council or the US State Dept Country Report on Human Rights):
“On the issue of
the findings of the inquiry into the complaint by the National Human Rights
Commission, dated 29 May 2013 which the two plaintiffs appended to their
rebuttal of the defendants’ testimony, it does not appear that representatives
of defendant #2 or defendant #2 appeared to testify to the facts before the
Subcommittee on Citizens and Political Rights, even though defendant #2 is the
one that issued the administrative order. As regards the Subcommittee’s
recommendation of measures and suggestions to agencies concerned, requesting
defendant #2 to review the banning
order on the film Shakespeare Must Die by specifying the age of the audience
for this film with a rating suitable for those of 18 years old and above, and
recommended that the Law Reform Council consider amendments to improve the
Royal Edict on Film and Video 2008, which law is deemed restrictive of the
right to freedom of thought and expression according to the Constitution of the
Thai Kingdom of 2007. The National Human Rights Commission (Rights Protection
Division) convened to deliberate the complaint in Meeting 16/2013 on 15 May
2013, thereby agreeing with the Subcommittee’s opinion. But since the two
plaintiffs had already filed a case against defendant #1 and #2 [Administrative
Court cases must be filed within 90 days of alleged administrative
offence] in this Administrative
Court case, the case must fall under Article 22 of the Royal Edict on the
National Human Rights Commission BE 2542 [1999], therefore the National
Human Rights Commission accordingly is no longer empowered to further inquire
into the case and present remedial measures. The Commission therefore sees fit
to conclude the issue. Therefore, the aforesaid opinion and verdict of the
Subcommittee on Citizens’ and Political Rights do not fit within the
jurisdiction of the National Human Rights Commission to receive for
consideration. The aforesaid document is merely the opinion of the National
Human Rights Commission, which is not an agency empowered to examine the
content and substance of films…
…The additional document that
the two plaintiffs submitted is therefore merely the opinion of some other
organization which cannot be used to prove that the two plaintiffs have been
affected by the Royal Edict on Film and Video 2008 which restricted [their] Constitutional
right to freedom of expression…” [page
16 -17]
On whether ‘Shakespeare Must
Die’ is a threat to national security:
“[The Court] sees that the Royal Edict on Film
and Video 2008 and related legislation do not specify the meaning and style of
content of a film that would be deemed to “cause disunity among the people of
the nation” that could be used as a directive on defendant#2’s exercise of
power specifically. After scrutinizing the Royal Academy Dictionary of 2011,
the definition of the word “unity” means doing things in unison, conciliation,
a readiness to co-operate together with hand and heart in something. The word
“split” means to separate from the whole, to cause to be separated from the
whole, uncontrollable or cannot be controlled; and the word “nation” means
country, the people who are citizens of a country, a group of people who share
the same feelings towards race, religion, language, history, folklore,
tradition and culture, or who are under the rule of the same government. From
the aforementioned definitions, the meaning of the words “disunity among the
people of the nation” may be deduced as meaning to cause a country, people who
are the citizens of a country, a group of people who feel the same way about
race, religion, language, history, folklore, tradition and culture or are under
the rule of the same government, to stop acting in unison, to become
unreconciled, to feel divided from each other. Therefore in order to deliberate
whether the content of any film causes disunity among the people of the nation
or not, it must be deliberated whether the content and the parts of the whole
as manifested in the film has caused an impact on people of the same nation,
compelling them to start having divisive feelings or not. In analyzing the
substance of the story that the film aims to present and wishes to communicate
to the audience through the viewing of the film, it is not possible to examine
any specific scene or part of the film separately from the whole, because film
communicates meaning and tells the story according to the plot comprising
events that happen, developing from a beginning and proceeding to the final end
or conclusion of the story, with actors playing roles and behaving according to
the knot of the conflict, which reveals and unentangles or leaves behind as
food for thought. Analysis of the substance of the story therefore entails
analyzing the entire content of the film, whether the plot, the core of the
story, the conversation and the conclusion, as each is linked to the whole, to
discover the way of thinking or the story’s essential substance that the film
aims to present to the audience. Therefore inspection of this film necessarily
entails examination of the essential content of the whole film as connected
into one whole to consider whether it contains content befitting description of
causing disunity among the people of the nation, or not…” [Page 22 - 23]
“After
examining the aforementioned film [the Court] sees that even though the two
plaintiffs say that the country in this film is a fictitious country, but the
contents of many scenes, many sequences convey quite clearly Thai social
conditions and that the events are taking place in Thai society. For instance,
the scene at Time 18.57 minutes, the dress of the actress is similar to ancient
Thai dress, and the dress of male actors includes the wearing of cloth in traditional
Thai culture. The scene at Time 32.37
minute, the dress of the actors indicate features of Thai people. The scene
from Time 1 hour 08.14 minute to 1 hour 11.43 minute is a scene showing Old
Style Thai Coffee being sold from a vending cart on which are the letters
spelling out “Old Style Thai Coffee” and the words “Original Recipe”,
indicating features of Thai society. The scene at Time 1 hour 11.45 minute, the
audience of the play adorn and dress themselves in a way that invokes Thai
people. The scene at Time 1 hour 54.00 minute, is a scene with a boat that is
similar to the Royal Supannahongse Barge. In the scene at Time 2 hour 37.58
minute, protesters are holding up signs written in Thai, as well as various
props that all invoke Thai social conditions, not a fictitious country as
claimed by the Two plaintiffs. As for the scene from Time 2 hour 43.23 minute
to Time 2 hour 45.40 minute which defendant #2 saw was similar to the violent
events on 6 October 1976 that happened in Thailand, which is the scene that
causes disunity among the people of the nation, is a scene in which a group of
men wearing black with red cloths on their heads carrying sticks runs into the
theatre and attack the play’s audience, the cast, and lynch and hang the
director, with a man in black sunglasses who had earlier gone to see the play
holding a metal folding chair and bashing the body of the play’s director who
was hung by the neck. Meanwhile the group of men with red cloths on their heads
are cheering on the action. [The Court] sees that even though many Thai films
have used past Thai history in which there was conflict among the people of the
nation in their films, but the aforesaid past Thai history is history that
occurred very many years ago so that Thai people of the present day can no
longer trace from the story whether any person in the aforesaid history has any
connection to or were actual relatives of theirs or not and in what way.
Therefore the aforementioned films [evidently a reference to the
‘Suriyothai’ series of films cited by the plaintiffs as being
more violent yet were widely released with ‘Recommended’ rating to which whole
classes of schoolchildren were sent to learn from] do not cause
hatred and vengeance to arise, unlike the two plaintiffs’ film which brings in
the violent events on 6 October 1976, which is a contemporary event, as part of
the film with the length of the aforementioned scene extending to over two
minutes, which would naturally cause resentment among the relatives of those
who lost their lives or who were part of the aforesaid event, causing vengeful
and hateful feelings to arise, which may become the spark for disunity among
the people of the nation. Additionally, in a meeting with defendant #2 on 3
April 2012, defendant #2 informed the two plaintiffs to correct and change the
screenplay in the aforementioned scene, but the two plaintiffs insisted on not
making any corrections or changes, even though it can be done without affecting
the essential substance of the story, including reflections upon the dark and
light sides of man, the nature of sin and karmic retribution and the struggle
between good and evil within man’s heart and mind which the two plaintiffs
desire to present to the audience of their film. That defendant #2 did not
permit the two plaintiffs to distribute the film Shakespeare Must Die in the
Kingdom for the reason that this film has content that causes disunity among
the people of the nation, is accordingly a legal use of personal deliberation.
Therefore, defendant #2’s order as recorded by the memo of film inspection,
dated 3 April 2012 which does not permit the two plaintiffs to distribute the
film Shakespeare Must Die in the Kingdom, is therefore a legally righteous
order; and since it is already determined that the aforementioned order by
defendant #2 is a legally righteous order, therefore, the appeal ruling by
defendant #1 according to the verdict of Meeting 3/2012 on 11 May 2012, which
agrees with defendant #2’s order with the verdict to dismiss the two
plaintiffs’ appeal, is therefore an appeal ruling that is also legally righteous.” [page 24 -26]
On the Right to Freedom of Expression:
“As for the two plaintiffs’ claim that
defendant #2’s order to ban the two plaintiffs’ film Shakespeare Must Die from
distribution in the Kingdom is restriction of the right to freedom of expression
according to Article 45 of the Constitution of the Thai Kingdom of 2007, [the
Court] sees that Article 26 of the Constitution of the Thai Kingdom of 2007 in
force at the time of the dispute, specifies that the exercise of power by all
governmental agencies must bear in mind human dignity, rights and freedom, as
specified by this Constitution. Article 28(1) specifies that persons may lay
claim on human dignity or exercise their own rights and freedom so far as they
do not infringe the rights and freedom of other persons; do not set themselves
up as enemies of the Constitution, or are not in conflict with the people’s
good morality. Article 29 specifies that the restriction of personal rights and
freedom as guaranteed by the Constitution cannot be done, except when
authorized by the law specifically delineated by this Constitution and only as
necessary, and may not affect the vital essence of that right and freedom.
Article 43(1) specifies that persons have the freedom to conduct business or
pursue a profession and compete freely and fairly. Paragraph (2) specifies that
restrictions of freedom as described in Paragraph (1) may not be done, except
when authorized by the law, specifically for the preservation of the security
of the state or the national economy, the protection of the people’s public
infrastructure, the preservation of peace and order or the good morality of the
people, professional organization, consumer protection, town-planning, the
preservation of natural resources or the environment, public welfare, or to
guard against monopoly or remove unfair competition. Article 45(1) specifies
that persons have the freedom to express an opinion, in speaking, writing,
publishing, advertising and other means of communication. Paragraph (2)
specifies that the restriction of freedom in Paragraph (1) may not be done,
except when authorized by the law specifically for the preservation of the
security of the state, to protect rights, freedom, dignity, reputation, family
rights or the private life of other persons, in order to preserve peace and
order or the good morality of the people, or to prevent or put a stop to mental
and spiritual degradation or [safeguard] public health. From the aforesaid
edict it can be seen that peace and order or the good morality of the people is
the basis of good values in Thai society which the Constitution is intended to
uphold and accordingly specifies as a significant reason that legislators can
cite as a motive in the writing of the law to enable the restriction of
Constitutional right and freedom, in order to protect peace and order or the
good morality of the people, which has long set the social standards and
prevent them from degradation, and to uphold peace and order in Thai society…
…Although the production or
creation of the two plaintiffs’ film Shakespeare Must Die may be deemed a type
of profession the pursuance of which is Constitutionally guaranteed so that the
practitioner of the profession has the right and freedom to produce or create,
but the aforesaid right and freedom must remain under restrictions as specified
by law, which restrictions according to Article 29 of the Royal Edict on Film
and Video say: the film that is produced must not be in conflict with peace and
order or the good morality of the people; must not affect the security of the
state and the national pride and dignity of Thailand. Therefore, the instance
in which defendant #2 issued the order to ban the two plaintiffs’ film
Shakespeare Must Die from cinematic release, rental, exchange or distribution
in the Kingdom with the reason that this film has content that causes disunity
among the people of the nation, which fits the case of being in conflict with peace
and order or the good morality of the people; and that defendant #1 issued the
verdict to dismiss the two plaintiffs’ appeal, with the reason that certain
scenes in this film have content in conflict with peace and order or the good
morality of the people, or may adversely affect the security of the state and
the national pride and dignity of Thailand, accordingly cannot be held to be
the restriction of rights and freedom of expression according to Article 45 of
the Constitution of the Thai Kingdom of 2007. The two plaintiffs’ claims in
this issue cannot therefore be listened to [is inadmissible].” [page 27 – 28]
The Verdict
“After deliberations it is seen that… since the
admissible facts in this case say that defendant #2’s order to ban the two
plaintiffs’ film Shakespeare Must Die from cinematic release, rental, exchange
or distribution in the Kingdom, and the appeal verdict of defendant #1 which
dismissed the two plaintiffs’ appeal are sanctioned by law, the actions of
defendant #1 and #2 are thus not an action of violation against the two
plaintiffs, therefore there is no case for defendant #3 to take responsibility
for damages incurred to the two plaintiffs in any way.
The Court rules to Dismiss.
Miss Chatrchanok
Jindawongse Tulagarn jao khong
samnuan [‘Case Record Judge’]
Central
Administrative Court Judge
Mr Wachira Chobtaeng
Central Administrative
Court Chief Judge
Mr Yongyuth
Chiaowcharnkij
Central
Administrative Court Judge
Mr Jatupol
Sriburomya
Central
Administrative Court Judge
Mr Bandit
Whangwarodom
Central
Administrative Court Judge
Tulagarn Phu
Thalaeng kadee [Literally, ‘Case-Declaring Judge’] : Mr
Wuthiwath Jaranyanont
CENTRAL
ADMINISTRATIVE COURT 11 August 2017” [page 30, end]
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