Youíre in a foreign country. Thailand. The police stop you. They donít speak much English but they demand to search you. Now. They want your passport. But itís in your hotel room. Youíre caught off guard even though youíve done nothing wrong but the police insist you give them your bag. They take your bag and search it. They search your person. They go through your cell phone messages. They tell you that messages in violations of a law in Thailand known by the number 112 (reference to an article in the Criminal Code) have been sent from your cell phone and youíre in serious trouble. Youíve violated something called lese majeste and youíve never heard that term before. But you remember letting someone use your phone. You tell that to the cops. But you donít remember her name. You are told that the SMS came from your SIM card and your cell phone and that you must prove that you are innocent.
How do you prove that you didnít do something? Itís like proving there isnít an invisible elephant in the room.
What do you do? Who do you turn to?
There are parts of the world where this is a real, pressing set of questions.
When we think of criminal justice systems most of the time we are thinking of the system that is near, the one we grew up with, the system that we see in on TV, in the newspapers, online as restraining criminal conduct. The muggers, killers, car hijackers, white collar criminals all have one thing in common: they are presumed innocent. The cops must have probable cause to search them, and they must warn suspects that anything they say can be used against them.
Thatís home base (and even there, it can run into the ditch). Itís not abroad. At home most people accept the criminal justice system as the legitimate authority to prevent crime and catch criminals. A lawyerís smart ass cutting and dicing a fine point. But youíd be wrong. There are in a number of legal systems acts that are criminal that you take to be a universal right. In other words, when abroad, the print in the ways the locals write it matters. Try selling a Valentineís card in Saudi Arabia. Time for the religious police to throw your sentimental ass in the slammer.
Try doodling cartoons about sacred figures and see how far your claims of artistic license and freedom get you in the 100 meter shackled leg race in the prison courtyard. In Thailand there has been in recent years a dramatic increase of charges (conviction is almost always guaranteed) under lese majeste and computer crime laws. Warnings have been given by the authorities that this Thai law applies to everyone around the world. Press the Ďlikeí button on a Facebook page deemed to be in violation of Article 112 and the computer crime law, and youíve committed an offense punishable by up to 15 years in prison. In other words, youíd be in serious trouble and it is no defense that you did this outside of Thailand or didnít know that it was an offense. You still go to jail.
Such attitudes are more obvious (and better reported) in Middle Eastern countries. But youíd be wrong to think that is the only place where fundamental freedoms are absent. Thailand is an example where normative values about the sacredness are backed by stiff penalties against those who seek to question them. This is in contrast, to the Western Enlightenment idea of criticism as a positive and progressive value. We are taught the importance of give and take in political discussions. In the West, our normative values spotlight on justice, equity and fairness. But donít make the mistake of thinking this judgment is universally accepted. Itís not. In a system of sacredness no one is ever forced to resign no matter how zealous the enforcement. Such a legal system encourages the true believer to step forward and undertake communal action. Those who are less committed soon fall under a cloud of suspicion.
Ever since Oliver Stoneís Midnight Express hit the silver screen almost thirty years ago, weíve become familiar with chronicles of Westerns caught up in the nightmarish gulag of foreign criminal systems most people recoil at justice being meted out in ways that are transparent, fair, honest and unbiased. In short, there is a perception that if you find yourself caught in the vice of a foreign law enforcement investigation you will likely suffer an injustice. The recent case of the young Seattle university student who spent four years behind bars in Italy only to be acquired of the charge of murder reinforces the idea that a brush with the law in a foreign country can go sideways quickly.
The problem experienced by many Westerns is compound by complacency and ignorance. First letís deal with complacency. You are on holiday and want to relax. You buy drugs from a stranger who turns out to be an uncover cop. Your holiday ends along with your freedom. Most people are aware of that risk. But sometimes they forget that the local rules in an exotic place donít have holiday exemption clauses for foreigners. In those circumstances, no one blames the locals for enforcing their laws which in many ways arenít much different from their own laws at home.
Second on the list is ignorance. Let me be clear: most of us are ignorant on a vast number of subjects. Itís not a stigma not to know something. But if you are going on holiday to a foreign destination, you can equip yourself with basic knowledge about the laws and customs and act accordingly. You donít need to be a lawyer or legal scholar in the criminal justice system of a place but it is wise to learn if this travel destination has some laws quite unlike you are familiar with at home.
Aside from the Article 112 cases, the ordinary run of the mill run in with the law in Thailand can become an ordeal. A couple of recent cases in Thailand raise issues about how the justice system works and how it is perceived to work. Often there is a wide gap between reality and rumor. First involved a case in Pattaya where a young Englishman (he is 25 years old) and his Thai girlfriend (aged 22 years old) is questioned in what appeared to be a failed suicide attempt by the girlfriend. She fell/jumped/stumbledĖwe donít really know what verb to insert from the press reportsĖfrom the seventh floor and managed and managed to survive. There has been no follow up report on her condition and what she told the authorities had happened. The point is that the Englishman was hauled in for questioning as a possible suspect. A number of foreigners complained that when a foreign falls off his condo or hotel room balcony, it is assumed to be suicide and his Thai girlfriend is given sympathy rather than the third degree.
There is a video series titled BigTrouble in Thailand. In the first one, jet-ski operators seek to shake down a customer for Ďdamageí to the rented equipment. Scams like this often surface like a bubble from a deep sea diver to the surface before disappearing.
These two cases are classic examples of the perception by foreigners that they are at a disadvantage. The larger fear is that the local thugs are presumed to have the police on their side in any dispute. Also there is a wide spread perception that a foreigner will be at the receiving end of unfair, unequal treatment by the police in circumstances where locals would not be questioned. There are many examples where foreigners are presumed to be in the wrong and in the local right, and the foreigner is presumed to owe compensation for damage based on the localís version of events. The fear, in other words, is there will be no even-handed justice. That the deck of cards are stacked in favor of the locals.
In Thailand that fear is also projected by the Thais when a request is made from extradition for a crime theyíre accused of committing when abroad.
An example is the recent case involving two mid-twenties Bangkok men who are alleged to have been involved in a murder in Australia. A Thai court has ordered their extradition to Australia to stand trial. This raises questions that are the opposite of the Pattaya attempted suicide case. Here the locals are doing everything in their power to resist justice in Australia. The Australian authorities introduced evidence sufficient to authorize an extradition. There is no indication the Thais wouldnít be given a fair trial. Young men from wealthy families in Thailand have been known to walk away free from murder cases. The Australian case raises the issue not about whether the men will receive justice but the underlying processes that accompany a criminal case in Thailand where the relative rank and status of the perpetrator and victim may outweigh other considerations.
Criminal justice isnít some universal, agreed upon set of abstract principles, procedures, and institutions that everyone agrees upon. They are built on local practice and custom, embedded with relics of tribal traditions, kinship, and lineage. In the West, societies are more pluralistic and that is reflected in how the criminal justice system is administered. Members of the elite are sentenced to prison in the West. Sure there are those who escape. But it isnít a given they will convince a cop, a prosecutor, court and jury that their status is their right to immunity. That Get-Out-of-Jail-Free-Card is a reality in other countries. People living in these countries have, in the past, accepted this state of affairs though this may be changing. Arab Spring.
If the prevailing consensus of the general population inside a country is that they belong to one single racial, religious, ethnic group, expect this will influence their notion of justice. Such a country has its own way of dealing with local crime and criminals. A foreigner who is an outsider should understand justice as applied to local and as applied to him will not likely match up. In such places, it is right to for the foreigner to experience anxiety over his or her fate, fearing law enforcement agents will resolve the conflict or confrontation in favor of the locals. Or in the absence of such conflict, apply such laws against foreigners while turning a blind eye when a local breaks the same law. The racial purity argument pulses through many different nationalities and ethnic groupings around the world. Mixing purity and justice is like mixing oil and water.
The danger is being caught out by the uniquely criminalized norms that youíd consider to be neutral if not actually virtues in your home country. Some countries have religious police. Saudi Arabia, Iran, Malaysia are three countries that come to mind. But other countries like China and Thailand have secular equivalents (computer literate volunteers) monitoring the Internet, Facebook pages, blogs, Twitter looking for insults to their notions of the scared. Prosecutors stand ready to arrest and imprison anyone (insider or outsider) who violate laws. This category of law is carefully patrolled and guarded, ensuring that local norms and taboos attached the sacred are strictly enforced. You should recognize that when you travel abroad the sensitive nature of local beliefs and faith are backed up by stringent laws with lengthy prison sentences imposed on violators. You may be unaware of the norms as they lack a direct counterpart in your culture. But ignorance wonít be a defense.
There are eyes and ears in the street that hear casual remarks that violate a taboo may be not just offensive but illegal. This is a category of crime that appears more often given the free ranging discussions that social media and the internet encourage. In the West, a lively exchange of opinion, criticism and argument is considered normal. Unlike murder, rape and robbery, thought crimes once they are given expression can land you in prison for periods as long as first degree murder sentence.
The best piece of advice you will ever receive is this: when you travel outside the cone of the Enlightenment steer clear of all discussions of politics and religion, and refrain from making any negative comments on local customs and culture. Stick to discussions about fashion, food, shopping and the weather and youíll be safe. Smile and ask for another one of those tall drinks with a happy little umbrella, sit back in your beach chair, and look at the sea. Tell yourself this is the good life. You have earned this piece of paradise. But remember, too, paradise has its prisons ready for for those who stray from that beach chair and mingle with the locals under the delusion that the free-ranging intellectual tradition of open discussion of the European coffee houses are welcome. They are not. You will be talking your way through a field of thought land mines, and if you trip over one, say goodbye to your freedom. And there will be absolutely nothing your embassy, your lawyer, your mother or your best friend can do to help. You will be another casualty of the war to protect the sacred.