Sed quis custodiet ipsos custodes*
(* Juvenal, Satires. ‘But who will guard the guardians themselves?’. Alternative Georgian translation: ‘But what protection will the protection get?’
The government, military and right-wing groups have been taken aback by the generally negative reaction to Article 112 bis, recently enacted by parliament.
As pressure mounted for amendment or even repeal of Article 112 of the Criminal Code, often referred to as the lèse majesté law, the government took an intransigent line. It declared that any change in the law would be tantamount to opening the monarchy to malign and scurrilous criticism and vilification and constitute a threat to national security. It was quite reasonable, they said, for the country with the best loved monarchy in the world to require the harshest laws in the world to protect it.
However, this refusal even to engage in a discussion seemed only to stoke the flames. On the one side, pro-amendment groups proliferated, including one group of royal rank (or ‘traitors to their class’ according to the no-change side).
The basic argument was that both the content and practical implementation of the article violated the right to freedom of expression, a right that is enshrined in the Constitution and one that Thailand committed itself to promoting and protecting when it ratified the International Covenant on Civil and Political Rights.
On the other side, royalists claimed that even to question the nature or application of the lèse majesté law itself constituted an offence. In the end, the government took the same view and attempted to stifle the debate by passing Article 112 bis to protect Article 112 from criticism.
Known colloquially as the ‘lèse “lèse majesté law” law’, in its final version it reads:
‘Whoever defames, insults or threatens Article 112 of the Criminal Code shall be punished with imprisonment of three to fifteen years.’
The original version, drafted by the military, proposed a punishment of revocation of Thai nationality and/or exile for the remainder of the offender’s natural life. This was rejected by the Council of State as unconstitutional and incompatible with Thailand’s obligations under international law.
In response, the military filed charges against the Council of State with the Constitutional Court, asking the Court to exile and revoke the Thai nationality of all members of the Council of State for listening to what farangs say rather than protecting Thai institutions.
This case may take some time to be resolved. ‘It’s very complicated,’ said one Constitutional Court judge, giving his opinion under conditions of anonymity since he was not authorized to speak to the press or to have his own opinions. ‘We are afraid that if we get the verdict wrong, the military will bundle us all on a plane to Pyongyang with no passports.’
‘And it’s very cold in Pyongyang at this time of year,’ he added.
The government had clearly hoped that passage of Article 112 bis would end the debate and allow this particular hot potato to cool while the Nitirat group and a few hundred thousand people who had signed anti-112 petitions were safely under lock and key in the quickly expanded lock-up for political prisoners in Laksi. But it seems only to have provoked an even more furious debate about Article 112 bis itself.
Even some who had no quarrel with Article 112 found Article 112 bis too much to swallow. Newspaper letters columns were swamped with criticisms of the new law as uncalled for, unworkable and a violation of basic constitutional rights.
Perhaps predictably, nationalist groups called on the government to protect Article 112 bis from criticism. ‘If the government cannot protect this law, it clearly harbours republican sentiments and must be deposed with its members treated to the various punishments advocated in our comments section,’ said an ASTV-Manager editorial.
The government, while broadly agreeing that some way must be found to halt the condemnation of Article 112 bis, was at a loss as to how to achieve this. Some in the cabinet proposed an Article 112 ter, which would make criticism of Article 112 bis an offence in much the same way as Article 112 bis made criticism of Article 112 an offence.
This was seen by others as a false step since there would then need to be a fourth, fifth and possibly infinite number of laws, each outlawing criticism of earlier laws. The PM wanted to ask the Council of State for advice but this was not possible since the Council of State was suspended while proceedings at the Constitutional Court continued.
Eventually, Deputy PM Chalerm Yoobamrung proposed that the current approach was too negative, in that it sought to ban comments. He won agreement for a more positive strategy where the government would issue a list of things that people could say. Anything not on the list could not be talked or written about.
Deputy PM Chalerm magnanimously offered to draft this list. He asked the people not to worry about it. ‘It won’t be a long list,’ he promised.