There have not been many Thai Sumpreme Court lese majesty cases that have been made public—the last one was Veera Musikapong’s 1988 case—and so it is always exciting when the veil is pulled back a little further on the mysteries of the high court’s jurisprudence. The Supreme Court case made available just a few days ago does much to excite and even more to alarm. The implications of this case are tremendous, and may well mark the low point of the regime of lese majesty in Thailand. At first glance, this case seems like a very bad one that can have devastating, real-life consequences. But reading it more deeply and the case becomes much worse than it first appears.
This case begins in 2005 when a failed candidate for some elected position is trying to cheer himself up on a community radio show he hosts. A caller has just asked him how he lost the vote, and the host is, in a rambling way, talking about how it’s good to keep trying despite failures, to remain proud of yourself, and to hold your ideals dear. At one point, he is inveighing himself against would-be adversaries in the name of human dignity. He says:
I refuse. But I refuse, Listeners, because human dignity in anything which we think that we [can do]. If we act [to do something] with freedom, act with free thought, for our brothers and sisters, the people, we [would do it]. But if we must [do it], and [we] must be like [we were] under the fourth reign, we will not [do it], Listeners. That age is gone. But now this land might have some [people who think in this old way]. [There might be] some portion. There is still some portion.
I’ve added some words in brackets to make it a little clearer, but still it is hard to say from this selection or from what he said earlier exactly what he was getting at. What gets him into trouble is his rather oblique reference to King Rama IV: “But if we must [do it], and [we] must be like [we were] under the fourth reign, we will not [do it], Listeners. That age is gone.” [แต่ถ้าเราต้องไป แล้วต้องเป็นเหมือนกับรัชกาลที่ ๔ เราไม่เป็นครับท่าน ยุคนั้นหมดไปแล้ว] For these words, he is initially sentenced to four years imprisonment. It is reduced by half for his confession and his helpfulness in his own condemnation. Further, the lower court suspends the sentence for two years.
There are a number of things that stand out in the lower court’s decision. The first is his very short reference to the fourth reign. It is unclear why so much of the transcript from his show is part of the charge. The only part that could relate to the slander is his talk of human dignity and the references to freedom which he seems to juxtapose against his reference to the fourth reign.
Somehow the prosecutors construct their case around the very thin gruel. They claim, and the judges concur, that the defendant’s words imply “that His age [of his royal person, Rama IV] was one in which one had to be a slave, there was no freedom, there was poor governing.” These words—a slander and so ephemeral—were, one would think from the language of the court, earth-shattering, for they were capable of making “the people lose their faith completely, in a manner that is like to bring disrepute and dishonor to, and cause contempt and hatred, of the fourth reign.”
But the defendant didn’t say anything about the person of the king at all. Article 112 forbids anyone to defame the king, queen, or heir-apparent. Here there is no such reference.
Second, there’s good question to wonder what the target of the attack was. In the grand annals of traitorology, there is something called “constructive treason.” Unlike a physical attack on a royal member where agency and effect can easily be drawn, treason committed through words requires those prosecuting them to build a system of signifiers—words—that after the connections are made equal treason. In this case, prosecutors had to do a lot of constructing to get there. From the reference of a few words, suddenly the defendant appears, from the reaction of the prosecution, to have made a full-blown critique of a reign, claiming it is referring to slaves and serfs and the governing system. In a really masterful testimony to the powers of human imagination, the case against the defendant was constructed, where a few words are turned into a damning analysis of Thai-style feudalism.
Another aspect of this case has to do with determining what exactly was the target? If the defendant’s words weren’t about a king, then what were they about? They are about some unspecified but negative conditions of a reign. It is not lèse-majesté but rather lèse-âge.
But to illustrate a point, let’s say that it was a criticism of the reign, about the governing system, and about the lack of freedom. Almost all of the Thai feudal structures were in place. There were slaves; there were serfs; at least some felt the system was despotic. Is one supposed to assume that any debate about this reign or that reign, or this administration or that, is going to end with this ruling?
Finally, up to now I have been referring only to the lower court’s decision. A strange ruling in a lower court is troubling, but then again, the system is supposed to fix folly. In fact, the Appeals Court overturned the lower court’s decision. Had it stopped there, everyone could feel reassured. But the prosecutors were not satisfied and moved the case upward. The Supreme Court begins its ruling by point out that the Article 112 does not actually specify exactly which “king” or “queen” or “heir-apparent” is to be protected by the law. The court then connects the issue to the ever-vague and always-dangerous concept of national security. If some words about a previous king affected the present monarchy, then that affected national security, the section of the criminal law, after all, Article 112 resides. The Thai people have always felt a great connection with their kings and held them in a position of revered worship. This is especially true of the kings of the Chakri Dynasty. The constitution protects the king, or perhaps any past king, from accusations of any sort. The court said, “Although the [defamatory] action was against a past king who had already passed on, it is still a violation….The defamation of a past king will inevitably affect the present king who still reigns.” The king defamed in this case was the father of the grandfather of the present king. If the law, says the court, is restricted to only protecting the reigning king, this opens “a path to committing defamation” against past kings. As there are still official rites paid to the memory of these past kings, they are still important to the Thai people. In conclusion, “contempt or defamation of kings who have already passed away…would still have a negative effect on the feelings of the people that would lead to dissatisfaction and might affect the security of the kingdom.”
The Supreme Court upheld the decision of the lower court. But it refused the prosecution’s demand that the defendant be jailed. The Supreme Court disagreed, saying the defendant had shown remorse for his heinous and that his not being jailed would give him a chance to redeem himself and become a good citizen in the future.
Although many countries still have a law protecting the dead from defamation in their books, for very good reason this law, even in Thailand, is hardly, if ever, used.
However, when the political and legal regime in a country begins to go out of whack, the desperate reach for the law books to find some especial creation to relieve their anxiety. In Turkey, for instance, a law in 1951 punished any “offending or insulting” the memory of Mustafa Kemal Atatürk with imprisonment from one to three years. If force was used in making said insult, the penalty was doubled. If committed in public or in the press by two or more people, the penalty was increased by half again.*
British society once faced this kind of challenge. In a famous case of seditious libel, the Crown tried to prosecute a printer who published poems critical of a monarch who had died three years prior. The defense counsel for the printer argued that yes, the present monarch might take it hard when his predecessor was criticized. But to be a “monarchy of a free people,” the king had to “temper his feelings with a due regard to his own situation, and not to be affected, like a private individual, by any representation of his predecessor.” He warned that “if it be deemed a libel because it is offensive to the reigning Monarchy, there is an end to all history as well as to all poetry….it would be the greatest calamity to mankind if the mouths of all persons must be shut when he is dead.” The case was in 1823. The judges overcame their desire to protect a dead king and instead protected the common good by only fining the defendant.
It is something of a tribute to historians that the Turkish and Thai governments are so fearful of history. The historical orthodoxy that this Supreme Court decision ostensibly tries to protect is antithetical to democratic values and the spirit of free and equal public inquiry.
* I thank Aj. Piyabutr Saengkanokkul for bringing this law to my attention.