Academics condemn Supreme Court’s ruling to have lèse majesté cover former kings

At the latest book fair in Bangkok, one of the best sellers, though controversial, was Chanan Yodhong's Nai Nai during the Reign of King Rama VI. The book explores male homosociality in the royal court during the reign of King Vajiravudh. It also gives a vivid description of the relationship between the “gentlemen-in-waiting” and the king, who ruled between 1910 and 1925, with hints of the monarch’s sexual orientation. The book was based on the author’s thesis in Women’s Studies at leading Thammasat University in Bangkok. 
 
Despite Thailand having one of the harshest lèse majesté laws in the world, Chanan managed to publish the book through Matichon Publishing, because it was understood that the notorious law did not apply to former kings. 
 
However this understanding has been strongly questioned after the Thai Supreme Court recently handed down a landmark lèse majesté verdict. 
 
Although the lèse majesté law or Article 112 in the Criminal Code clearly states "Whoever defames, insults or threatens the King, Queen, Heir-apparent or Regent shall be punished (with) imprisonment of three to fifteen years," the Supreme Court in May returned a guilty verdict in a lèse majesté case where the court applied the law to King Mongkut (Rama IV), who reigned from 1851 to 1868. In its verdict, the court reasoned that “defaming the former king can affect the current king” and “King Mongkut was the great grandfather of the current king”
 
King Rama VI was a grandson of King Mongkut and uncle of the current king. 
 
“I was shaken and frightened after hearing the news,” said Chanan. He said he was the target of a lèse majesté lawsuit when a group of alumni from conservative all-male schools attempted to file a lèse majesté complaint against him.  But the attempt failed as no lawyers thought that the lèse majesté law covered King Rama VI. “I’m afraid they will revive the attempt now,” the author said. 
 
“The study of Thai history is already limited. We have quite a limited knowledge of Thai history already. If we are prohibited from criticizing deceased kings, there is no point in studying Thai history anymore,” Chanan said. 
 
Ramkhamhaeng University political scientist Pandit Chanrochanakit told Prachatai that the verdict will lead to more self-censorship among academics who study Thai history. The academic, who specializes in Thai politics, said that under the absolute monarchy, the King administered every aspect of the kingdom and had an immense role in politics. 
 
Moreover, the court raised the issue of kinship.  Intermarriage was a common practice among the Thai elite during the absolute monarchy and all the Kings’ ministers were relatives of the Kings, the academic pointed out. 
 
Therefore, The Supreme Court’s ruling will bar frank debates about Thai politics, at least during the absolute monarchy under the Chakri dynasty which lasted from 1782 to 1932. 
 
The question is how far back in time that the law would apply, Pandit said. 
 
Worajet Pakeerat, a leading member of the courageous Nitirat (Enlightened Jurists) group of law academics from the Faculty of Law, Thammasat University, said there are two problematic issues in the verdict. First is the interpretation of “defames, insults or threatens” and second is the people who are protected under Article 112. 
 
Regarding the first issue, he strongly disagreed with the court. The problematic speech does not constitute defamation, insults or threats. “The speech only compares [the defendant’s circumstances] to the facts of Thai history.” 
 
The problematic speech of the defendant reads “[Speaking of] human dignity, of what we do, if we do it freely with our own thoughts for you people, I’ll go. However, if it would be like [in the era of] King Rama IV, I won’t. That era has ended.”  The statement refers to the time before King Rama V abolished slavery in 1905.  The defendant, a local Chonburi politician, was complaining on a local radio programme, explaining that he would not join his opponent’s party even though he was approached because he does not want to be controlled. 
 
The second issue, Worajet said, is based on the legal principle of “no penalty without law.” The principle prohibits retroactive application and application by analogy in criminal law, among others.
 
Article 112, the academic said, protects persons who are currently holding the four positions – the King, the Queen, the Heir Apparent and the Regent. Defamation against persons who once held the position or who are expected to hold the position in the future would fall under the general defamation law.  
 
Worajet said the judges over-interpreted the wording of Article 112 and the verdict obviously shows that the judges applied the law by analogy.
 
“. . . Given that the law does not mandate that the king must be currently reigning only, the person who acted [the defendant] is therefore guilty under Article 112 of the Criminal Code. Even though the action was against a deceased king, it is still an offence in line with the aforementioned law . . . ,” reads part of the verdict, which Worajet points out is application by analogy. 
 
The problem of this interpretation is that it applies retroactively with questions of where it would end, said Worajet.  “There will be questions of how far back in history this goes, which deceased monarchs are covered and which dynasties. This is certainly not the spirit of Article 112,” the academic said.
 
“Anyway, there is no law supporting this. A new law must be enacted if there is a need for deceased monarchs to be protected,” he added. 
 
Meanwhile, renowned Thai historian Thongchai Vinijakul said the studies of Thai history in Thailand have already been narrow and under too many restrictions. “This verdict will make it even more provincial, if it has not yet been provincial to the extreme,” said the historian in email correspondence. “It will reduce history to hagiography, historians to preachers, the Ministry of Education to Mini-education, education to indoctrination if it is not already indoctrinating enough.”
 
Thongchai said the way Thai people treated the monarchy before hyper-royalism in the past 40-50 years was similar to the way they treat a Buddhist monk today. They respect a monk even though they know that individual monks can be terrible. Criticism of individual monks does not mean criticism of Buddhism or the Sangha as a whole. Such criticism does not make the critic himself less Buddhist either. “The verdict reflects how far removed these educated people are from Thai ways of living and out of touch. They become the guardians of hyper-royalism,” observed the historian.  
 

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