Towards the end of 2014, the arrests of high ranking police officers and the siblings of Srirasmi, former Royal Consort to the Crown Prince, made the headlines in Thai and International media. The chain of arrests led to the “resignation” of Srirasmi, who later left the palace as a commoner. Apart from normal criminal charges, such as bribery, money laundering, and abduction, the police accused almost all of the suspects in this case of lèse majesté for making false claims about Crown Prince Vajiralongkorn for personal gain. However, it is debatable if the lèse majesté law can be applied to people citing the monarchy for personal interests.
Unlike the political dissidents hunted down by the junta for their political speeches allegedly defaming the monarchy, claims about the monarchy for personal gain may not be deemed as “defaming, insulting, or threatening,” as prescribed in Article 112, or the lèse majesté law.
One must question carefully whether or not claims about a royal personage protected under Article 112 for personal benefit are an offence under the law. This is primarily because Article 112 is a section of Criminal Code and in the judicial procedure in criminal cases, the intention in committing the crime is vital to the ruling. Therefore, the intention of citing the monarchy for personal benefit might not be to defame or insult people protected under the lèse majesté law.
What are the standards for this? The following article by iLaw, translated by Prachatai, looks back at court rulings in cases of a similar nature to find the standard of application of lèse majesté (if there is one.)
Article 112 of the Criminal Code or the lèse majesté law is enacted to protect the King, Queen, Heir-Apparent, and Regent from being defamed, insulted and threatened with harm. It is a law that belongs to the first Section dealing with national security laws and carries a penalty of 3-15 years imprisonment.
Since the coup d’état in May 2014, the number of cases under Article 112 has increased rapidly. Cases have been filed against many people for making false claims about HM the King and others who are protected by this law in order to seek personal benefit.
Word by word interpretation of Article 112 of the Criminal Code
The 2011 edition of the Dictionary of the Royal Thai Institute gives the following definitions of the words appearing in Article 112.
The word ‘insult’ (in Thai: du min) is a verb which means to act, speak or write in a way which expresses contempt for the inferior status of others or for the fact that they are not really good or really competent. (2014, Page 441)
The word ‘defame’ (min pramat) is a verb which means to act or speak in a way which insults other people. Legally, it is a noun which means the criminal offence of slandering others to a third person in a way that is likely to cause those persons to be defamed, insulted, and hated. (2014, Page 1304)
The phrase ‘threaten to harm’ (akhat matrai) is a verb which means to be vengeful and to intend to harm others. Together, the two words mean to act vengefully with ill will. (2014, Page 1401-1402)
According to Article 326 of the Criminal Code, whoever defames others to a third person in a way that is likely to make the others to be defamed, insulted or hated has committed the offence of defamation.
If Article 112 of the Criminal Code is strictly interpreted, those persons who are liable under the scope of this law must have expressed the intention, either by speech, writing or behaviour, in a way that insults, maligns and slanders those who are protected by this law, or expressed behaviour that is vengeful or bears ill will to those who hold positions that are protected by this law.
Whether or not falsely using the name of royalty to seek personal benefit is within the scope of an offence under Article 112 should be considered in careful detail. This is because making a false claim has a different intention from insulting, defaming or threatening harm, and for acts of the nature of making false claims to seek personal benefit, the offence on fraud already specifies a penalty.
The use of Article 112 of the Criminal Code before May 2014 to prosecute those making false claims
Prior to the coup d’état in May 2014, most lèse majesté charges were filed in cases related to political expression. However, in at least two lèse majesté cases, suspects were charged with citing a royal name to seek personal benefit: the cases of Prachuab I. and Assawin (surname withheld).
Prachuab case: making false claims about HRH Princess Sirindhorn is not an offence under Article 112.
Prachuab was arrested in early 2004 and faced three lèse majesté cases under Article 112 of the Criminal Code. In one case, he was accused of falsely claiming that he once worked for HRH Princess Sirindhorn while police officers were searching his car. In the second case, he was accused of falsely claiming that he once worked for HM the Queen and HRH Princess Bajrakitiyabha, the eldest daughter of HRH Crown Prince Vajiralongkorn. In the last case, when the police invited him to talk at a police station on a case related to fraud, Prachuab was accused of falsely claiming that he once worked closely for Princess Sirindhorn and that arresting him might make trouble for the arresting officers.
Nakhon Sawan Provincial Court ruled in late 2004 that the false claims by the defendant about HM the Queen, HRH the Crown Prince, and HRH Princess Sirindhorn were not made to honour the monarchy, but were made to seek personal benefit. Making claims about the monarchy without having the duty to do so under royal approval is insulting or defaming the monarchy. The acts of the defendant were separate offences and each was given the penalty of 5 years in jail, totalling 10 years. Prachuab appealed the verdict.
In early 2005, the Appeal Court ruled that since HRH Princess Sirindhorn was not the Heir-Apparent, the act of the defendant was therefore not an offence. However, the defendant’s claims about HM the Queen and HRH the Crown Prince were an offence, and he was sentenced to five years in jail. Prachuab appealed the verdict to the Supreme Court. In April 2009, the Supreme Court reduced the jail term from five to four years because the defendant had never before committed any criminal offence and still expressed his loyalty. Since on the day that the verdict was read, Prachuab had already been imprisoned for four years and seven months, he was released.
Assawin case: Whether or not making false claims is an offence must take into consideration if listeners believed the claims or not.
The case of Assawin, a Chiang Mai businessman, is another case in which the defendant was accused and convicted of citing the name of a royal person protected by the Article to seek personal benefit.
Assawin was accused of three offences. The first was for expressing to others opinions that insulted HRH the Crown Prince as Heir-Apparent, and the other two counts were for making false claims that he was close to HM the King in order to seek personal benefit. Assawin turned himself in to the police in late 2006. Chiang Mai Provincial Court accepted the case in mid 2010 and he was released on bail during the investigation and trial.
Chiang Mai Provincial Court dismissed the case against Assawin in December 2013 because there was reason to doubt whether or not the defendant made the alleged remarks. The court however did not rule on the content of the alleged remarks. In July 2014, the Appeal Court partially reversed the ruling of the Court of First Instance.
The Appeal Court dismissed the offence of insulting HRH the Crown Prince because witness testimony contained sufficient doubt, and the second offence of making false claims that he would develop land to build a residence for HM the King because those with no interest in the case of buying and selling land, when hearing the words, believed that this was drivel. Making false claims like this did not make listeners have feelings of hatred towards HM the King.
However, on the third charge, in which the defendant cited the name of HM the King to convince the owner of a resort to give him a room, the court ruled that the resort owner was likely to feel that he had an interest, and feel contempt for HM the King. Therefore, the act of the defendant was insulting to HM the King and the Appeal Court sentenced the Assawin to five years in jail. The case is now before the Supreme Court.
The prosecution of cases of making false claims about the monarchy after the coup d’état in May 2014
The protection of the Thai monarchy is one of the top priorities of the junta’s National Council for Peace and Order (NCPO). After the May coup, many people were arrested and charged under Article 112 of the Criminal Code. Most of them are political dissidents.
A new phenomenon in the use of Article 112 which has appeared since the coup is the arrest and prosecution of those who have close connections with the institution of the monarchy on charges of making false claims about the monarchy to seek personal benefit.
17 November 2014: Lt Col Burin Thongprapai, a staff member of the military Judge Advocate General’s Department and police officers from the Crime Suppression Division arrested Chainarin K., the Secretary General of Office of The Under Royal Graciousness [sic], together with Pitchakan W. Both were accused of using the name of the monarchy to making claims about many projects throughout the country, which is an offence under Article 112, such as asking to use a building of CAT Telecom Public Co Ltd for three years without paying rent. The arrests were made after M.R. Somlabh Kitiyakara, the former Secretary-General of the Office of The Under Royal Graciousness, filed a lèse majesté complaint against Chainarin.
3 December 2014: Dr Phanarot Tamprateep, the Deputy President of the Board of the National Anti-corruption Network and village representatives from Pha Pang Subdistrict, Mae Phrik District of the northern province of Lampang filed lèse majesté and fraud complaints against Chainarin and 13 others. Phanarot and the villagers accused Chainarin and his associates of making false claims about the monarchy to convince the villagers to cut down three tons of bamboo trees per day on about 1,400 acre of land for a ‘Lampang Model’ sustainable community research project of the Office of The Under Royal Graciousness.
On 12 December 2014, four victims of participating in a training curriculum called ‘Pillar of the Kingdom’ filed lèse majesté and fraud complaints against Chainarin and 13 others. These were accused of asking nearly a hundred high-ranking state officials and businessmen to participate in a programme called ‘Pillar of the Kingdom’, in which individual participants were each charged up to 100,000 baht (about 3,050 USD). Most participants in the training were led to believe that it was conducted in the name of the monarchy.
In addition, there are reports of the prosecution of cases against Mr Phuchit, a committee member of the Foundation of King Rama Nine the Great, and Col Siratchabut, who is closely associated with the palace, under Article 112 in the Military Court of Bangkok. In total, at least four people who are closely associated with the institution of the monarchy have been arrested.
The prosecution for the practice of making false claims of a network of high-ranking police officers in November 2014
The prosecution of people charged with making false claims, fraud and lèse majesté which have currently attracted much public attention are those made against the network of high-ranking police officers of Pol Lt Gen Pongpat Chayapan, Commander of the Central Investigation Bureau, and Pol Maj Gen Kowit Wongrungroj, Deputy Commander of the Central Investigation Bureau.
In the arrest warrants issued on 22 November 2014 against the network of high-ranking police, eight other police officers and civilians were accused of fraud and misconduct. Two other high-ranking officers were also charged with lèse majesté.
23 November 2014: Pol Lt Gen Prawut Thavornsiri, spokesperson and assistant to the Royal Thai Police commander, revealed that Pol Lt Gen Pongpat, Pol Maj Gen Kowit and eight others were arrested and detained under martial law. All detainees confessed and two other civilians were still being pursued by the police.
24 November 2014: Pongpat and Kowit were brought to the Criminal Court for detention. The court rejected the bail requests of both suspects.
28 November 2014: Investigation officers detained Natthapol, Sitthisak, and Narong Akharaphongpreecha, Sutthisak S. and Chakan P., who are allegedly criminal associates of Pol Lt Gen Pongpat Chayapan. The five were detained by Prakanong Provincial Court in Bangkok under Article 112 and other charges including coercion with threats to life, person and freedom, unlawful detention and kidnapping
30 November 2014: Natthanan T. and Chalach P., two suspects accused of lèse majesté, assault and coercion, reported to the police. The two were suspected of threats and making false claims about the monarchy in an attempt to reduce the amount of a debt of Nopporn S., a businessman, who is alleged to have a connection with the Akharaphongpreecha brothers. The two suspects confessed.
1 December 2014: Wittaya T., a suspect facing an arrest warrant reported to the police while Manager Online reported Nathakon and Thiraphong, were arrested and detained by the Judge Advocate General’s Office.
On the same day, the Military Court of Bangkok issued an arrest warrant against Nopporn S., an energy millionaire, who was accused of criminal association with the Pongpat network. On December 2014, he denied all allegations against him in a phone interview with the press from unidentified location and said that he needed to flee to prepare to fight the case.
6 December 2014: Capt Prinya Rakwathin, managing director of Chao Phraya Express Boat, reported to Watprayakrai Police Station after an arrest warrant was issued against him for lèse majesté, harming others, conspiracy to robbery, conspiracy to coercion and assault. He was implicated in criminal association with the Pongpat network.
On the same day, the Military Court issued an arrest warrant against Nuanrat H., 48-year-old owner of an ice-making business, for citing the monarchy in threatening a rival at a Pathum Thani wholesale market to stop trading under Article 112, and threatening others. She is now in detention.
10 December 2014: Police officers arrested Sudathip M. on a charge of lèse majesté. Previously Sudathip was the subject of an arrest warrant on other charges together with Pol Lt Gen Pongpat. 10 December 2014: Sudathip was taken to the Criminal Court to apply for authority to detain her. The detention request detailed that Sudathip used her family connection with the monarchy to supply chili paste and other dishes to Sukhothai Palace. If other shops made bids, the accused claimed her family connection with royalty. She received a monopoly concession. These claims caused damage to the reputation and honour of the institution and therefore constitute an offence of lèse majesté.
12 December 2014: The Military Court of Bangkok issued additional arrest warrants against Chakan P. and Natthapol Akharaphongpreecha while the two were already under detention. The two were accused of lèse majesté after the National Institute of Development Administration (NIDA) filed a complaint that they had cited the monarchy as an excuse to be absent from classes at NIDA.
24 December 2014: Investigating officers of Khlong Luang Police Station requested the military court to issue an arrest warrant against Kasina W., a close friend of Natthapol Akharaphongpreecha, for defaming the monarchy and detaining others. On the same day, Thonburi Provincial Court issued an arrest warrant against her and two other unidentified men under Article 112. The three were accused of involvement in citing the monarchy to monopolise the ice-making business at a Pathum Thani wholesale market.
Pol Lt Gen Srivara Rangsipromnakul, Commander of the Metropolitan Police, announced that Kasina was arrested and detained and that the police will continue to look for two unidentified men accused of the same charge.
In total, at least 26 people have been accused of associating with the monarchy-citing network and high-ranking police, 19 of whom have already been charged with lèse majesté. Out of this number, 16 suspects have been brought to trial. There is no report on whether the suspects have been granted bail or not. Three suspects in this case are still on the run.
Concerns for the wider application of the lèse majesté law
Although prior to the 2014 coup d’état there were prosecutions of suspects charged with making false claims under Article 112 to seek personal benefit, these were very few in comparison to the total number of Article 112 cases. There are concerns that the arrests and prosecutions for the offence of making false claims, which have been continuously increasing in 2014, will create a new benchmark in extending the application of the lèse majesté law to cover a broader range of offences beyond the intention of the law to safeguard national security.
Because criminal law gives importance to the intention of the offender, the choice of law to be used against an offender must therefore take into consideration the intentions of the perpetrator. The act of making false claims is likely to be motivated by material gain, not the intention to act against national security. The act of using the name of royalty with the intention of wrongfully gaining material benefit from others should therefore be prosecuted as the offence of fraud, not lèse majesté.
The lèse majesté law or Article 112 is the most sensitive issue in Thai society. News of prosecutions or sentences under this law is likely to be strongly criticised in online media where opinions are likely to differ among many factions according to the individuals’ political beliefs Therefore the enforcement and sentencing of individuals under this law must proceed in the most watertight and limited way so that these cases do not ignite social conflict.
The extension of lèse majesté cases to cover offences involving the making of false claims should make lese majesté cases more numerous may have the effect of further escalating social conflict.
Moreover, the practice of making false claims per se is likely to be conducted in secret without clear evidence, so it is hard to prove the allegation. Therefore there is concern that defendants accused of lèse majesté must face severe judicial and social pressure because of the political atmosphere and viewpoints of people in society. Article 112 may be easily used as a tool for business rivals to accuse one another in order to destroy their opponents.