If you asked me if the decision by a military prosecutor to drop the lèse majesté charge against renowned historian and social critic Sulak Sivaraksa is good news, I’d say, ‘yes it’s good that the old man does not have to spend time in jail’. But if you asked me if this is a good sign for the state of freedom of expression in Thailand, I’d say ‘no, it’s not.’ Why? I’d like to present to you the following observations:
Sulak Sivaraksa received the certificate of an honorary doctorate in philosophy from King Vajiralongkorn on 1 December 2017 at Thammasat University
1. The military prosecutor decided to drop the charges because the evidence is insufficient.
First of all, please note that the public prosecutor did not say that criticising ancient kings or dead kings does not constitute lèse majesté. They said they lack strong evidence against Sulak. There is no information at all about “the evidence” which is allegedly weak.
Sulak, 84, did make a public statement questioning the historical authenticity of the story of the King Naresuan elephant duel during his speech on 5 October 2014 at Thammasat University.
As Sulak did make the statement and the attorney did not say criticising ancient kings is legally permitted, what constitutes insufficient evidence?
2. Very few lèse majesté defendants have been acquitted because of insufficient evidence.
There are only two cases that I know of. The first is that of Suraphak, a programmer who was accused of creating a lèse majesté Facebook page. The other concerns Yutthaphum, who was sued by his own estranged brother for defaming the king.
In the case of Suraphak, the court acquitted him because the electronic evidence (his laptops) may have been contaminated and manipulated by the prosecution.
In case of Yutthaphum, the court found him not guilty because the only witness in the case was Thanawat, his brother and the person who filed the lèse majesté complaint. The court ruled that Thanawat was not a credible witness since the two were in conflict. Both of them had also engaged in serious physical assault several times before this case.
The “insufficient evidence” in both cases was based on the fact that the prosecution could not prove that the defendants really committed the alleged acts of lèse majesté. Both of them were denied bail and held in jail until the court acquitted them.
3. Sulak’s choice of lawyer: a royalist lawyer who is inexperienced in lèse majesté cases.
Puangthip Boonsanong, Sulak's lawyer, has worked for the yellow-shirt People’s Alliance for Democracy (PAD) and the anti-election People’s Democratic Reform Committees. Both are ultra-royalist movements.
Why did Sulak choose a lawyer who lacks experience in lèse majesté cases, but is affiliated with royalist organisations. Sulak could easily have retained human rights lawyers such as those from Thai Lawyers for Human Rights (TLHR), who specialize in defending lèse majesté suspects. But you can see that most human rights lawyers are branded as red shirts or anti-establishment. Sulak’s strategic choice of lawyer signalled that he did not want to fight about the principle and was looking for a compromise.
4. Sulak says the ‘barami’ of King Rama X helped him in this case.
On Wednesday, after learning that the charges were dropped, Sulak said to the media “I believe the barami of the King protected me. This King did so many things behind the scenes. And in my case, if not for his barami, I would not be freed, because the Prime Minister is a jerk, is someone who never thinks of doing anything courageous. He is scared. If not for the royal barami, my case would never end.”
Just a month ago on 1 December 2017, Sulak had a chance to meet the King at Thammasat University during a commencement ceremony. Sulak, breaking his word that he would not receive any honour from the Thai state, received an honorary doctorate in philosophy from King Vajiralongkorn.
Therefore I think that whoever thinks that what happened on Wednesday to Sulak is a good sign, should think again.