On the 8 February Royal Command: an interview with Sawatree Suksri

On 8 February 2019, the Thai Raksa Chart Party (TRC) caused a political earthquake by nominating former princess Ubolratana Mahidol as their candidate for Prime Minister. This is the first time in Thailand’s political history that a high-ranking member of the royal family has officially sought a position in politics.

Princess Ubolratana

Ubolratana relinquished her royal titles in 1972 to marry fellow MIT student Peter Ladd Jensen, who she subsequently divorced in 1998. She returned to Thailand in 2001 and resumed royal duties and her position within the Thai court, but did not regain her formal titles. Her status as the eldest child of the late King Bhumibol and older sister of King Vajiralongkorn has raised questions from all sides as to whether she can run for political office.

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Later that night, a Royal Command was issued saying that “…the queen, the heir apparent, and all members of the royal family come within the principles of being above politics and of political neutrality of the monarch and they cannot assume any position in politics because this would contradict the intention of the Constitution and the traditions of a democratic system of government with the monarch as head of state.”

On 13 February, the Election Commission of Thailand (ECT) then filed a case with the Constitutional Court to rule on the dissolution of the TRC Party for undermining the constitutional monarchy.

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Prachatai interviewed Sawatree Suksri, lecturer at the Faculty of Law, Thammasat University, on the legal status of the Royal Command and its interpretation.

The Royal Command as the monarch’s personal recommendation
 

Sawatree said that the common misunderstanding is that announcements in the Royal Thai Government Gazette are laws. However, the Government Gazette is only a publication of official announcements.

If anything is to become law, it has to follow the country’s legislative system. Thailand has a codified system of laws issued by the legislative branch, or the executive branch in the case of a royal ordinance, or the administration in cases of secondary laws where this is allowed by the fundamental laws. Because of this, the royal command is not a law, because it did not go through legislative procedures.

Sawatree said “the content of the Royal Command is not an order, but a recommendation. Even though at the end it looks like an interpretation to broaden the meaning of the Constitution, in general it is not a clear order and has no legal effect at all. So the Royal Command is, of course, not a law. Even if it is issued as a Royal Command, its content is not an order to do either one thing or another. It just states that the monarchy should be above politics and inviolable. This leaves each party to go and think for themselves what should happen next, but it is certain that the King disagrees with Princess Ubolratana becoming a candidate. And that’s it. It’s like the words of what His Majesty thinks.

“If in the end Ubolratana Mahidol decides to be a candidate for Prime Minister, she can do so because the Constitution does not forbit it.”

Is the royal command being treated as if it is a law? Sawatree said that we will have to wait and see if the Constitutional Court will cite the Royal Command to justify its ruling, but in principle, the Royal Command is not legally binding and is not an order for anyone to do anything. Sawatree thinks that if in the end the interpretation is not in accordance with the text of the law, the Court should not broaden the law’s meaning.

Independent organizations and judges cannot extend the meaning of the laws beyond the text
 

Sawatree explained that a royal recommendation can be made in the name of the monarchy as an institution under the Constitution. An institution can interpret the law, and it is considered their recommendation. This means that it is not a law and therefore is not binding.

Sometimes, the judicial branch may interpret certain laws. In countries which are under a customary law system, some interpretations may become legislation. However, in Thailand’s codified law system, no matter how good the Court’s reasoning is, its interpretation has no legal effect, and is only an interpretation by a single institution within the Constitution.

“So if we are to compare the two cases, the King can make a recommendation like this, but the recommendation is not a law that can extend the meaning of the text, especially if the text itself is already written clearly. In this case no interpretation is needed. Section 6 of the Constitution mentions only the King; it cannot be interpreted beyond the words written in the law.”

Sawatree Suksri

“The King can do no wrong”
 

If we look at Section 6 of the current constitution, which corresponds to Section 8 in the 2007 Constitution, there is the principle that “the king can do no wrong.” This means that the king can do no wrong because he has not done anything. His commands therefore have to be countersigned by the legislative, executive, or judicial branch. In this case, it is clear that this only applies to the monarch. Sawatree emphasized that the king’s opinion is only an interpretation by the monarchy as an institution that is part of the constitutional system.

Sawatree said “The ‘king can do no wrong’ is a reference to the monarch’s legal or administrative actions, which if they have legislative or administrative authority, must use the authority through legislative, executive, or judicial organizations. So this does not set in stone that the monarch cannot do anything else. He can, but when he has done it, it does not come under the protection of Section 6, because Section 6 applies only when he exercises his legal and administrative authority through these three branches of the government which have the responsibility.”

Effect on Article 112
 

There have been some concerns that Article 112 would now also be extended. However, Sawatree said that the principle of ‘the king can do no wrong’ and the principle behind Article 112 are different. ‘The king can do no wrong’ is about the monarch’s legislative and administrative actions. This principle has existed since the absolute monarchy era, but it was interpreted back then to mean that the king could not do wrong because he had immeasurable power, and was not related to who countersigned the king’s commands. When the system changed, the principle remained but had to be re-interpreted accordingly. 

“But Article 112 is a criminal law matter which protects all aspects of the reputation and prestige of the monarch, the queen, the heir apparent, and the regent, and does not have anything to do with the principle that ‘the king can do no wrong.’ The principles are different, so this Royal Command has no effect on Article 112 in law and should not have any legal effect at all,” Sawatree said.

Nevertheless, in practice, there is a chance that the court will make such an interpretation, which is in principle incorrect. The court will face opposition if it rules in such a manner. Article 112 is also a criminal law. It has to be interpreted based on the text, and cannot be re-interpreted or extended in a way that has negative effects.