On 10 November 2021, the Constitutional Court read a ruling regarding a petition on whether or not the speeches calling for reform of the monarchy given by Anon Nampa, Panupong Jadnok and Panusaya Sitthijirawattanakul on 10 August 2020 constituted overthrowing rule of democracy with the king as head of state. The Constitutional Court ruled that it did, and in so doing, equated calls for reform of a regime with overthrowing that regime. The official decision has not yet been released by the Constitutional Court or published in the Ratchakitchabeksa, but a translation of an unofficial transcript is below. This transcript is of the decision as read by the Constitutional Court and was transcribed by iLaw and published as part of this report in Thai by Prachatai:
Ruling No. 19/2564
10 November 2021
The admissible facts according to the petition, the explanation and various pieces of evidence, including audio files of the speeches by Respondents Nos. 1-3 are that Respondents Nos. 1-3 gave speeches in public many times at many locations beginning on 3 August 2020 demanding that there be modification to the institution of the monarchy. At the demonstration at Thammasat University, Rangsit campus, on 10 August 2020, Respondents Nos. 1-3 argued for the transformation of the institution of the monarchy through 10 demands. The significant content was to revoke Article 6 of the Constitution, which prohibits the bringing of cases against the king, and amending to allow parliament to bring cases against the king. It also included the demand for the revocation of Article 112 of the Criminal Code and to allow the people to exercise freedom of expression to offer opinions about the institution of the monarchy as well as an amnesty for all those prosecuted for criticizing the institution of the monarchy.
An objection that must be ruled on first is if the petition is ambiguous, unclear and does not fulfill the elements of Article 49 of the constitution. Upon examining the petition and accompanying documents, the view of the court is that this is a case in which the petitioner claimed that the speeches of Respondents No. 1-3 on 10 August 2020 at the ThammasatWontStandForIt stage, held at Thammasat University, Rangsit campus, contained content that distorted, encroached upon, mocked and defamed the institution of the monarchy and queried whether or not these were actions with the intention to overthrow rule of democracy with the king as head of state according to Article 49 of the Constitution. The petition cited various documents including transcripts of audio files which illustrated the actions of Respondents Nos. 1-3 and their group, which were appended to and included as part of the petition.
The petition is therefore clear and sufficient for Respondents Nos. 1-3 to understand the conditions of the actions for which they are accused. They are able to fight the case. The objection of Respondents Nos. 1-3 is therefore not tenable.
The point which must be examined and ruled on is whether or not the actions of Respondents Nos. 1-3 were the exercise of rights or freedoms to overthrow rule by democracy with king as head of state according to Article 49, paragraph one.
The Constitutional Court has examined and found that the constitutional principles lay a foundation for rule by democracy with the king as head of state. The constitutional values, which are the kernel of rule by democracy with the king as head of state, include important values such as the protection of rights and freedoms of Thai people according to Section 3 of the constitution. The protection of rights and freedoms of the people was first provided for in the 1932 Constitution of Siam and has been provided for continuously in every constitution.
The Constitutional Court then quotes Article 25, paragraph one, which stipulates what the rights and freedoms of Thai people include, and explains that the guarantee of the people’s freedoms is divided into two portions. There are freedoms that are stipulated specifically in the constitution and freedoms that are not prohibited by other laws. Thai people have the aforementioned rights and freedoms. They are constitutionally-protected in every case, with the condition that the exercise of rights and freedoms that are protected by the constitution and other laws must not impact state security, contravene peace and order or good morals of the people, or violate the rights and freedoms of other people.
When an individual has rights and freedoms, they also have accompanying duties and responsibility. This appears in Section 4, Duties of All Thai People, Article 50 (1) (3) (6) and including Article 49, which is about individuals exercising rights and freedoms to overthrow democratic rule. Article 49 of the constitution aims for all Thai people to participate in protecting and preserving democracy and provides the Constitutional Court with the authority to perform the duty of monitoring, ruling and ordering the cessation of actions that overthrow the aforementioned rule.
Article 49, paragraph one, of this constitution (2017), which was first stipulated in Article 35 of the 1932 Constitution (1952 Revision), and stipulated in the same manner in every subsequent constitution, is about the principle of protection of democracy with the king as head of state. The article is intended to protect against threats arising from the exercise of constitutional rights and freedoms. The intention is for the constitutional values to support the existence of democracy with the king as head of state, not for it to be overthrown or lost.
The principle according to Article 49, paragraph two, that gives the Constitutional Court the authority to rule as such, was stipulated for the first time in the 1997 Constitution, and similarly stipulated in the 2007 and the 2017 Constitutions. The purpose is so that if anyone [attempts to] overthrow rule, the right to petition the Office of the Attorney General to send the matter to the Constitutional Court to cease the aforementioned actions exists.
The facts according to the petition, the additional petition, the explanation of the accusation, documents and various evidence from the Office of the Attorney General, the Superintendent of the Khlong Luang Police Station in Pathumthani province, Secretary-General of the National Security Council (NSC), the Director of the National Intelligence Agency, the rector of Thammasat University and the National Police Commissioner concern the speeches on 10 August 2020 when Respondents Nos. 1-3 organized a protest stage to talk about the institution of the monarchy.
The constitution has articles to prohibit the exercise of rights and freedoms to overthrow rule. Such articles appear in the 1997 Constitution, the 2007 Constitution and the 2017 Constitution. Constitutional Court Ruling No. 18-22/2555 and Ruling No. 3/2562 (the case of Thai Raksa Chart Party) formulate that the word “overthrow” denotes a grave threat to the constitution and the system of rule that is impossible to rectify. It refers to actions to destroy or devastate the system of rule until it completely dissolves and no longer exists. Exercising one’s rights and freedoms to call for the amendment of the constitution to change the royal status of the king causes the king to not be respected and worshipped. It creates turbulence and insubordination among the people. It is the exercise of rights and freedoms in excess of what is appropriate. It has dangerous repercussions for the security of the state, peace and order and the good morals of the people. It will ultimately undermine democracy with the king as head of state.
The king and the Thai nation have been indivisible from the past until the present, and will exist together in the future. Thailand is a democracy with the king as head of state, with Thai people in agreement to invite the king to be head of state and paying homage to his inviolability in order to maintain Thai nation-ness, as is outlined in the 1932 Constitution.
From the article stipulated in the 1932 Constitution, the history of Thai rule and that the authority to rule always belongs to the king from the Sukhothai period through the Ayutthaya period and up to the Rattanokosin period can be seen. The king has the gravely important mission to preserve the survival of the country and the people, by holding the position of the Supreme Commander of the Thai Army and leading the military to fight to protect and expand the kingdom always. In previous eras, the principles of rule followed religious principles and rule by the Ten Perfections. The king therefore has been respected and the spiritual center of all Thai people for hundreds of years. Even with the transformation of rule in 1932, the People’s Party and the Thai people were in agreement to invite the king, who is the primary institution, to co-exist with democracy, by calling it rule by democracy with the king as head of state. The kingdom has maintained this system continuously, in the same way as various other countries, which have different histories of nationhood but share having identity, symbolism, and national treasures, and laws to prohibit these from becoming stained or damaged.
Therefore, the making of demands that call for the abolishment of the recognition of the royal status of the king, the head of state who is inviolable, is therefore an action with the explicit intention to smash the institution of the monarchy. The actions of Respondents Nos. 1-3 undermine and subvert democracy with the king as head of state. They call for attacks in public and incorrectly cite their constitutionally-provided freedoms. They use obscene phrasing. They violate the rights and freedoms of other people, too. They are setting an example for others to follow.
Respondents Nos. 1-3 have acted as a movement to reach their purpose and goals. Even though the speeches on 10 August 2020 have passed, but after the Petitioner (Mr. Nattaporn Toprayoon) submitted his petition to the court, it appeared that Respondents Nos. 1-3 still joined in demonstrations with various individuals and groups. They used the strategies of transforming the kind of demonstration, changing the figures who gave speeches, using the method of not having leaders. The form of the actions by the group of people who share the ideas of Respondents Nos. 1-3 and their related network, are characterized as being a movement that shares the intentions of Respondents Nos. 1-3. They have repeated the actions continuously, with these actions constituting a movement, of agitation and using false information to foment violence and chaos in society.
There are three principles of democracy. They are “freedom”: everyone can say and do anything not prohibited by law; “equality”: everyone is equal; “fraternity”: all individuals are united and support their brothers and sisters. The system of democracy with the king as head of state is one in which the Thai people and the king have been bound together for many hundreds of years. The king is the head of state and therefore receives consent the from Thai people to exercise sovereignty according to the constitution through the parliament, prime minister, and court.
The Thai institution of the monarchy is an important pillar that is essential to rule by democracy with the king as head of state. Therefore, the various actions with the intention to destroy or cause the institution of the monarchy to cease to exist, whether it is speech, writing, or other actions in order to undermining, make insignificant, or weaken the institution, are those with the intention to overthrow the institution of the monarchy.
The exercise of rights and freedoms of Respondents Nos. 1-3 is not in line with the principles of democracy. They only claim rights and freedoms without taking “equality” and “fraternity” into consideration. Respondents Nos. 1-3 exercised their freedom of expression and did not listen to the opinions of other people. They did not accept views that were different and violated the personal rights of other people. They reviled and harassed the personal space of other people. They agitated and incited using facts that distorted reality.
There is clear eyewitness evidence that Respondents Nos. 1-3 have organized groups, organizations and networks to use violence continuously. There are provocative parts of the speeches to stir up violence and create disharmony among the people in the nation. They have destroyed the principles of “equality” and “fraternity” to ultimately overthrow democracy with the king as head of state.
The facts also show that in many demonstrations there was destruction of portraits of the king. There was the removal of the blue sections from the national flag, which means the removal of the institution of the monarchy from the national flag. The ten demands of Respondents Nos. 1-3 would cause the status of the king to not be according to the tradition of rule that the Thai nation has always adhered to and practiced.
The conduct of Respondents Nos. 1-3 on 10 August 2020 and the subsequent continued conduct of Respondents Nos. 1-3 demonstrate that their motivation is the exercise of rights with the ulterior motive to overthrow rule by democracy with the king as head of state. It is not reform. It is the expression of opinion that is not sincere. It is the violation of law. It is motivated by the wish to overthrow rule by democracy with the king as head of state as stipulated in Article 49, paragraph one, of the constitution. Even though the incident according to the petition has passed, Respondents Nos. 1-3 including the group in the form of a network of organizations, still continues the aforementioned acts, and are not far from the overthrow of rule by democracy with the king as head of state.
Upon examining the matter, the view of the Constitutional Court is that the actions of Respondents Nos. 1-3 are the exercise of rights and freedoms to overthrow rule by democracy with the king as head of state according to Article 49, paragraph one, of the constitution. The Constitutional Court orders Respondents Nos. 1-3, including related organizations and networks, to cease the aforementioned actions in the future as well, according to Article 49, paragraph 2, of the constitution.