A group of activists and citizen journalists charged with royal defamation show electronic monitoring devices (EM) that they have to wear as a condition for their bail on 22 March 2022. (Photo: Ginger cat)

The price of freedom: Monarchy critics shackled by ‘punitive’ bail conditions

Although it’s now common for royal insult defendants to be freed on bail, their freedom often comes with vague conditions like bans on joining protests that could lead to “chaos” or doing anything that “damages” the monarchy. Experts question whether these conditions may violate the rights to free expression. 

This article is the second part of our series exploring the little-understood and sometimes murky court procedures that decide the fate of those who stand accused of defaming the Royal Family. 

Protesters march in Bangkok on 28 March 2022 to demand the abolition of royal defamation law and resignation of Prime Minister Prayut Chan-o-cha. 

Advocates for reform of the monarchy are finding themselves chained to a recent trend in bail conditions. They may walk free – usually after posting a very large sum of money as bond – but they’re barred from doing many things, and are often not entirely sure what those things are. 

The price of freedom: royal insult suspects forced to spend millions on bail

As a condition for their freedom, many defendants must agree to refrain from “joining activities that potentially damage the monarchy,” “committing any act that may damage or degrade the monarchy and the court,” or “joining any demonstrations that may cause chaos in the country.” 

Critics interviewed for this story say that the conditions, vaguely worded as they are, impose unnecessary burdens on royal defamation suspects and may infringe on their constitutional rights to speak freely and participate in peaceful assemblies. 

“If we’re to speak about principles, the Constitution does not have any room for these [bail] conditions, because it says very clearly that individuals are entitled to freedom of expression,” Puangthong Pawakapan, who teaches political science at Chulalongkorn University, said in an interview. “But in practice, there’s always been an exception.”

Bail conditions that place restrictions on defendant actions and speech to assure that they do nothing deemed offensive to the monarchy, have become a common experience for activists and dissidents charged with royal defamation, which carries a penalty of up to 15 years in prison. 

Insulting or threatening the King, Queen, Heir Apparent or the Regent is prohibited under Article 112 of the Criminal Codes, also known as lese majeste. The law is often applied to any discussion or remark that allegedly portrays the monarchy in a negative light. 

Thailand saw a surge in the use of Article 112 after November 2021, at the height of street protests calling for reform of the monarchy and the ouster of Prime Minister Prayut Chan-o-cha. A legal watchdog group says that some 170 people have been charged with royal defamation as of February 2022.

Some activists were initially denied bail and sent to prison while awaiting trial, sparking a series of protests that culminated in their release. But observers soon noted a pattern in the fine print that came with their freedom. 

Freed but not free? 

In April 2021, lese majeste defendant Patiwat “Mor Lam Bank” Saraiyaem was allowed to post bail provided that he agreed to refrain “from committing further actions against the monarchy similar to the ones that led to his prosecution.” He was also banned from “joining activities that potentially damage the monarchy.”

The court did not elaborate what those actions might be, but similar wording appeared again in the bail conditions for activists Somyot Prueksakasemsuk and Jatupat “Pai” Boonpattararaksa, who were released later the same month. The pair was instructed to refrain from “committing activities that potentially damage the monarchy.” 

The phrase emerged yet again in the bail hearing for protest leader Piyarat “Toto” Chongthep. “The defendant is prohibited from displaying behaviour similar to the action that he stands accused of in this case, including any activities that damage the monarchy,” the court said in its decision to grant him bail. 

Two monarchy reform activists ask a passerby on 31 March 2022 whether they believe taxpayers’ money should be spent on supporting the Royal Family. The man puts a sticker on the “Yes” option. 

It was the same story for Promsorn “Fah” Veerathamjaree, who was released on   the condition that she not “join activities that potentially damage the monarchy.” 

When prominent activist Parit Chiwarak, aka Penguin, was freed on bail by the court in February this year, his bond conditions were extended to include the content of the messages he posts on social media. 

“[Parit] is prohibited from committing any act that may damage or denigrate the monarchy and the court,” the court ordered. “[He] is also prohibited from posting seditious messages on social media, or joining any demonstrations that might cause chaos in the country.” 

Most recently, in the case of Tantawan Tuatulanon, an activist who was arrested for trying to livestream a royal motorcade, bail condition included the social media clause, which was expanded to prohibit her from encouraging other people to join political demonstrations.

Citing court documents, iLaw, a legal monitor group, noted that the defendant was “prohibited from committing any act that may damage the monarchy [and] posting seditious messages, or inviting others on social media to join demonstrations.

Protesters march in Bangkok on 28 March 2022 to demand the abolition of royal defamation law and resignation of Prime Minister Prayut Chan-o-cha. 

Puangthong suspects that such sweeping conditions may be designed as a punishment to make the lives of lese majeste suspects more difficult.

“Although the court has shown a degree of leniency … it’s the same concept, punishing people who criticise the monarchy. Even though they’re granted bail, their release is a type of punishment in itself,” the political scientist said. “Their release comes with conditions that keep getting more complicated. It shows that the court’s mentality hasn’t changed.” 

Reading the crystal ball 

Breaching any of the imposed conditions can have grave consequences, since the court can convene a hearing to rule whether conditions have been violated, and defendants can end up being sent back to prison. 

Due to the vaguely-worded conditions, many activists and campaigners are left unsure of which protests, if any, they can participate in and what they can do or say in public. 

To cite one surreal turn of events, activist Chinnawat “Bright” Chankrachang was hauled before the judges on April 4, because he posted a message on Facebook saying he wanted to meet Princess Bajrakitiyabha, King Vajiralongkorn’s eldest daughter, and ask her whether Article 112 should be abolished. 

Chinnawat was suspected of reneging on his bail conditions, which forbade him from “committing any activity that potentially damages the monarchy.” Although the court eventually ruled that he did not violate the terms of his bail , it did reprimand him for  inappropriate speech.

A monarchy reform activist on 31 March 2022 wears an electronic monitoring device (EM) as a condition for her bail. 

According to a report by Thai Lawyers for Human Rights, police later added a new clause to his bail release conditions, banning him from holding up signs with references to the monarchy along the routes of royal motorcades. The court also warned him that any similar incident in the future would result in his bail being revoked.

When reached for comment, Sorawit Limparangsi, a spokesperson for the Office of the Judiciary, which oversees judicial affairs, declined to give an interview for this story. “The matter of bail deliberation rests with each judge and court, and their individual judgement can not be infringed upon,” his aide quoted him as saying 

A report published by iLaw said Parit, the monarchy reform activist, did attempt to seek clarification from the presiding judge when he learned that his bail conditions included a ban on “joining any demonstrations that might cause chaos in the country.”

The report quoted the judge as saying that the defendant should be able to distinguish what kind of public gathering has the intent to cause chaos or unrest, to which Parit replied that he only participated in gatherings that were peaceful anyway. 

As noted in iLaw’s report on the matter, “there still exists uncertainty about how the conditions that ban defendants from “committing any act that may damage the monarchy” or “joining activities that may cause chaos in the country” will be interpreted, at present and in future political contexts.” 

According to iLaw,  “the court that grants bail retains full authority to interpret the conditions.”

Hardline supporters of the monarchy hold up portraits of King Rama IX during a rally in Bangkok on 13 March 2022. (Photo: Ginger cat)

Sasinan Thamnithinan, a lawyer who has represented a number of royal defamation defendants in court, said she’s relieved to see bail being granted in lese majeste cases more often than in the past. However, she believes defendants are entitled to their legal freedom and their release shouldn’t come with constraints. 

“There shouldn’t have been conditions in the first place. It’s the principle of being innocent until proven guilty,” Sasinan said. “It should be the norm, not the exception.”

Citing Criminal Procedure Codes, the lawyer said there are only several factors for the court to take into account when granting bail, such as whether the defendants would abscond from the trial or interfere with the evidence. 

The possibility of defendants criticising or participating in activities that might damage the monarchy is not a condition listed under the law, Sasinan said. “There’s no such a thing.”

If we can’t jail you…

Puangthong, at Chulalongkorn University, agrees that the current situation for royal defamation cases is an ‘improvement’ on the past, when suspects charged with Article 112 stood little chance of being granted bail.

“Back then, most people didn’t pay attention to it. Most of the defendants in these cases were Red shirt supporters, ordinary people, or pro-Thaksin politicians,” she said, referring to former Prime Minister Thaksin Shinawatra. “The new generation wasn’t  interested in politics yet.” 

After the number of  royal defamation cases surged in late 2020, the public mood  turned, Puangthong said. Many young people were not only aware of  the political situation, but openly critical of how the royal defamation law was being used. Demonstrations to oppose the imprisonment of activists for allegedly insulting the monarchy were held in Bangkok and beyond.

“Unlike the past when Red shirts were charged with 112, the court’s were under  pressure to grant bail.  Before, in almost 100 percent of the cases, bail wasn’t granted,” she said.

Demonstrators stage a protest in Chiang Mai province in 2021 to demand immediate release of activists remanded on charges of royal defamation.

Lawyer Sasinan wonders if restrictive bail conditions are being used by the court to instil a sense of guilt in dissidents, even when freed on bail.

“I think the court may feel challenged by the younger generation. They aren’t as respectful, or fearful, of the court when compared to older people,” Sasinan said. “The court probably sees this and feels that …  its authority is being challenged by young people.”

She thinks the complex bail conditions imposed on monarchy reform advocates may be a  response to their perceived defiance of authority. 

“There’s this insecurity, that the [power of the ] court, or whoever’s up there, is being undermined, so they came up with these conditions, as a way of saying ‘stop acting a punk, or we’ll put you back in jail.’” 

Both Puangthong and Sasinan said the court should put aside political and other considerations and stick to the letter of the law. 

When asked about what solutions should be taken, Puangthong said,“I don’t think there’s any way to fix this situation by relying on the authorities. We can only rely on pressure from the public, which may bring about changes in the long term.” 

“No one likes this [situation] we’re in. The court seems to be playing the role of a strict teacher who’s convinced that it must punish stubborn children,” Sasinan said. “But they must uphold the laws. They must treat everyone with the same standard … the laws are already good, they just need to be enforced equally.” 

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