Last month, the Supreme Court handed down a ruling about protest speeches referring to past kings. Yet this ruling was not the first time that the Thai courts had ruled that an insult against deceased king still counted as an offence.
Thailand’s draconian royal defamation law has long been controversial in Thai society, not only because of its severe penalty of between 3 and 15 years behind bars, but also because court interpretations have gone beyond ‘the principle of legality,’ by including kings who passed away decades or centuries ago.
Section 112 of the Criminal Code, known as the royal defamation or lèse majesté law, contains only two lines: it begins with “Whoever defames, insults or threatens the King, the Queen, the Heir-Apparent or the Regent, shall be punished…” That is the complete list of persons protected.
The provision aims to protect four people, the current holder these positions. Penalties should not be handed down for actions involving deceased kings as there is no crime and no punishment without a law, the.
Imagine if this interpretation was applied in the UK. The courts would rule that insulting Henry VIII constituted defamation against King Charles III since Henry’s reputation was somehow bound up with Charles and the insult affected the feelings of the people in the country. That's roughly how the Thai courts have argued, more than once.
A pivotal question is what grounds exist for the Thai courts to interpret the royal defamation law beyond its literal meaning.
Prior to the 2020 mass pro-democracy protests, the extended interpretation of the royal defamation law by the courts was not found everywhere.
The very first case to overstep the principle of legality was seen in 2005. Nutchakrit (last name withheld), a host for a community radio program, made a public reference about King Rama IV:
“I was invited to be a member [of a local council], but I refused. Listeners, because of human dignity, in anything that we do, if we do so with liberty, if we do so out of our free thinking, for our brothers and sisters, then we would do it. But if we have to do it, then it is the same as the reign of Rama IV. But that is not the case. That era has ended. But some aspects of that era may remain here, in this country.”
The Court of First Instance found him guilty, and the Supreme Court ruled in 2013 that Section 112 does not stipulate whether or not the king referred to in the statute must be currently reigning at the time of the offence, adding that the king ascends to the throne by the Palace Law of Succession, and the people in the country have been bound to the king through his revered and worshipped status.
If a deceased king was insulted, this may still have repercussions on people’s feelings, and that may lead to dissatisfaction and affect national security.
This ruling later served as an important precedent for royal defamation cases which emerged following the 2020 mass pro-democracy protests.
Royal defamation cases following the 2020 mass protests
Following the 2020 mass protests, there was a drastic surge in royal defamation cases, some of which involved deceased kings.
Last year, Udom was sentenced to prison over seven Facebook posts about the late King Bhumibol. The Court of First Instance dismissed the case, but the Supreme Court found him guilty, concluding that the royal defamation law is a national security-related offence, and that the law is intended to protect the King and the monarchy’s reputation.
The Court cited the constitutional stipulation that the King is revered and shall not be violated. Although the late King had passed away, he remains revered. Defamation against him affected public sentiment and could potentially affect national security.
Mongkhon Thirakot was sentenced to prison over 27 Facebook posts, nine of which referred to the late King Bhumibol. The Supreme Court concluded that the royal defamation law is related to national security according to the Constitution.
The Court stated that the Thai people are attached to the monarchy. Actions such as Mongkhon’s are offensive to the Thai people’s feelings. The Court noted that the law does not specify that only the current king is referenced, and that interpreting it as protecting only the current monarch may allow defamation against deceased kings, which could also affect the current king and national security.
Earlier this year, Wuthiphat (pseudonym) was charged with royal defamation over a comment in a Facebook group, in which he questioned the death penalty handed down to three defendants over the death of King Rama VIII without being found guilty.
The Court of First Instance dismissed the case, but the Supreme Court later sentenced him to prison on the grounds that Thai people are attached to Thai kings, including deceased ones. Also, the defamation against a deceased king affected Thai people’s feelings. If the law excluded deceased kings it would create a loophole, potentially leading to an erosion of the trust the Thai people have placed in the monarchy.
These are three cases involving the deceased kings that reached the Supreme Court. However, there are six other cases in which the defendants were sentenced to prison for defaming past kings.
Jai (pseudonym) was sentenced by the Appeal Court to two years in prison for tweeting a picture of the late King Bhumibol along with the caption “You do not have to remember who I am. Just remember what I did,” which was something said by the late King. The Court stated that her action affected the reigning King Vajiralongkorn, son of the late King.
The Court also stated that her action was deemed adversarial to the King, who holds a revered position.
Parinya, a dissident musician and a member of the protest band Faiyen, was sentenced to six years in prison over three Facebook posts made in 2016. In another post, he shared a news report about an attempted military coup in Turkey in July 2016 and commented that it failed because the country did not have a king to endorse the coup. His last post contained part of a song Parinya said he wrote recently about an “institution” that commits atrocities in the country.
The Appeal Court concluded that the posts contained false accusations against the monarchy and that an insult against King Bhumibol is an insult against his son, King Vajiralongkorn, therefore damaging national security.
Charat was initially acquitted of royal defamation for his Facebook comment criticising late King Bhumibol’s sufficiency economy philosophy. However, the Appeal Court overturned this ruling, sentencing him to prison on the grounds that the sufficiency economy philosophy was initiated by the late King, who is the father of reigning King Vajiralongkorn.
The Appeal Court also cited the argument that Thai people have been attached to their kings, even deceased ones. Also, Thailand holds annual memorial ceremonies for past kings on important dates associated with them. The Court added that the offence affected Thai people’s feelings and could affect national security.
Wirat (pseudonym) was sentenced to nearly eight years in prison over three Facebook posts about the late King Bhumibol and two posts about King Vajiralongkorn. The Appeal Court concluded that defamation against the deceased king affected his successor.
Activist Chukiat Sangwong was sentenced to prison for a protest speech on 6 December 2020 in which he mentioned the murder of King Taksin, a controversial topic in Thai history. King Taksin was the last Thai King before the current Chakri dynasty ascended the throne. While his death remains disputed, there is a historical hypothesis that he was executed by one of his generals, Chao Phraya Chakri, who later made himself the first king of the Chakri line.
In his speech, Chukiat also called for monarchy reform, by questioning the royal budget and the transfer of army units to come under royal personal control. Although he did not mention the names of the kings in his speech, the Court of First Instance concluded that it could be understood that he referred to King Rama I and King Rama IX even though he did not explicitly mention their names.
The Court stated that the current King ascended to the throne through the lineage starting with King Rama I, and the Constitution also states that kings are in a revered position that shall not be violated. In addition, the defendant delivered the speech publicly, which the Court found affected Thai people’s feelings.
Three activists Wanwalee Thammasattaya, Benja Apan, and Kiattichai Tangpornphan were sentenced to prison over speeches referring to King Rama V and King Rama VII. The Court of Instance concluded that the King is the revered head of state and shall not be treated as an adversary. The state and Thai people must preserve the monarchy in its revered and worshipped position.
In addition, the law covers not only the reigning king, but also the succession of kings of the Chakri dynasty which continues to the present days.
Unpacking the courts’ reasoning
In his study, Passakorn Yeenang of Chiang Mai University’s Faculty of Law, proposed that at first glance, it appears to be merely a problem with the interpretation of the wording in the royal defamation law.
In detail, the study reveals a phenomenon that reflects a use of criminal law as a tool to protect the King’s power and his special status. This interpretation significantly downplays the principle of legality in criminal law, subordinating it to national security and the King’s special status.
Thailand’s royal defamation law refers to only four positions: the King, the Queen, the Heir-Apparent and the Regent. However, in many cases, the courts expanded the subject protected by the law to include the “monarchical institution” as a whole.
Passakorn suggests that according to several court rulings, the monarchy is viewed as a central component of historical continuity and national security. Therefore, deceased kings are not considered to have stepped outside the scope of protection under the law, but are rather a part of a historically continuous institution.
The second mechanism the courts use to expand a scope of interpretation is public sentiment. We have seen cases where the courts ruled that a defendant’s action could affect the people’s feelings and their faith in the king and monarchy.
As long as the past kings are still revered, their status as part of the monarchy remains legally relevant, and referring to them in a negative way affects public sentiment toward them.
It turns out that the damage is assessed less by reputational damage, as in ordinary defamation cases, but more in terms of its perceived impact on public sentiment.
For the courts, public sentiment serves as a bridge between past kings and national security. In many cases, such as that Wirat, the courts used the same pattern of argument by concluding that the defendant’s actions affected Thai people’s feelings, potentially leading to dissatisfaction among the general public, and this could affect national security.
Interestingly, the court applied the same approach in the case of Charat in which he merely criticised late King Bhumibol’s sufficiency economy philosophy, concluding that his message could cause the public to lose faith in the late King.
Lastly, the courts establish relations between the current King and past kings through lineage and royal duties. As we have seen in the case of Wirat, the Appeal Court concluded that reigning King Vajiralongkorn succeeded late King Bhumibol through dynastic succession.
Passakorn observed that by using this structure of reasoning, the courts have attempted to construct a conception of the current King’s status as inseparable from that of past kings so that reference to the latter can effectively be treated as reference to the current King.
Underlying conversation in the rulings
Passakorn proposed the existence of three underlying conversations in the court rulings in royal defamation cases.
First, the King’s special status according to Section 6 of the Constitution is invoked in royal defamation cases. Section 6 states that the King is in the position of revered worship and shall not be violated. It becomes a source of legitimacy for the courts to link the King’s special status to royal defamation law.
This first underlying conversation extends legal protection beyond individual kings, the present time, and a strict interpretation of the wording of the provision.
The courts also treat political dissent to a threat to national security. This is explicit in the cases involving speeches delivered at political demonstrations.
In Chukiat’s case, his speech was intended to criticise the state’s exercise of power and the use of the royal defamation law as a tool to restrict freedom of expression. But the court concluded that his speech undermined the King’s reputation and dignity.
The underlying conversation here is that the courts do not unequivocally proclaim that “dissent is a threat to national security,” but the logic of their reasoning implicitly conveys this idea. It enables the courts to avoid confronting the question “what about freedom of expression?” as a perceived threat to national security is treated as outweighing the protection of this right.
Lastly, the courts attempt to shape historical narratives and collective memory. In the case of the speeches of Wanwalee and the other two activists, the defendants argued that the speeches were based on their own views, which differed from those presented in textbooks. However, the Court of First Instance did not accept this explanation.
This shows how the courts turn “narrating the past” into something subject to criminal restrictions. The courts do not explicitly state that they seek to control perceived history, but they use legal terms, such as malicious intent, insult, reputational harm, and national security, to determine to the extent to which references to past kings is unacceptable.
As a result, historical debate, which should be a part of the public sphere in a democracy, gradually fades away.