"lese majesty law" What are the problems?

 

By Meechai Ruchuphan

          It has been heard more frequent lately about the Section 112 of Thai Penal Code which is often referred to as “lese majesty law.” Some said it must be repealed for not being democratic, being contrary to the constitution, being an obstruction to freedom of expressing opinions. Some said it should be amended because the penalty imposed is too severe and is likely to breach the human rights principle.

          Different opinions or the attitude to amend the laws is the exercise of legitimate rights of an individual which is arguable. No one can tell whether this is right or wrong.

          But before all of us agreeing, objecting or arguing, it should be made correctly aware what this law is all about so that people who are in power and want to repeal or amend the law can do it right and accountably.

          Because when “laws” are dated or inappropriate for the society or contrast with the feelings of the majority, they could always be repealed or amended.

          The offence according to the Section 112 is often referred to as the offence of “lese majesty”. This could easily be misleading that such the offence is unclear and imprecise because it is ill-defined how the “glory” should be interpreted. It completely depends on how much royal an individual is to the royal institution. A highly royal person may accuse a moderately royal person and, hence, anyone could, by different interpretation, accuse anyone.

          Eventually, such accusation could be used as a political weapon. If the law is actually as such, it should be repealed or amended in haste. The question is if the lese majesty law is actually as such?

          The Section 112 of Thai Penal Code states as follows “Whoever defames, insults, or threatens the King, Queen, Heir-apparent or Regent, shall be punished with imprisonment of three to fifteen years”

          In fact, an offence in this section comprises the three things: defamation, insult, and threatening.

          There is nothing related with the “glory.” In fact, such three acts could lead to an offence if happened to an ordinary person, let alone a monarch who is the head of the country.

          That a person has a fundamental right in speaking or expressing their opinions doesn’t mean that one can speak or express one’s opinion completely freely because rights come with duty. That is the exercise of the rights has to consider the duty to respect other people’s rights too.

          One cannot accuse or insult or threaten someone else and claim that this is the exercise of freedom of speech or opinion.

          For example, a student of one university organises a press conference or issues a statement that his failure in a test is because a teacher has asked him to pay the money otherwise the teacher would fail him. When the student didn’t pay the teacher, the teacher failed the student. If this is not true, the student’s act could be considered a libel. For another example, a student goes before a chancellor, points at him and says “You! Greedy bastard. How much expensive would the credit go? Pay your sympathies to me too.” This could be considered an insult in one’s face. One more example, a student carrying a thick wooden rod waits to see a teacher. Once the student meet the teacher, the student points the rod at the teacher’s face and shouts that you, bastard, if you give me lesser score than the others, I’ll wash my feet with your blood. If the student isn’t yet considered committing any offences, he will definitely be expelled from a university.

          Teachers or scholars may disagree that such behaviour of the student is an honest exercise of his rights and freedom of speech or opinion which should receive protection.

            Some scholars claim that a defamation offence does already exist in the penal code for ordinary people. So why do we need a special penal code for a monarch which implies inequality and is likely to be contrary to the constitution?

            This is such an opinion that needs to make correct understanding. It is fairly acceptable if the opinion is from political scientists, activists or people from any other career apart from lawyers because those people don’t know laws therefore their expressions of opinions are likely to be done without hidden agendas, from other sources or by their own wants or needs which are different depending on each person’s background.

          But if the opinion is from a lawyer, it is questionable if the lawyer is lack of knowledge or tries t
o hide some facts from the people.

          Because the Thai Penal Code provides special protection not only to the King as stated in Section 112, but also to other persons as stated in other Sections as follows.

          Section 133 states that whoever defames, insults, or threatens the King, Queen, Prince Consort, Heir-apparent or Head of Foreign State, shall be punished with imprisonment of one to seven years or a fine from two thousand to fourteen thousand Baht, or both.

            This implies that a king, queen, royal consort or president of any country in the world, no matter if they have relations with us, shall receive special protection.

            No one could accuse, defame or threaten them — be it on websites or in front of an embassy. Such act is considered committing an offence according to Thai law.

          Cursing Obama or Obama’s wife or Gaddafi shall be equally considered committing a crime according to Thai law.

          Section 134 states that whoever defames, insults or threatens a foreign Representative accredited to the Royal Court shall be punished with imprisonment of six months to five years or a fine from one thousand to ten thousand Baht, or both.

          The special protection also extends to all ambassadors who have been appointed to be based in Thailand which is far from their own countries.

          Apart from foreigners, Thais from different walks of life also receive special protection that can be seen in different Sections as follows. Section 136 states that whoever insults the official doing the act according to the function or having done the act according to the function shall be punished with imprisonment of no more than one year or a fine of no more than two thousand Baht, or both.

          Section 198 states that whoever insults the Court or the judge in the trial or adjudication of the case, or obstructs the trial or adjudication of the Court shall be punished with imprisonment of one to seven years or a fine of two to fourteen thousand Baht, or both.

          Despite being short written, one shouldn’t imply that Section 136 means nothing because its protection coverage is very extensive, i.e., from a sub-district headman, village headman, policeman up to a prime minister, member of the House of Representatives, senator. Since an act according to their function is done under a position of an official, therefore the protection extends to insults, not only defamation as that of ordinary people.

          Therefore, it can be seen from several provisions of the Thai Penal Code that protections – more than that provided to ordinary people – are provided to persons of variety status, not only to the King of Thailand.

          The reason that there is a provision providing special protection to the King of Thailand is that the King is an institution under the Constitution and a part of a democratic government with the King as Head of the State. Article 8 of the Constitution states that “the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.”

          It must make it clear that Article 8 of the Constitution is not a new provision. In fact the Section has always been in every Thai constitution since 1932 when Thailand had its very first constitution. For the past 79 years, this provision has changed only one word at the beginning. That is the sentence “the King shall be enthroned in a position…” once didn’t have a word “enthroned” which was introduced in the Constitution 1991. The word doesn’t make any difference anyway.

          If this is not clearly informed, some might think that this Article was only written since the Constitution 2007.

          Since the Constitution certifies the position of the King as revered worship, there must be a legal provision stating what ordinary people should do in which the law specifies no more than “no defamation, insult, or threatening.”

          That is how Section 112 was established and was provided in accordance with the Thai Constitution.

          For ordinary Thais, we shouldn’t do those three acts to a teacher, let alone to the King, no matter if the teacher is a good or bad person, should we?

 

          And if we think of the three institutions – nation, religion, monarch – that bind all Thais together, one may ask why the law provides protection only to the royal institution.

          Such a question is acceptable because when this topic is raised, only Section 112 is mentioned.

          In fact, the Penal Code provides special protection to all 3 institutions.

          As for the nation which is symbolised as the national tricolour flag, the Penal Code provides protection under Section 118 stating that whoever making any act to the flag or any other emblem to be symbolised the State with the intention to deride the Nation shall be punished with i
mprisonment
of no more than two years or a fine of no more than four thousand Baht, or both.

          And not only the Thai nation that receives protection but does also other nations having relations with Thailand as can be seen in Section 135 which states that “whoever do any act to the flag or any other emblem to be symbolised the friendly Foreign State with the intention to deride that State shall be punished with imprisonment of no more than two years or a fine of no more than four thousand Baht.

          As for a religion, the Penal Code states in Section 206 that “whoever does by any means to the object or place of religious worship of any group of persons in the manner that insults such religion shall be punished with imprisonment of one to seven years or a fine of two to fourteen thousand Baht, or both.

          If read carefully, it can be seen that the religion protection doesn’t exclusively provide only to Buddhism which is considered the national religion but also does the protection extend to all other religions that exist.

          Therefore, the Penal Code provides special protection to the three institutions and does not protect only Thai institutions but also institutions of all other countries.

          Some claim that Section 112 imposes the punishment as a criminal offence, not just a civil offence as that in the case of insulting an ordinary person. Therefore it could be used to accuse any one for prosecution. Although this is true,

          but the provisions of the law which provide protection to Head of State, diplomat, government official and Court of Justice, as well as to the Nation and Religion, also impose the punishment as a criminal offence because it is considered that such an offence is done to an institution or to a person of certain position which is considered not a private matter.

          Would you like HM the King to make a complain by himself while HM is always kind to all of his people?

          Wouldn’t this conflict with the principle of the Constitution which states that the King shall be enthroned in a position of revered worship?

          Some claim that such the law is contrary to the principle of freedom in expressing opinions or criticisms. Whoever says that may be unable to distinguish between expressing opinions and defamation, insulting and threatening.

 

          We can use some words and manner with other people without any offence or causing any feeling both to whom we speak with and who overhears the conversation. However, with the very same words, once spoken to another person,
may cause a problem and is considered socially unacceptable. For instance, if we run into a friend who was absent for a couple of days and shout “Oh heck! Where have you been? Thought you were dead!” A friend may give you a grin and big hug and ask you to go hang out. Moreover, the people around you who may overhear your conversation will feel nothing.

          However, with the very same word, if a teacher walks into a classroom after being ill for a few days and there is a student shouting “Oh heck! Where have you been? Thought you were dead!”, the teacher won’t give the student a kind pat and offer him a meal treat. None of the people around who may overhear this conversation will admire this university for encouraging the exercise of rights and freedom.

          Some criticise that the imposed penalty is too severe. When compared with the recent case in which the Court pronounced a sentence for 60 years, such claim looks realistic and reasonable.

          Although the maximum sentence imposed by the law is as severe as 15 years in prison, but the Court has never pronounced a sentence with full punishment. For the claimed case, the sentence was pronounced for several offences including an offence according to the Computer Crime Act B.E. 2550 (2007).

                   Whoever studying laws should be well aware that, if an offence is committed several times, each time is considered one offence – i.e. one count – in which the court will punish for every count.

          A bank manager who defalcate 100 Million Bath from the bank in one time, if no other offence is committed, the court will punish with imprisonment for no more than 3 years. But if a salesclerk in a convenient shop defalcates 1000 Baht every day for 30 days — therefore it is 30,000 Baht in total — a state attorney will consider this the offences of 30 counts. If the court spares his kindness to punish with imprisonment for 1 year for each count, in total the salesclerk will be punished with imprisonment of 30 years.

          Human rights activists may scream that this is not fair. But will the laws teachers suggest an amendment to make it fair in the human rights activists’ view?

          Penalties in the Penal Code are sometimes increased according to the feeling in the society at that time. For instance, once when the number of people stealing Buddha statues to sell to foreigners was increasing, there was an amendment in the Penal Code in the Section regarding burglary in order to increase the punishment to imprisonment of 5 to 15 years and a fine. The imposed punishment is even more severe than that of intentional murder (the maximum punishment of unintentional murder is imprisonment of 3 to 15 years) while the imposed punishment of normal burglary is imprisonment of no more than 3 years.

          It should be emphasised again that the opinion to correct, improve or amend the laws is not strange or wrong in any way. When the world changes, the society changes. The feeling or need, or want of the people in the society changes. All these could always be a factor to initiate changes in laws in order to make the laws aligned with the need or the evolution of the world or society. But the persons who suggest or request the change must tell to the people all the facts about existing laws.

          It is important that one must not take the feelings of other nations into consideration because different nations have different cultures and sensitive issues.

          Thais with black or dark skin being called “Black” or “Dark” may only get angry. But there wouldn’t be any African American feel pleased if he is called “Black” or “Negro”. He would definitely file a case and fight until the case is brought to the Supreme Court. If anyone calls his Prime Minister like that, it would be considered a serious matter and that person may get hunt down and will be more wanted than Bin Laden.

          An American may feel nothing, or even agree with, if someone calls his parents’ names but if this happens in Thailand, there must be someone gets hurt.

          Therefore, the feelings in one society cannot be used to make any judgment in another society.

            Whoever thinking of or campaigning for an amendment in Section 112 should explain to ordinary people that while the current law provides protections to all 3 main institutions – nation, religion, and royal institution – as well as to government officials who act according to the function, why should only the protection to the royal institution be repealed without the mention or touch on the protections provided by Thai Law to the Head or Institution of Foreign State, government officials, the nation and religion?

          Why do other institutions still deserve special protections?

          Why should only the protection to the royal institution, which is stated in the Constitution to be enthroned in a position of revered worship and shall not be violated, be repealed? What are the reasons?

          Or if they want to repeal all the protection – be it the nation, religion, royal institution, government official – then there shouldn’t be any provision in the law giving any special protection at all. This matter should be made clear

          So that the people will correctly understand and be able to correctly express their opinions!! – The End-

 

 

 

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