This year is HM the King’s 84th Birthday, which is the end of the 7th cycle (a cycle lasting 12 years), and it is traditional for there to be a collective royal pardon on such an auspicious occasion. From a report (PDF) by United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders (page 282):

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From a 2009 cable (09BANGKOK2286):

….Also contributing to the six-year gap between executions was the King’s royal amnesty collectively pardoning approximately 28,500 prisoners on the occasion of his 80th birthday in December 2007.
¶10. (C) Many government and civil society members speculate the King will use the occasion of his 84th birthday (December 5, 2011) to issue another collective Royal Pardon xxxxxxxxxxx (Note: An 84th birthday would be an especially auspicious occasion for Buddhists, marking the end of his seventh 12-year life cycle.  End Note.)  xxxxxxxxx Chulalongkorn University professor Suthachai Yimprasert speculated that the King might issue a collective pardon on his birthday this December in order to “make merit.”

BP: As you can see from the list there were ones for the 5th (also HM the King’s 60th birthday) and 6th cycles and for every other major event.  Hence, BP has little doubt that there will be a collective pardon this year. So how does a collective pardon get drafted? From the Corrections Department website:

According to section 261 bis. of the Criminal Procedure Code, the cabinet may submit to his Majesty the King a recommendation for the granting of a pardon.  In so doing, the cabinet will prepare the draft of the royal pardon decree and propose to his Majesty the King for promulgation.  All the procedure is taken by the authority, without requiring any actions of the prisoners.

From the same report from United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders referenced above (at page 281)

Whenever  there  is an important event in the country, such as: to mark their Majesties 60th Anniversary, the Golden Jubilee and so on, the Cabinet may submit a recommendation to His Majesty the King to consider granting the Royal King’s pardon to commemorate these important events. Conditions to which inmates can benefit under the Royal Decree of Pardon are laid down by an adhoc drafting committee. Such a committee is comprised of representatives from various government departments such as: Ministry of Interior, Police Department, Office of the Attorney General, Ministry of Justice, Office of His Majesty’s Principle Private Secretary, Department of Corrections, and so on. Conditions written in each Decree vary from one to another depending upon: situations, crime trends, government penal policy, etc.

BP: So HM the King’s birthday is coming up on December 5 which is in 19 days. Any Royal Decree must come from Cabinet so it will be sometime this month that Cabinet must decide.

Yesterday, there was a story started circulating that the Thai Cabinet discussed the issuance of a Royal Decree for collective pardons. Not sure of the original source, but Matichon reports that Democrat MP Sirichoke Sopha wrote a Facebook Post at 3pm yesterday stating that “Today, there was a secret Cabinet meeting which dismissed all officials from the room and they passed a Royal Decree on Pardons. It is one of the saddest days in Thailand” (…”วันนี้มีครม.มีการประชุมลับ ไล่เจ้าหน้าที่ออกจากห้องหมด และมีการผ่าน พ.ร.ฎ.อภัยโทษ เรียบร้อยแล้ว เป็นวันที่เศร้าที่สุดวันหนึ่งของประเทศไทย”). The article states they telephoned government spokesman Thitima and said that there was no special meeting, but after the meeting was over they asked all officials to leave except three from the PM’s Office and she didn’t know what they spoke about. The article then reports there was a report from the Cabinet meeting started at 9:50 and finished at 11:50, but that there was a secret cabinet meeting after this which lasted 15 minutes for which government officials were asked to leave the room (ได้เริ่มประชุมในเวลา 09.50 น. เนื่องจาก ร.ต.อ.เฉลิม มาสาย และได้ประชุมตามวาระต่างๆ ที่ได้กำหนดไว้ กระทั่งเวลา 11.50 น. จึงเสร็จการประชุมตามวาระที่กำหนด แต่ครม.ได้ประชุมลับกันอีกครั้งโดยใช้เวลาประมาณ 15 นาที ซึ่งการประชุมลับดังกล่าวได้เชิญบรรดาข้าราชการออกจากห้องประชุมทั้งหมดเหลือแค่ครม.เท่านั้น)

Bangkok Post journalist Pradit tweeted “Chalerm presided over the secret meeting and the Cabinet really considered the Royal Decree on Pardons. The Cabinet Ministers were silent when the reporters tried to ask them the conditions of the Royal Decree” (เฉลิม อยู่บำรุงเป็นประะธานวัน ประชุมลับ ครม.พิจราณา พรฎ อภัยโทษกันจริง รัฐมนตรีแต่ละคนปิดปากเงียบ นักข่าวพยายามหาเงื่อนไขใน พรฎ ฉบับนี้). Then again, Daily News stated that reporters asked Ministers after the meeting and many stated that they didn’t discuss this issue [article refers to news about the Royal Decree] in the meeting and this news was not true (แต่ผู้สื่อข่าวได้สอบถามบรรดารัฐมนตรีที่เข้าประชุม หลายคนยืนยันตรงกันว่าไม่ได้มีการหารือถึงเรื่องนี้ในที่ประชุม ข่าวดังกล่าวจึงไม่เป็นความจริง). Other papers mostly report that Ministers have refused to comment when telephoned so make of these conflicting stories of reaction immediately after the meeting what you will….

BP: Didn’t discuss “in the meeting”? Below are a series of tweets from The Nation‘s Tulsathit:

1. The “Cabinet rumor” everyone talks about today involves a clause in last yr’s amnesty royal decree (Abhisit govt)

2. That clause excludes “corruption” convicts from getting amnesty.

3. Therefore, whether the rumor is true or not we should know when the royal decree is out.

4. Sources we’ve checked only deny a royal decree is out. They said different things on whether the matter was discussed in Cabinet.

5. Of course, we are talking about the annual amnesty to celebrate the King’s birthday here.

BP: Last year’s Royal Decree for Royal Pardons had a provision that it applied to those aged over 60 and have a period of imprisonment not exceeding three years –  (Thaksin is 62 and his sentence is only 2 years so Thaksin qualifies). The Bangkok Post:

The cabinet yesterday endorsed a royal decree to seek amnesty for convicts on His Majesty the King’s birthday next month in a move criticised by the opposition as being designed to benefit former prime minister Thaksin Shinawatra.

Government House sources said the decree was raised as an unscheduled item during the weekly cabinet meeting chaired by Deputy Prime Minister Chalerm Yubamrung.

….
If the decree is approved, convicts who are at least 60 years old and are sentenced to under three years in jail will be eligible for the amnesty.

Unlike the 2010 amnesty decree issued by the previous Democrat-led government, the approved draft does not bar convicts prosecuted for corruption from being eligible for the amnesty.

The decree does not require the convicts to partially serve a jail term before being eligible for the amnesty, either.

A minister who asked not to be named confirmed the cabinet discussed requests for an amnesty for 26,000 convicts on the occasion of His Majesty the King’s birthday on Dec 5.

Other ministers declined to elaborate on the issue when they were contacted by phone or approached.

BP: Last year’s decree did not also not require convicts to partially serve a jail term – academic Kaewsan noted last year’s Royal Decree removed the requirement that those released that they needed to have served one third of their sentence (see this post for full details) – but the Bangkok Post story and a few others in the Thai press report that this year’s Decree has removed the exclusion for drug and corruption cases. It is also clear from the Bangkok Post source that this is a Royal Decree on Royal Pardons and not an Amnesty.* If these stories are correct then this is the only change. As noted in this post, BP was not sure whether that part was relevant, but if the exclusion of drug and corruption cases are excluded then well it removes all doubt for sure that Thaksin is excluded.

So did Cabinet discuss the collective royal pardon yesterday? First, Yingluck was conveniently stuck upcountry which as noted in the Bangkok Post she “may have been seeking to avoid accusations of favouring her brother by deliberately being absent from the cabinet meeting” (ie to avoid the conflict of interest issue which may arise if it was to be challenged). Second, while they are only sources, multiple papers report it was discussed. Third, it makes sense it was discussed yesterday as it will need to be drafted and legally checked off before December 5. Hence, think it was very likely discussed, at a minimum, if not approved.

Obviously, one problem for the government is because of the flooding the government will be criticized with being more concerned about Thaksin than helping people as Korn tweeted yesterday “There is flooding. People are troubled, but Cabinet uses the opportunity to pass the Royal Decree on Pardons” (นำ้ท่วม ประชาชนเดือดร้อน แต่ ครม.ฉวยโอกาสไล่เจ้าหน้าที่ออกจากห้อง เพื่อประชุมลับเพื่อผ่าน “พรฎ.อภัยโทษ”). Then, again it is not possible to delay HM the King’s birthday and there will almost certainly be a Royal Decree on Royal Pardons this year (flooding is not helping overcrowding problem either) so any discussion by Cabinet will be while the country is flooded so there is little the government can do to avoid this – aside from changing the criteria so Thaksin doesn’t quality although then they are still discussing Royal Decrees. The alternative is that there are no pardons for anyone this year which given the nature of how the Thai judicial system operates with long sentences and these being reduced and/or people being let free by the benevolence of HM the King means it is unthinkable there will not be…..

Nevertheless, in the short term, the government will face political criticism for being perceived as helping Thaksin at this time, but as anti-Thaksinite Kaewsan and an elected Senator noted in this post, it is the most politically acceptable way for Thaksin to return because it is a collective pardon and not just for Thaksin. Of course, just because Thaksin is eligible, it doesn’t mean he will return although if Thaksin wasn’t returning it would just be easier to change the criteria so he doesn’t qualify. As per previous versions of Royal Decrees, Thaksin has to be in the country on the day the Royal Decree comes into effect to be eligible – see reference to Section 4 in this post – and if the same provision is included this time, he needs to return by *that* date. This means he has to return sometime early next month and then spend a “brief” time being detained before going free. What will the fallout be?

*btw, the correct term is a royal pardon and not an amnesty as BP pointed out to Tulsathit yesterday on twitter. He even wrote about this in 2008 in The Nation:

In short, a royal pardon would be for the Ratchadaphisek land case (imprisonment), whereas an amnesty would be for the party-dissolution case (ban from politics).

BP: While the terms are often not used correctly, an amnesty can include immunity over acts which you have not been convicted and is usually through an Act of parliament whereas a pardon is for acts you have already been convicted of and a collective pardon is done by Royal Decree (ie Cabinet recommends to HM the King/HM the King) hence calling what was discussed yesterday an amnesty is not correct. It is a pardon. A royal amnesty might create a huge fuss as it did in 1992 over whether it is constitutional:

Thai political sources believe that Suchinda made a royal amnesty a condition of his stepping down without a fight. But on Sunday, opposition groups indicated that they would begin a campaign in Parliament today to block the amnesty.

In a rare display of disagreement with Thailand’s monarch, who issued the amnesty decree, the head of the opposition Democratic Party, Chuan Leekpai, said he wants to submit the decree to a constitutional tribunal to determine whether it is valid.

BP: Although, one wonders whether the Democrats would take the same position today….. A Royal Decree on Royal Pardons would be difficult to challenge as Section 191 of the Constitution states “The King has the prerogative to grant a pardon”.