Thailand: What did Nitirat propose on the lese majeste law?By Saksith Saiyasombut & Siam Voices Jan 17, 2012 7:26PM UTC
By Prach Panchakunathorn
A group of legal scholars who call themselves “Nitirat” have been making headlines on Thai papers in recent months, first with their proposal to nullify the legal effects of the 2006 coup (here), and most recently with their proposal to amend Article 112 of the Criminal Code, a.k.a. the lese majeste law (here).
But what exactly did they propose? Prachatai has a summary of Nitirat’s proposal, which I translate as follows (from (1) to (7)):
(1) Remove Article 112 from the section titled “Crimes Against the Security of the State” in the Criminal Code.
Article 112 of the Criminal Code: “A person who defames, insults, or threatens the King, the Queen, the Heir-Apparent, or the Regent, is liable to a punishment of three to fifteen years’ imprisonment.”
According to Worajet Pakirat (here), a lecturer in Public Law at Thammasat University and a member of the Nitirat group, the reason behind (1) is that lese majeste offences are not severe enough to threaten the survival or security of the state. The mistake of classifying them as crimes against state security, Worajet claims, has had at least two adverse effects. First, courts have passed on severe sentences for lese majeste offences, citing the reason that they are crimes against state security, and hence severe crimes. Secondly, Article 112 being under the state security section means that anyone can bring charges against anyone, which has led to abuse of the law.
(2) Create a new section for offences against the honour of the King, the Queen, the Heir-Apparent, and the Regent.
(3) Separate offences against the honour of the King from offences against the honour of the Queen, the Heir-Apparent, and the Regent.
(4) Change the maximum punishment to two years’ imprisonment for offences against the honour of the King, and one year’s imprisonment for offences against the honour of the Queen, the Heir-Apparent, and the Regent, with no minimum jail term for either categories, but with fines.
The reasoning behind (4), according to Worajet (here), is that the sentence for defaming, insulting or threatening the King, the Queen, the Heir-Apparent, and the Regent, should reflect the sentence for the same offences committed to ordinary citizens. But (4) allows for a slightly more severe punishment (one year more) for offences against the honour of the King because of the added importance of the King as the Head of State.
The purpose of removing the minimum jail terms and introducing the fines, Worajet says, is to allow the court to sentence a person as little as it sees fit. Worajet hopes that “one day when Thailand becomes a true liberal democracy, the court will choose to impose only fines, without a jail term, like in many other democracies”.
(5) Allow “exemption from guilt” for criticisms or opinions honestly expressed to preserve the constitutional monarchy, or to preserve the Constitution, or for academic purposes, or for the benefit of the public.
Worajet argues that the ordinary libel law has a clause specifying the types of opinions that are “exempted from guilt”, but Article 112 has no such clause. This has led to those charged with Article 112 not being able to defend themselves by proving to the court that their opinions were for the benefit of the public or to further democracy.
(6) Allow “exemption from punishment” for expressions of opinions that prove to be true, and the proving of which benefits the public.
I assume that the rationale behind (6) is the same as the rationale behind (5). But one worry about (6) might be that it might lead to defendants seeking to prove their statements about the private life of the King, or the Queen, or the Heir Apparent, or the Regent. However, Worajet says that, since the proving of statements about their private life would not benefit the public, the court could choose not to allow such proving.
(7) Allow only the Office of His Majesty’s Principal Private Secretary (สำนักราชเลขาธิการ) to bring charges.
Clearly, this is to stop the problem that anyone can bring lese majeste charges against anyone, which has led to the law being used as a political or personal weapon.
However, some critics are worried that (7) might lead to the King, the Queen, the Heir-Apparent, and the Regent having to fight legal cases with citizens.
Although I see no reason in principle why the King, the Queen, the Heir-Apparent, and the Regent should not engage in lawsuits themselves (after all, the King of Norway has to authorise any lese majeste charge for it to proceed to the court), I don’t think Nitirat’s proposal really amounts to getting the King, the Queen, the Heir-Apparent, or the Regent to engage in lawsuits themselves.
The Office of His Majesty’s Principal Private Secretary (OHMPPS) is a governmental body: it reports directly to the Prime Minister. According to (7), the OHMPPS can decide whether to file charges without seeking advice from the King/Queen/Heir-Apparent/Regent. So the King/Queen/Heir-Apparent/Regent will have no formal link whatsoever with the lawsuits. (Of course, the OHMPPS might decide to seek advice from the King/Queen/Heir-Apparent/Regent privately. But seeking advice from someone in private about a lawsuit is quite far from engaging him/her publicly in that lawsuit.)
Prach Panchakunathorn is a graduate student in Philosophy at Cambridge University. He received his B.A. in Philosophy, Politics and Economics (PPE) from Oxford University, UK.