Updated: Strange decisions II

A reader first alerted us to a brief and very strange report on a lese majeste case at Prachatai that made a “quote of the day“:

“..การที่กฎหมายมิได้บัญญัติว่า พระมหากษัตริย์จะต้องครองราชย์อยู่เท่านั้น ผู้กระทำจึงจะเป็นความผิดตามประมวลกฎหมายอาญา มาตรา 112 แม้จะกระทำต่ออดีตพระมหากษัตริย์ซึ่งสวรรคตไปแล้ว ก็ยังเป็นความผิดตามบทกฎหมายดังกล่าว การหมิ่นประมาทอดีตพระมหากษัตริย์ก็ย่อมกระทบถึงพระมหากษัตริย์องค์ปัจจุบัน ที่ยังคงครองราชย์อยู่..”

We loosely translate this as:

The law [Article 112] does not state that it is applied only to the current reign. Defaming the king can be an offense to a deceased king as the deceased king. Defaming a deceased king has an effect on the current king too….

We were naturally intrigued and assumed that the quote referred to a case in the historical past. However, following the link to the story from which the quote is grabbed takes the reader to a story of a current lese majeste case against a local politician and radio DJ, ณัฐกิตติ์ มฤคินทร์, that was taken to the Supreme Court after a lower court conviction was overturned by the Court of Appeal for defaming a king who has been dead for 145 years. The link from that story is to a Nitirat post.

As PPT was following these links, two English-language stories appeared on the case.  The first is a report of the case, where the Supreme Court’s strange decision is introduced as a “landmark verdict” convicting the man for defaming King Mongkut, “surprising lawyers and academics who have always understood that the law does not cover former kings.”

As background, it should be noted that the case was part of a local political conflict in Chonburi, with the charge made by a political opponent.

The Supreme Court’s verdict surprised legal scholars and practitioners who obviously read the law literally. It says: “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” Any reasonably educated and mentally competent person would not consider that this statement refers to dead kings.

However, as David Streckfuss pointed out several years ago, [the PDF needs a subscription] the law has been stretched considerably.

Indeed, the law or the threat of the law has been used to silence critics and has seemingly been applied to privy councilors and princesses outside the law (see several items here).

In the case before the Supreme Court, it ruled that the 2007 sentencing of the defendant to four years in prison, halved because he pleaded guilty, and suspended for two years, was correct. In its statement, the court appears to determine that lese majeste applies to the whole Chakkri dynasty:

“Even though it was an offence against the deceased king, this is still lèse majesté because defaming the former king can affect the current king,” read the verdict. “As King Mongkut was the great grandfather of the current king, if [the court] narrowly interpreted the law to have it cover only the current king, it would open the door for more offences and defamation against the current king.”

The royalist court added:

“although [King Rama IV] has passed away, Thai people still revere him,” the court ruled. “If there is an insult or defamation against the deceased king, this can hurt the feeling of Thais, which may lead to dissatisfaction and affect the national security of the kingdom.”

What did the defendant say? The Prachatai report states:

By Cactus.man at en.wikipedia [Public domain], from Wikimedia Commons

The problematic speech of the defendant reads “[Speaking of] human dignity, of what we do, if we do it freely with our own thoughts for you people, I’ll go. However, if it would be like [in the era of] King Rama IV, I won’t. That era has ended.” The statement refers to the time before King Rama V abolished slavery in 1905.

The second link at Prachatai, an analysis of the case by lese majeste expert David Streckfuss, says this:

This case begins in 2005 when a failed candidate for some elected position is trying to cheer himself up on a community radio show he hosts. A caller has just asked him how he lost the vote, and the host is, in a rambling way, talking about how it’s good to keep trying despite failures, to remain proud of yourself, and to hold your ideals dear. At one point, he is inveighing himself against would-be adversaries in the name of human dignity. He says:

I refuse. But I refuse, Listeners, because human dignity in anything which we think that we [can do]. If we act [to do something] with freedom, act with free thought, for our brothers and sisters, the people, we [would do it]. But if we must [do it], and [we] must be like [we were] under the fourth reign, we will not [do it], Listeners. That age is gone. But now this land might have some [people who think in this old way]. [There might be] some portion. There is still some portion.

I’ve added some words in brackets to make it a little clearer, but still it is hard to say from this selection or from what he said earlier exactly what he was getting at. What gets him into trouble is his rather oblique reference to King Rama IV: “But if we must [do it], and [we] must be like [we were] under the fourth reign, we will not [do it], Listeners. That age is gone.” [แต่ถ้าเราต้องไป แล้วต้องเป็นเหมือนกับรัชกาลที่ ๔ เราไม่เป็นครับท่าน ยุคนั้นหมดไปแล้ว]

The defendant did not appoint a lawyer and decided that “[t]he best way to quickly end this was to plead guilty.” Interestingly, the defendant is claimed to be a supporter of the Democrat Party and his wife a member of the People’s Alliance for Democracy.

The analysis by Streckfuss is worth reading in full, and we won’t summarize it here. We just highlight a couple of points:

The Supreme Court case made available just a few days ago does much to excite and even more to alarm. The implications of this case are tremendous, and may well mark the low point of the regime of lese majesty in Thailand. At first glance, this case seems like a very bad one that can have devastating, real-life consequences. But reading it more deeply and the case becomes much worse than it first appears.

… Somehow the prosecutors construct their case around the very thin gruel. They claim, and the judges concur, that the defendant’s words imply “that His age [of his royal person, Rama IV] was one in which one had to be a slave, there was no freedom, there was poor governing.”These words—a slander and so ephemeral—were, one would think from the language of the court, earth-shattering, for they were capable of making “the people lose their faith completely, in a manner that is like to bring disrepute and dishonor to, and cause contempt and hatred, of the fourth reign.”

But the defendant didn’t say anything about the person of the king at all. Article 112 forbids anyone to defame the king, queen, or heir-apparent. Here there is no such reference.

Streckfuss notes, the prosecution has taken “a few words [that] are turned into a damning analysis of Thai-style feudalism.” Yet, PPT would add, there is nothing that is inaccurate in the statement about freedom and slavery, and these facts can be found in any history book. Streckfuss concurs:

There were slaves; there were serfs; at least some felt the system was despotic. Is one supposed to assume that any debate about this reign or that reign, or this administration or that, is going to end with this ruling?

And he observes:

It is something of a tribute to historians that the Turkish and Thai governments are so fearful of history. The historical orthodoxy that this Supreme Court decision ostensibly tries to protect is antithetical to democratic values and the spirit of free and equal public inquiry.

We must wonder what historians and other scholars can make of this draconian interpretation of history. Can no scholar state that the current dynasty came to power via a military coup that dethroned another king? Even the semi-official biography of the current king has this story almost right, acknowledging the bloody end to King Taksin at the hand of the new Chakkri rulers.

We already know that any reference to the unusual circumstances of the present king’s brother’s death is cause for a lese majeste charge. But what about the attack on the monarchy by the People’s Party in 1932? Will historians never be able to quote the first proclamation?:

The king maintains his power above the law as before. He appoints court relatives and toadies without merit or knowledge to important positions, without listening to the voice of the people. He allows officials to use the power of their office dishonestly, taking bribes in government construction and purchasing, and seeking profits from changes in the price of money, which squanders the wealth of the country. He elevates those of royal blood (phuak chao) to have special rights more than the people. He governs without principle. The country’s affairs are left to the mercy of fate, as can be seen from the depression of the economy and the hardships of making a living – something the people know all about already.

… The government of the king has treated the people as slaves (some called phrai, some kha) and as animals. It has not considered them as human beings. Therefore, instead of helping the people, rather it farms on the backs of the people. It can be seen that from the taxes that are squeezed from the people, the king carries off many millions for personal use each year….

… You, all of the people, should know that our country belongs to the people – not to the king, as has been deceitfully claimed.

Does the writing of historical truth now become a potential crime? When this king dies, will no serious scholarship of his reign be possible because on the treacle of the reign will be considered appropriate?

While we might consider the strange decision by the Supreme Court to be an indicator of the weakness of the monarchy as it declines, it should be remembered that the judiciary is the palace’s hand maiden, and that many lese majeste decisions have been bizarre, with unconstitutional decisions and decisions where proxy convictions are acceptable. It is all for a reason: the system that the monarchy represents feels under threat, so they do anything to protect it, no matter how bizarre, stupid or strange.

Update: Prachatai has now published a translation of the court’s decision.