FOCUS / MONARCHY
With the current political turmoil spawning a spate of lese majeste charges, what can be done to prevent the law from being abused?
By DAVID STRECKFUSS
Has the time come for the lese majeste law in Thailand to be reconsidered? The question is worth asking especially in times of political turmoil like this that inevitably spawns a spate of lese majeste accusations. The question deserves a thoughtful and serious response.
Like many laws, the Thai lese majeste law, as written, may have outlived its original purpose and its use has simply devolved into insensibility. Rather than protecting the prestige of the monarchy, the invoking of the lese majeste law has become a tawdry and naked attempt to use the institution to suppress views that one side or another does not like.
The lese majeste law, as it now stands, is anachronistic. The punishment has steadily climbed throughout the twentieth century; its last infusion made by the coup d'etat government following the bloody suppression of Oct 6, 1976, which increased the punishment to a minimum of three and a maximum of 15 year's imprisonment.
Many such coup orders made by dictators have been brought forward for amendment or revocation. This remnant of dictatorship, unfortunately, has not enjoyed the same fate. Who dares even suggest that it be revised or abolished without fear of being charged with lese majeste? What politician dare enter the legal morass of voting for such a measure?
Adjudication of defamation cases is tricky enough as it is. Defamation cases don't involve ''evidence'' and ''facts'' in a normal way. Separating the line between fact and metaphor, assessing intention and the impact of words _ and assessing criminality from such _ is not something police, prosecutors, or courts are well trained in. In Thailand in the last decade or so, the number of defamation cases has tripled. It has become standard practice for those in power to respond to criticism with a defamation charge.
Lese majeste cases are many times worse. The accusation of the lese majeste laws sets in motion an inexorable mechanism that compels the police to make charges, prosecutors to prosecute and courts to hand down decisions. These parties failing to act can lead to the lese majeste charge being levelled at them. Because of the complex role the monarchy plays in society, and because many Thais have become trigger-happy in making the charge, what constitutes normal debate in other constitutional monarchies is increasingly difficult in Thai society.
Somehow, Thai society has dead-ended itself, unable to go forward or back, unable to even address the extremely problematic nature of this law. Thai society has narrowed its options, leaving a single unavoidable logic of suppression: the law protects the monarchy. Anyone who questions the law must not care about protecting the monarchy. Such a person must be disloyal to the monarchy, and must be suppressed.
But there are other options out there, and here a bit of comparison makes sense.
Japan's abolition of the lese majeste law after World War II resulted in no harm to the institution. A certain amount of debate about various aspects of the monarchy has emerged. But it is always polite.
The Norwegian constitution, promulgated in the early nineteenth century, holds that the ''King's person is sacred; he cannot be censured or accused.'' The Thai 1997 constitution says 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.''
Defaming the King of Norway is a criminal offence, like in Thailand, with a maximum of five year's imprisonment. But when was the last lese majeste case in Norway? Or in Great Britain? Does this mean that Norwegians don't ''love'' their King as much? Does this mean that the British monarchy doesn't have its detractors like www.abolishthemonarchy.co.uk?
No, obviously it doesn't. But the rationale for such British republicans is not defamatory to the queen herself. In the meantime, most British surveyed want to keep their monarchy. Democracy thrives.
So with similar laws, why has the interpretation of such measures in Thailand become so insensible, as it appeared to the legal scholar Jitti Tingsapat in the 1980s? Why did a personal secretary of the King himself predict about the same time that use of lese majeste law would decrease until it was finally abolished? In other words, at a period when, through the sacrifice of many, democracy has made great strides in Thailand, why does this law continue to be evoked?
One need only look at the interview of Sulak Sivaraksa that caused the editor, Thanapol Eawsakul, to be charged with lese majeste. From a ''normal'' perspective, Mr Sulak is suggesting in the interview that all institutions be held accountable, including the monarchy _ a normal condition of democratic governance. What's defamatory to the King himself in that? Where has this hyper-sensitivity to any reference to the monarchy at all become the norm? What's the way out? Various parties can accuse others of lese majeste with impunity. Some interpret the law to mean that there should be no reference to the monarchy at all. Some interpret it to mean that there should be no discussion about what constitutional monarchy should mean.
Whatever the case, there seem to be no real guidelines in place to help guide the police, prosecutors, or courts in determining a possible violation or how to adjudicate a case. Meanwhile, everyone seems to understand that the law tends to be used as a political tool in silencing various groups of individuals in society.
Fortunately, the King has provided part of the answer himself. His December 2005 speech is instructive. Most observers interpreted the King's words to mean that the use of the lese majeste law was troubling to him. Speaking to his subjects, the King said that people saying that ''the King can do no wrong is very much an insult to the King, because why can the King do no wrong, why cannot the King do wrong, because this shows that they regard that the King is not human.''
The King further reasons: ''Suppose if I speak wrongly, because I am not aware, that is another case, but do wrong without realising, and realising that it is wrong. It is not good to do wrong with full awareness but sometimes you do not realise, you must apologise. If you speak without awareness, lack of awareness is not careful, afterwards you will regret.''
The King points out that the accusation of lese majeste impacts the monarchy directly. Talking to Thai society as a whole, the King says, ''If you rule out all criticism as a violation, the damage is done to the King.''
The King goes on to indicate that when people are jailed for lese majeste, he is ''in trouble'' and has to pardon them.
It is difficult to fathom exactly how anyone could make the charge of lese majeste after the King made his position this clear. And yet the accusations fly. In the present political environment, there are those who would attempt to make even a reasonable discussion of the issue _ such as laid out in this article _ a case of lese majeste. When will this end?
Lese majeste as it manifests itself in Thai political society represents a serious threat to the freedom of expression as guaranteed in Section 39 of the 1997 constitution. It inevitably becomes a political tool aimed at suppression of criticism.
As the King suggests, it also tarnishes the reputation of the monarchy when unscrupulous parties _ or maybe even anyone _ decide to level the charge. And yet even to talk about lese majeste impugns the patriotism of the speaker. How can this measure, fortified in the days of dictatorship, be reined in?
A rather simple solution suggests itself. Within Sections 101 and 102 of the Norwegian law code is the standard lese majeste formula: ''Any person who defames the King or the Regent shall be liable to detention or imprisonment for a term not exceeding five years.'' But Section 103 adds the intriguing sentence: ''Prosecution of any defamation pursuant to sections 101 and 102 shall be initiated only by order of the King or with his consent.''
If abolition of the lese majeste law in Thailand seems unimaginable; if the police and prosecutors feel compelled to pursue charges; if Thai society itself cannot show restraint in making the charge despite the apparent displeasure of the King, then maybe the addition of this single clause may set things right. The King has done three remarkable things since December 2005. He has come out as an advocate for freedom of expression in Thailand by opposing the use of lese majeste law. He has invited criticism. And while others called for the King to intervene and fix the political impasse, the King instead pointed out that a more democratic option is available: the courts. What a marvellous addition to the King's contribution.
With the worldwide attention on the King as the longest serving monarch, what a wonderful gift it would be for Thai society to give him or the Privy Council the discretion to take the appropriate measures needed to defend the reputation of the monarchy. Amend Section 112 of the Thai penal code by adding the clause that makes the use of the lese majeste possible ''only by order of the King or with his consent.''
Otherwise, the lese majeste law in Thailand will ever be ready at hand to serve as a weapon in the political arena, always to a detriment to the institution the law intends to protect.
David Streckfuss has a Ph.D. in Southeast Asian History from University of Wisconsin-Madison. His Ph.D. thesis examines the issue of lese majeste and defamation in Thailand.