Less than majestic: the application of Thailand’s royal defamation law

By Craig Keating, Former Senior Analyst, Australia’s Office of National Assessments (ONA)

Thailand’s laws against defaming the monarchy are back in the spotlight amid popular demands to curtail royal privilege. But as former intelligence agency analyst Craig Keating notes, any changes to the lèse majesté system will need the intervention of the king himself.

In January, a 64-year-old former public servant, Anchan Preelert, was sentenced to more than 43 years’ jail – the harshest penalty ever awarded under a draconian royal defamation (lèse majesté) law. Her crime was to share recordings criticising the late King Bhumibol and the then-Crown Prince Vajiralongkorn on social media in 2014 and 2015.

It is almost certain that Anchan will get a royal pardon in due course. And, like most of those charged, she chose to plead guilty – thereby halving her sentence from what would otherwise have been 87 years. But she could still be behind bars longer than some murderers, for whom the typical sentence ranges from five to twenty years.

The case has drawn the world’s attention to what is known formally as Section 112 of Thailand’s Criminal Code, which states “Whoever defames, insults or threatens the King, the Queen, the Heir apparent or the Regent shall be punished with imprisonment of three years to fifteen years.”

Thailand is not alone in having a lèse majesté law. But its penalties are by far the harshest; and many European countries don’t enforce the law. Moreover, in Thailand, the law is applied for each offence, meaning people like Anchan can face sentences of several decades – previously, the longest sentence was 35 years. Further, anyone can file a lèse majesté complaint, which police usually feel duty bound to follow up. Data from the Thai non-government organisation iLaw, updated for the latest rulings, indicates that the mean sentence for those imprisoned on lèse majesté charges since the 2014 coup is eight years and four months.

The ruling in Anchan’s case came in the context of unprecedented calls by youthful Thai protesters to reform the powers of Thailand’s 239-year-old Chakri dynasty, and to reverse King Vajiralongkorn’s steps to revive royal privileges and influence lost when the absolute monarchy was overthrown in a bloodless coup in 1932. Some analysts suspect Anchan’s sentence was meant as a warning to those protesters that the authorities’ patience is limited. They may well be right.

Thailand protests, 2020
Protesters hold up three fingered salutes — a prominent pro-democracy symbol — during marches calling for reform to the government and monarchy, Bangkok, Thailand - August 16, 2020. Image credit: Adirach Toumlamoon, Shutterstock.

Why the prime minister re-instated the law’s use in November is not clear. Last June, he said the king “instructed [him] personally over the past two to three years to refrain from the use of the [lèse majesté] law”: no-one had been charged under the law since 2017. So, on the face of it, Prayuth is defying the king. If true, this would be a remarkable departure from his previous servility. In the past few years, he bent over backwards to accommodate the king, changing laws so Vajiralongkorn can reign from outside Thailand and have direct command over key army units.

Issues with the use of lèse majesté in Thailand

Although the lèse majesté law dates from the time of the absolute monarchy, it was only during the reign of King Vajiralongkorn’s father, the late King Bhumibol, that its punishments really became severe. Authorities increased the term of imprisonment from up to three years to up to fifteen years with a three-year minimum sentence. It is incongruous that Thai officials can claim that their monarchy is uniquely adored and respected by the king’s subjects yet employ the most severe laws to protect the throne from insults by the same people.

It is difficult to believe that the increased penalties did not have palace sanction. It is true that King Bhumibol said in 2005, “… if it is about offending the king, the king is troubled in many ways…. I have followed the way: do not send them to jail, or if they are in jail, release them.” However, in 2010, one of his Privy Councillors criticised the then government, claiming that it was responding too slowly in protecting the monarchy from insults. And in 2011, another of his close aides reportedly said that the lèse majesté law should not be touched. Given their roles, it is unlikely they made these comments without the palace’s knowledge.

Further, during his reign, prosecutors expanded the law’s reach beyond that set by parliament to include:

(a)        other members of the king’s immediate family

(b)       policies of former kings of the Chakri dynasty

(c)        past kings of previous dynasties

(d)       truth being no defence against a defamation charge (as it is in other jurisdictions)

(e)        attempting to commit lèse majesté

(f)        mocking the king’s dog.

Troublingly, this expanded scope only became known retrospectively, after someone had been charged. People have also been selectively jailed for sharing foreign news reports on the Thai royal family, the contents of which were not disputed.

Potential harm to the palace’s reputation

The disparate treatment of those pardoned risks harming the palace’s good name. Why, for example, did one person receive a royal pardon two years after his sentence for comments made at a political rally; but another serve eight years? And why do some at-risk prisoners not get a pardon at all? In 2012, sixty-year-old Ampol Tangnopkul — who was known to be suffering from cancer when arrested in 2011 — died in prison six months into his twenty-year sentence, his plea for a royal pardon had gone unanswered. Only months before, Prayuth (then army chief) had said, “[King Bhumibol] has never asked the authorities to charge anyone and always pardoned convicts in the lèse-majesty cases”.

PM Prayuth Chan-o-chan, 2020
Thai Prime Minister Prayuth Chan-o-cha honours the King's Guard during a procession commemorating their 113th anniversary, Bangkok, Thailand - January 13, 2020. Image credit: SPhotograph, Shutterstock.

Justice delayed is justice denied

Many of those charged are held for years before sentencing – effectively punishing them for a crime of which they have not been found guilty. Anchan had earlier spent three years and nine months in jail as a military court glacially heard the evidence against her. Sirapop Kornarut spent almost five years in detention. He was only released after the United Nations Working Group on Arbitrary Detention called for the Thai Government to immediately release him on the basis that his detention was arbitrary and not meeting international standards. He was finally sentenced last month, to four and a half years’ jail – less than the time he had already spent behind bars.

Untimely deaths and disappearances

Also troubling are the circumstances in which some lèse majesté suspects have disappeared and died when Prayuth headed the post-coup junta-installed government.

In 2015, in a high-profile lèse majesté case, police detained Suriyan Sujaritpolwong, a well-known fortune teller, his aide Jirawong Wattanathewasilp, and Police Major Prakrom Warunprapha. Suriyan’s arrest came as a surprise, as he reportedly had been a close aide to then Crown Prince (now King) Vajiralongkorn for at least eight years. Within one month, two of the suspects had died in custody, in what The Nation newspaper described as questionable circumstances. Prakrom reportedly hanged himself with his prison clothes a few days after his arrest. Weeks later, Suriyan too was dead, reportedly from a blood infection. Authorities denied rumours of torture. Jirawong survived, to be sentenced in 2016, to three and a half years’ jail.

In 2017, the Thai National Security Council chief announced he would go to Laos, with Vientiane’s agreement, to track down self-exiled Thais broadcasting attacks on the monarchy into Thailand. Within six months, one — hardcore United Front for Democracy against Dictatorship ‘red shirt’ leader Wutthipong Kochathammakun — was reportedly abducted by ten Thai-speaking men, never to be seen again. Later that year, another self-exile, Surachai Danwattananusorn, and two of his colleagues disappeared. Surachai had previously served time in Thailand for lèse majesté offences. The corpses of his two colleagues were found in the Mekong River marking the border between Thailand and Laos.

The foreign dimension

In comparison to the stiff sentences handed out to Thais, foreigners have got off lightly – some being granted a royal pardon and deported within a month of sentencing.

Bangkok has had mixed success in prosecuting Thais living abroad. Its approaches to western governments have apparently been rebuffed. But some of Thailand’s neighbours apparently haven’t been so reluctant. Both Vietnam and Malaysia have reportedly turned over lèse majesté suspects to Thai authorities.

Some ultra-royalists have taken it upon themselves to punish Thais living abroad who criticise the monarchy. A retired general, Dr Rienthong Nanna, has been inciting Thais overseas to track them down. Several of those living in Western countries have reportedly been threatened.

Absent the king’s nod, the law is here to stay, for years at least

Despite public calls for change, the law won’t be amended quickly, as there is little political appetite to moderate or change it. Those calling for change tend to get cold feet when in parliament. After the opposition Pheu Thai Party formed government in 2011, it made clear that it wouldn’t reform the law — despite its ‘red shirt’ supporters agitating for its change — and that is still the party’s stance. The head of the Thai Liberal Party had supported amending the law in December, but now says that he won’t raise it. Although Piyabutr Saengkanokkul, co-founder of the now-disbanded Future Forward Party sought to amend the law when an academic — and is doing so again — he let the matter drop when an MP.

Future Forward’s re-incarnation, the Move Forward Party, announced on 10 February that it will propose legislation to reform the law. But it’s almost certainly doomed to fail, as it lacks support from fellow opposition members and government coalition parties. Even nine of its own MPs have refused to sign up.

Much depends on King Vajiralongkorn

With parliament unwilling to act, and a legal system willing to commit people to prison for decades, any move to moderate the lèse majesté law probably rests with King Vajiralongkorn. It is possibly still too early to expect his intervention in Anchan’s case. But the king has the power to rescind harsh sentences, to remind the government and the courts that he does not want the law used, and to pardon people like Anchan, who have already spent years in prison.

Were the king to decide that it was in the monarchy’s interests, he could recommend that parliament bring Thailand’s lèse majesté law into line with those of other modern monarchies. Or, given his interest in reviving pre-1932 practices, he may also wish to restore the old penalty of up to three years jail. The coming year may give us all a better appreciation of his intentions.

Craig Keating is a former senior analyst with Australia’s Office of National Assessments (ONA). Prior to joining ONA, he held numerous positions with the Australian Agency for International Development (AusAID).

Banner image: Adoring crowds display images of King Maha Vajiralongkorn of Thailand while waiting for him to appear at the Grand Palace, Bangkok, Thailand - May 6, 2019. Credit: SPhotograph, Shutterstock.