The new way of interpreting “Article 112” which had dismissal verdicts all year 2018

 

 
 
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The charge “ Insulting or Defaming the Monarchy” according to Article 112 of the Criminal Code is the most severe charge of Thai society, particularly in the period of the National Council for Peace and Order (NCPO). Citizens at least 95 people were arrested and prosecuted by the military. Some of them were prosecuted in the military court and experienced 10-year imprisonment per count. This phenomenon had happened since 2007 and carried on for approximately 10 years. 
 
 
The terrifying issue of “ Article 112 ” also known as the Lèse majesté partly results from the legal provision itself that could be widely interpreted. However, another factor comes from political situation that the Lèse majesté was utilized to eliminate many political rivals, especially the higher conflict of political situation, the greater number of prosecuted individuals.
 
 
Article 112 of the Criminal Code would use to prosecute the manner which defames, insults, or threatens all four people including of the King, the Queen, the Heir-apparent, or the Regent. However, the verdicts in several Lèse majesté cases decided to punish some opinion expressions that presented in a metaphor manner, not mentioning any name, or using alias instead. The Court could widely interpret words and content by attempting to relate with the four people who are protected by the law such as the case of Somyot, the case of Yosawaris, the case of a play “The Wolf Bride”, and etc. Furthermore, some cases were widely interpreted until the interpretation was able to accuse of a person who satirized a royal dog, or even citing about the King Rama IV was counted as guilty.
 
 
In the period that mention to the Royal Institution was highly sensitive, the state authorities of the judicial administration and the judges reacted unusually. In many cases, certain defendants were charged under Article 112 and attempted to fight by claiming that their speeches were not within the scope of offence. It was hardly possible to win the case because the principle of the Criminal Code interpretation must be narrowly interpreted so as to protect people’s liberty and rights which this principle was hardly used with Lèse majesté cases.  
 
 
However, the way of wide interpretation experienced a significant change like “ turned the table ” throughout year 2018.
 
 
The sign of significant change of interpretation for the first time happened in the case of Suluk Sivaraksa, who was accused of critically discussing at a public forum about history of King Naraesuan period or also known as “ the case of defaming King Naraesuan” which was likely to be extremely  wide interpretation of Article 112 that covered until the Ayutthaya period as well. On the other hand, on 17 January 2018, a  military prosecutor did not prosecute by giving a reason that there was no sufficient evidence.
 
 
The following case that society paid much attention was the case of Nurahayati, a blind woman, who was sentenced for 1 year and 6 months imprisonment by the Yala Provincial Court. Due to sharing an article on her Facebook page, she was brought to the court, and then she confessed. Therefore, her punishment was reduced to the least severe punishment as possible for this case. However, this case was famous just for a short time. On 23 January 2018, a lawyer revealed that Nurahayati was released. A court official called her family to pick her up without knowing who bailed her out or how much money for the bail, but later on, she was prosecuted under the Computer Crime Act only. 
Afterward, the sign of huge change has become more obvious on February when the Office of the Attorney General imposed the practice of Article 112 that the attorney general needed to inquire all Lèse majesté cases in order to be more careful and secure.
 
In 2018 according to data, the Court sentenced the Lèse majesté cases at least 7 cases which all of them were dismissed. 
 
1. Thanat or “Tom Dundee” made a speech at Lampoon Province.
 
 
Thanat or Tom was a former singer, imprisoned since 2014, and was prosecuted according to Article 112 which included all four cases. For the first two cases, the Court sentenced imprisonment for 10 years and 10 months. Moreover, for another case, he was prosecuted as making statement during a Red Shirt political rally at the Chatuchak Market, Muang District Lamphun Province. In 2011, Thanat confessed all charges, and the Criminal Court read verdict on 29 January 2018 that the case was dismissed as according to the plaintiff’s averment, it did not clearly appear that the defendant’s statement was within the scope of offence.
 
 
2. Tom Dundee gave speeches at Ratchaburi Province
 
 
Another case of Thanat or “Tom Dundee” during a Red Shirt political rally, at the Khao Kaen Chan commemorative park, Ratchaburi Province, in 2010. Thanat confessed all charges as well, and the Ratchaburi Provincial Court read verdict on 29 June 2018. The Court considered that the action of defendant according to the plaintiff’s averment was not clear enough to hear that the defendant’s speech was within the scope of the offence. The defendant had confessed; thus, the Court must dismiss the charge, according to Article 185 in paragraph 1 of the Criminal Court Procedure.
 
 
On the other hand, After the Court had dismissed the two cases of Thanat in this year, Thanat is still imprisoned at the Bangkok Remand Prison according to the verdict of Lèse majesté cases which were previously dismissed.
 
 
3. Prawate : a lawyer posted messages on Facebook.
 
 
Prawate had been a human right lawyer for clients accused of violating Article 112 (Lèse majesté) before he became a defendant himself, due to posting messages on Facebook. He was accused of posting messages, which he committed 10 counts under Lèse majesté charge and 3 counts under Article 116 of the Sedition charge. The way that Prawate defended his case was to deny all court's procedures. For example, he rejected to testify, cross-examine plaintiff’s witnesses, find defendant’s witnesses for proving his innocence, and sign all documents. Meanwhile, the Court did not allow to bail him out and chose to hold trial in secret. On 27 June 2018, the Criminal Court read verdict that Prawate was guilty according to Article 116 of the Criminal Code for three counts, five-month imprisonment per count which totally included 15 months, and another one-month imprisonment for not providing fingerprint. He was detained in prison 16 months in total. However, it did not appear that the court mentioned about the offence according to Article 112 of the Criminal Code during the verdict announcement.
 
 
4.  "K" : Sells coins after the King passed away on Facebook
 
 
“ K ” was an alias of one teenager in Chonburi Province, who posted a picture of many coins for selling them at the same price, after the death of the King Rama. His action prompted anger to many people, so there was a group of people invading to his residence as well as attacking him, and this story became the talk of the town. Later on, “K” was prosecuted under the Lèse majesté charge and the Computer Crime Act for selling coins on Facebook. Afterward, on 5 July 2018, the Chonburi Provincial Court dismissed Lèse majesté charge but still sentenced 8-month imprisonment as entering false information into the computer system according to the offence of the Computer Crime Act.  The Chonburi Provincial Court explained reasons for dismissing the Lèse majesté charge that during his reign, His Majesty King Bhumibol Adulyadej had dedicated himself to improving Thai people’s lives. His Majesty was intelligent as well as all-rounded and also had proper behavior. His Majesty had reigned with the ten Royal Virtues of King, the Ruler’s bases of Sympathy, and duties of a Universal King. Also, His Majesty was full of overwhelming virtues and was praised all around since the day that His Majesty reigned until now. His Majesty’s Horner and respect as well as love of Thai people toward His Majesty thus did not depend on the value of coins, no matter how much value of the coins.
 
 
5. A group of teenagers burned commemorative arches
 
 
In 2017, a group of teenagers including of 8 teenagers as well as an adult, 9 people in total, was arrested due to burning commemorative arches in many districts, in Khon Kaen Province. All of them were prosecuted at least 3 cases such as being members of a Secret Society, burning and causing damage to properties, and Lèse majesté  charge as well. Because of burning commemorative arches in different areas, each defendant was prosecuted with uneven charges. All defendants confessed, so the Court sentenced that each one received uneven punishment which they would be imprisoned between 2 years and 6 months to six years and 6 months. Later on, some defendants appealed to the Court.
On 18 September 2018, the Appeal Court read verdict that although six defendants had confessed, considering from the plaintiff’s averment, it could be seen clearly that defendants determined to cause damage to the property such as the arch. However, it did not appear that there was an intention to commit a crime under the Lèse majesté charge. Therefore, the Court dismissed Lèse majesté charge but sentenced for being member of secrete society and burning property instead which had less severe punishment. 
 
 
6. Sagun stated in prison.
 
 
Sagun was a prisoner who had prepared to set fire during a red-shirt political rally. However, after he had received punishment, he was suddenly prosecuted under Lèse majesté charge. He was prosecuted at least three counts from stating three times while being imprisoned at the Bangkok Remand Prison. There was an ex-prisoner as a witness. Sagun said that he was slandered by the prisoner who felt dissatisfied with him because he became a warder’s helper. Nevertheless, later on, he confessed. On 24 November 2018, the Criminal Court dismissed the charge because messages, which a public prosecutor identified that the defendant had said in prison, needed to be interpreted and the messages did not obviously identify who was mentioned.   
 
 
7. Anan alluded to Her Royal Highness Princess Maha Chakri Sirindhorn.
 
 
Anan, 70 years old man, was accused of alluding to Her Royal Highness Princess Maha Chakri Sirindhorn and Her Royal Highness Princess Soamsawali since 2012. The case had remained on the process of investigation, but in the NCPO period, the case was in progress. Previously, the Criminal Court dismissed the Lèse majesté  charge because it was not defamation toward persons protected by law, but the Court sentenced defamation charge according to Article 326 of the Criminal Code instead. Furthermore, it still had issue about legal provision that if it was the offence of defamation toward general people, a plaintiff had to complaint and prosecute by himself. Later on, the Appeal Court reversed a judgment by dismissing all charges.  
 
 
Reading the Supreme Court’s verdict on 27 December 2018, the Supreme Court sentenced that the defendant had guilty according to the previous verdict and was sentenced 1 year imprisonment per count, 2 years imprisonment in total, but he still was on probation for 3 years and fined 20,000 Baht per count, 40,000 Baht in total.
 
 
Based on judicial discretion, the action of defendant according to plaintiff’s averment was in the scope of offence or not. If it was not within the scope of offence, despite the defendant having confessed, the Court could dismiss the charge. It was an exercise of power according to the legitimacy. However, for most cases, if defendants confessed, it will not use this kind of judicial discretion, especially the Lèse majesté charge, before year 2018. Usually, the Court widely interpreted content, and many Courts based on judicial discretion to dismiss the Lèse majesté charge even though defendants confessed. Thus, it seemed to be a surprising phenomenon. 
 
 
However, in many cases such as the case of Prawate, the case of “K”, and the case of Anun, when the Court dismissed the Lèse majesté charges, the Court sentenced them for other charges instead which the Court still widely interpreted the legal provision so as to punish defendants. For some cases, defendants have right to appeal, and in terms of law, it was still be a concerning topic that should be frequently brought up to debate further.
 
 
The phenomenon of interpreting the Lèse majesté law significantly changed which provided benefit for defendants throughout year 2018. If it was changed for maintaining the legal principle by the Courts and officers working in the judicial process, it was a positive sign. However, if it was phenomenon, depending on political situations more than the code of law, we still have to closely keep an eye on it. By 2018, the trend has changed, and whether it could experience further changes in the following years. 

 

 

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