Some intriguing verdicts on lèse majesté cases in Thailand

 
Lèse majesté cases under Article 112 of the Criminal Code have gained much attention. Hot debates have flared up every time the Court hands down verdicts on such cases and the opinions expressed tend to be highly polarized. 
 
Part of the online debate is harbored to support a notion that “Lèse majesté is a bad law, it should be revoked”. Meanwhile, the other faction would claim that “the law is fine; if you have done nothing wrong; you are not supposed to fear (the law).” Very little effort has been made to draw public attention toward detail of the verdict of each cases and very few genuine critiques have been made over the interpretation of the law.  
 
In the aftermath of the 2014 coup, number of lèse majesté cases are queuing up for court trial. By reviewing previous verdicts made on such cases may help to shed light on problems stemming from the interpretation of the law. It would be useful for those who continue to monitor whether history will repeat itself and how the judicial process in Thailand will evolve over the issue.  
  

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Intent must be key to determining guilt of an accused 

"Intent" is a determinant of criminal liability. Article 59(1) of the Criminal Code goes “A person shall be criminally liable only when such person commits an act intentionally, except in case where the law provides that such person must be liable when commits an act by negligence, or except in case where the law clearly provides that such person must be liable even an act was committed unintentionally”.  
 
As for an offence according to the Article 112 of the Criminal Code, it does not provide that a person who has committed the offence unintentionally or by negligence has to be penalized. Therefore, it is essential that a person can be convicted under this article only when it can be proven that he or she has committed the offence intentionally.  
 
In the case against seller of the book “Kong Chak Pi Sat” (Thai translation of The Devil's Discus) (click here for detail of the case), the Court ruled that content of the book is an offence against the Article 112 of the Criminal Code. However, given that the defendant has insisted on never reading the book, and since the prosecution has failed to prove that the accused had read the book, a benefit of the doubt has gone to the defendant.  
   
It is obvious in the verdict that intent is key to determining guilt of an defendant. Even though the defendant sold a book which content is an offence against lèse majesté law, but since there was no supporting evidence to prove that he might have been aware of the content of the book, it thus has given rise to a doubt of the defendant having really committed the offence. Since it was not possible to prove his intent, the case against him had to be dismissed. 
 
The lèse majesté case against Ibrahim (click here for detail of the case) is another example of how intent of the accused was used in his defense.  
 
A Saudi, Ibrahim was married to a Thai woman and regularly traveled between Thailand and Saudi Arabia. He traded stocks through a broker. In 2009, there was some negative rumor about the monarchy spreading around online media. Ibrahim who usually read news via international media outlets understood that the rumor was a fact, he then posted a message to warn his fellow traders on a webboard.
 
Later, he found out "a fact" was just a rumor, so he posted an apology and went by himself to apologize the webboard administrator. Still, he was arrested and prosecuted.  
 
In the Court, Ibrahim stated how he was loyal to The monarchy. Once, he made journey from his home in Phayao province to Siriraj Hospital in Bangkok to sign a "get well book" for His Majesty the King. He also sent a postcard to His Majesty the King in the occasion of the royal birthday which he later received a letter of acknowledgement from the Bureau of the Royal Household. 
 
Even though Ibrahim insisted that his posting was meant to give a warning to fellow investors and he had no intention to defame, insult or threaten the King, but both, the Court of the First Instance and the Court of Appeals were not convinced that he had no such intention.  
 
Part of the verdict issued by the Court of Appeals goes that, the fact that the defendant claimed in his motion of appeal that he had made a trip and written postcards to express his well wishes to His Majesty indicated that he was aware that His Majesty the King was the Head of the State and shall be respected and inviolable. By posting such a message while knowing it was false, was then an act to defame His Majesty the King.
 
The Court ruled over opinion and mindset.  
 
There are at least two verdicts of lèse majesté cases that the Court adjudicate by taking in to account opinion of individuals.  
 
Part of the verdict issued by the Court of Appeals in the case against “Jeng Dokjik” (click here for detail of the case), can be summarized as follows.  
The Constitution of the Kingdom of Thailand provides that Thailand is ruled by a democratic form of government with the King as Head of the State. The King shall be enthroned in a position of revered worship and shall not be violated. The Thai state and its citizens are strictly obliged to protect the nation, religion, monarchy and the democratic form of government with the King as Head of the State. Not only in the provision of the law but also in the mindset, every Thai citizen holds respect to the Kings since time immemorial.
 
Meanwhile, part of the verdict issued by the Court of Appeals in the case against Ibrahim also goes that; 
 
"Section 2 of the Constitution of the Kingdom of Thailand B.E. 2550 (2007), provides that “Thailand adopts a democratic form of government with the King as Head of the State. Section 8 goes “The King shall be enthroned in a position of revered worship and shall not be violated. Section 70 goes " Every person shall have a duty to uphold the Nation, religions, the King, and the democratic regime of government with the King as Head of the State under this Constitution”. Section 77 goes "The State shall protect and uphold the institution of kingship..." It is clear that according to provisions in the Constitution of the Kingdom of Thailand, His Majesty the King is enthroned as the Head of the State and shall be respected and shall not be violated. The state and its people are obliged to uphold the institution forever. It does not just lie within the law, but also in the mindset of Thailand people, the monarchy shall be revered and held up high over our head all the times since time immemorial. Any verbal abuse or any posting of messages into a computer system which can be tantamount to being an insult or defamatory against His Majesty is an act that no one dares to perform”.  
 
Both verdicts of the Court of Appeals are similar, apart from invoking facts and legal provisions, the Courts even made reference to opinion held by individuals.  
 
An opinion is something personal and it is subject to one’s liberty to think freely. Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) (click here for the text) thus provides that “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice,…”.  
 
Even though Article 4(1) of ICCPR provides for a state party to waive certain of its obligations during the emergency situation, as it provides that; 
 
"1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin”. 
 
But in (2) of the same Article, it provides for Articles in the Covenant which cannot be abrogated in whatever condition including “derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18” which could not be derogated.  
 
In other word, under emergency situation, the state may impose restrictions to limit certain freedoms of its citizens, i.e., the right to freedom of assembly or freedom of expression, but the right to freedom of thought, conscience and religion cannot be derogated in any circumstance. 
 
Thought and opinion are not a crime by itself, as long as it have not transformed into an action (or word) that against the law. Therefore, as law enforcement authority, the Court is obliged to determine guilt by reviewing criminality of an act (or word) and invoking existing legal provisions, instead of making any reference to opinion or mindset since it is something beyond the comprehension of the Court. In addition, opinion and mindset of the Thai citizens is not an essence of the cases and the Court should not have invoked it.  
 
Are the Courts getting adapted to social context? 
 
Whenever the court had the verdict of lèse majesté cases, it usually became subject of criticisms by those who are opposed to the use of the law. There are, however, at least, two verdicts which indicate that the Courts have not completely disengaged themselves from society. It also shows that the Courts are well aware of the implication of the Article 112 of the Criminal Code which shall not be borne by the accused only, but society as a whole. The verdict of the Court of Appeals in the case against Surapak (click here for detail of the case) and the verdict of the Criminal Court in the case against Thitinan (click here for detail of the case) are a good example of how the Courts have adapted themselves.  
 
Surapak was accused of posting five facebook messages found defamatory to the King on different occasions in 2012 (click here for detail of the case). In October 2012, the Court of First Instance acquitted him citing dubious evidence produced by the prosecution. The public prosecutor appealed the case on 26 March 2014, the Court of Appeals concurred with the Lower Court and dismissed the charge against him.  
 
The Court of Appeals’ verdict provides reasons to acquit the accused which can be summarized as follows;  
 
Lèse majesté case is sensitive. A defendant will not only punish by the law but also by social sanction. To convict the defendant based on dubious evidence is not only unjust for the defendant but it will also provoke divisions in the society. In addition, any enforcement of the law which may violate the rule of law may give rise to a decline in loyalty and respect toward the monarchy.  
 
Similarly, the verdict of the case against Thitinan who was accused of defacing the portrait of His Majesty the King, the Court invoked social context when making its adjudication.  
 
In this case, the defendant confessed to committing the offence as alleged, but she did it when she was ill and could not control herself. During the trial, evidence has been given by a medical doctor who has given her the treatment. The Court found the defendant guilty and sentenced her to two years.  
 
But given that the defendant had never been convicted to jail term before and considering that her mental illness could become a major factor contributing to her offence, for the benefit of the defendant and the society as a whole, the Court decided to suspend the imprisonment. 
 
In the verdict, the Court did not specify clearly what “society as a whole” means. But by issuing such a verdict, the Courts treat the cases as public cases and acknowledge that the implication of the verdicts shall not be just borne personally by the defendant, but also by the society as a whole.  
 
These two verdicts may indicate that certain Judges realize that the verdicts of Lèse majesté cases shall render implication not just on the defendants themselves, but also on society at large. Therefore, the writing of verdicts must be done carefully bearing in mind any impact that may affect political schisms in society.  
 
The verdicts above are just a few interesting examples. Apart from these, there are other verdicts which have been elaborated by academics and social activists working on legal issues including the lèse majesté case against a former King (King Mongkut, Rama IV) and the case of “Kenji” who was accused of posting a defoamatory message against the King in the Internet Freedom webboard (click here for detail of the case and an analysis of the verdict), etc.  
 
During the time a number of cases against the Lèse majesté are tried in the Court (click here for detail of the cases to be indicted), and amidst highly polarized political tension, by reviewing interesting verdicts, it may help us monitor the cases with understanding and without biases, and hopefully, it will have led to more constructive debate.