Thailand’s Constitutional Court has twice ruled that calling for monarchy reform and amendments to the royal defamation law, Section 112 of the Thai Criminal Code, is treason. On 10 November 2021, it ruled that a number of pro-democracy activists were abusing their constitutional rights and liberties in an attempt to overthrow the democratic regime with the King as the head of state by calling for monarchy reform, including by calling for constitutional amendments regarding the status of the monarch or amendment of the royal defamation law, Section 112 of the Thai Criminal Code. On 31 January 2024, it made the same ruling against the Move Forward Party (MFP) for campaigning to amend the royal defamation law. In both cases, the subjects of the complaints were ordered to stop their activities.

Worachet Pakeerut, lecturer at Thammasat University’s Faculty of Law, questioned how MPs proposing a bill to parliament could be seen as an exercise of their rights and liberties when legislating is part of an MP’s mandate, and argued that the ruling will deter future amendments to the royal defamation law and discussions of monarchy-related issues.

A question of procedure

Worachet Pakeerut (Photo by Kotcharak Kaewsurach)

The complaint against the MFP was filed by conservative lawyer Theerayut Suwankesorn, who had defended for Suwit Thongprasert, a leader of the People’s Democratic Reform Committee and formerly a monk known as Buddha Issara until he was disrobed. Theerayut petitioned the Constitutional Court to rule whether whether Move Forward was attempting to overthrow the democratic regime with the King as the head of state by campaigning to amend the royal defamation law and for the court to order the party to end its campaign.

According to Section 49 of the Constitution, anyone aware of a treason attempt can file a complaint with the Office of the Attorney General (OAG), asking for a petition to be filed with the Constitutional Court for a court order to halt the activities suspected of treason. If the OAG rejects the complaint or does not take action within 15 days, the petitioner may go directly to the Constitutional Court.

In the case of the complaint against the MFP, it was unclear whether the OAG had dismissed the complaint or if it had taken any action. Nevertheless, a complaint was filed with the Constitutional Court, which then asked the OAG if it had done anything regarding the complaint. Worachet noted that, according to the ruling, the Court came to the conclusion that the OAG did not take action within 15 days and so the Court is allowed to take the complaint. However, the ruling did not go into detail about what the OAG did or did not do.

Worachet asked how the Court came to this conclusion. The OAG should investigate treason complaints before it rules whether to forward them to the court, he said, but such a process is likely to take more than 15 days. Meanwhile, the text of Section 49 is unclear, and Worachet asked how it should be interpreted when the text says that a petitioner may go straight to the Constitutional Court if the OAG has not taken action within 15 days. If this means that the OAG must forward a complaint within 15 days, then the Constitution should say so, he said.

Worachet also said that it was incorrect to allow people to go directly to the Court if the OAG does not forward their complaints. For an accusation as serious treason, he said, there needs to be a state organization that conducts an investigation before such a complaint gets to the Court.

Rights and liberties?

When it comes to the ruling itself, Worachet said that the act by MPs of proposing legislation should not be seen as an exercise of their rights and liberties, as part of an MP’s mandate is to propose legislation to parliament. He noted that several Constitutional Court judges said in their individual rulings that proposing amendments to the royal defamation law is not an exercise of individual rights and liberties but is part of the legislative process. It is therefore possible because it is an MP’s duty to propose laws. Although one judge wrote that the Constitution makes no exception for legislation proposals, Worachet said that the question should be whether such proposal is an exercise of rights and liberties. That could be the case if a piece of legislation is proposed by the public, he said, but an MP has been given the legal status and authority to propose laws, and this is subject to check-and-balance mechanisms that already exist.

“This case is not a matter of exercising rights and liberties,” Worachet said. “It would be ridiculous if we were to say that a Cabinet resolution to propose a bill to parliament is a minister’s exercise of their rights and liberties to overthrow the regime. […] People don’t have to study the law to understand that this is not the case.”

However, the Court’s reasoning was that no exception was made in the Constitution for the proposal of  legislation by MPs. Worachet is concerned that the case against the MFP will be used as a precedent for the Court to intercept future legislation regarding the monarchy without allowing it to go through parliamentary process or requiring a prosecutor if a complaint is filed. The ruling could also be used to justify future rulings regarding similar legislation, which would increase the Court’s power in vetting monarchy-related legislations.

“It is the same as not allowing any way for this to be discussed under democratic principles in parliament, which is very wrong, in my opinion,” he said.

In addition to proposing amendments to the royal defamation law, the ruling also deemed other actions by MFP MPs as treason, including bailing out activists charged with royal defamation. However, Worachet questioned how the actions of individual MPs can be taken as the action of a party, noting that the only thing in the campaign which came close to being the party’s collective action was proposing amendments to the royal defamation law as a policy during its election campaign, which had been approved by the Election Commission of Thailand ahead of the campaign. He also noted that the ruling ordered the party to stop its actions, but did not mention the individual MPs. It is therefore unclear whether the Court is also ordering these individuals to stop expressing their opinions.

The royal defamation law and the status of the King

While the Court has ruled that the MFP was attempting to overthrow the democratic regime with the King as the head of state by proposing amendments to the royal defamation law, the Court has never defined what this regime is. Worachet noted that, although the Court discussed the status of the King under Section 6 of the Constitution, it did not discuss in detail the characteristics of the regime.

In line with the case against the monarchy reform activists, the Court seems to say that the status of the King cannot be reduced in this regime, Worachet said, noting the trend over the past few years where the ‘King as the head of state’ part of the regime is becoming more dominant, while democracy is diminishing. Previously, treason complaints are filed against political parties attempting to amend the Constitution on issues regarding political institutions and mechanisms. Now that the focus has shifted to issues regarding the monarchy, the Court is bringing up the status of the King, but has not explained clearly how the King being inviolable is linked to the royal defamation law.

Worachet explained that Section 6 of the Constitution refers to the individual monarch and stipulates that the monarch is held in a revered and inviolable position in the sense that he cannot be sued. This principle comes from the idea that the King can do no wrong because he does nothing by himself, that he only follow proposals made to him. The problem is that the Court is linking the King’s revered status to the monarchy as an institution, which Worachet said is an incorrect expansion of the text. If we are to strictly interpret the Constitution, he said, only the individual monarch is protected from lawsuits, which has nothing to do with royal defamation.

But the Court is now saying that the monarchy is also inviolable, and the royal defamation law exists so no one can violate the monarchy. It therefore has to carry a penalty, and reducing the penalty would reduce the status of the monarchy. Although Worachet said he is unsure how the penalty should be changed, he said that amendments to the royal defamation law can be discussed and that the average person should know that a prison sentence of 15 years is excessive.

“There is nowhere else in the world where [royal defamation] has such a severe penalty, not even in countries which are absolute monarchies,” he said. “The penalty here is probably the highest in the world.”

“Lawful legislative process”?

Activists Tantawan Tuatulanon and Orawan Phupong conducted a poll at an MFP campaign event in Chonburi on 24 March 2023, asking whether the royal defamation law should be amended or repealed. Pita Limjaroenrat's participation in the poll was mentioned in the Constitutional Court's ruling as treasonous. (Photo by Ginger Cat)

The Court ordered the MFP and Pita to end all actions and forms of expression related to repeal of the royal defamation law. It also prohibited any future amendment to the royal defamation law through any means “that are not a lawful legislative process.”

Worachet questioned how it would be unlawful if a group of MPs meeting the number required by the Constitution were to propose a bill to parliament, noting that if the Court wanted to prevent using amendments to the royal defamation law as part of an election campaign, the ruling should say so. Worachet argued that the legislative process begins when a bill is proposed to parliament, not when it’s part of a campaign. The ruling also tried to say what kind of amendment cannot be made, such as saying that Section 112 cannot be moved to another chapter in the Criminal Code because it would reduce the status of the monarchy, but the ruling does not include these interpretations. The ruling should have been clear about what can or cannot be done, Worachet said.

There is also a concern about future impacts of the ruling. Worachet noted how the Court ruled to prohibit future actions since it cannot stop actions that have already been taken, and argued that the law was not intended to be used to prohibit future actions. He also raised concerns that if there is a military coup in the future, these rulings would be included in future constitutions and Section 49 would be expanded, further limiting freedom of expression.

“Their success is that power is now in their hands,” Worachet said.

On 7 August, the Constitutional Court ruled to dissolve the MFP on the grounds that the party had committed treason by campaigning to amend the royal defamation law and banned 11 of its executive board members from politics for 10 years. The Court determined that the treason case against MFP and the petition for its dissolution are not separate matters. Instead, they are the same constitutional case based on the same grounds of action and with the same complainant. It also stated that the Court’s ruling on 31 January must be followed in this case as stipulated in the Constitution.

The 44 MPs who proposed amendments to the royal defamation law are now facing an ethical investigation. If found guilty of a breach of ethics, they could be banned from politics for life.

The regime that cannot be named

MFP supporters at the party headquarters on 7 August, when the Constitutional Court ruled to dissolve the party for committing treason.

In effect, Worachet said, the Court had ruled against any amendment to the royal defamation law. Even moving Section 112 from the chapter on national security is seen as separating the monarchy and national security. The Court also cited quotes from certain individuals who said that the royal defamation law should be repealed if it can’t be amended, but Worachet said that these quotes should be seen as an expression of pent-up frustrations rather than any real intention to commit treason, and citizens should have the right to express how they feel about the law. Such expression has nothing to do with the monarchy; it is about the law for which amendment is still uncertain, and ruling against it would be too limiting.

“The way the Constitutional Court judges think, the way they see the monarchy, is all about exceptions,” Worachet said. “Exception to all principles, exception to all normal logic.”

The state of exception now means removing all monarchy-related issues from discussion, even if the monarchy is part of the Constitution. Worachet said that there would be no provisions in a constitution as long as they are in line with the principle of the King can do no wrong. If there is to be an exception, then the Constitution should say so, such as by giving the King the power to do some things on his own. Worachet admitted that some things have changed since the 2017 Constitution come into effect, and the regime in practice is not exactly in line with what it is called. Although the regime can still be called a democratic regime with the King as the head of state if needed, he said that there is a problem of whether it is still democratic.

“Today, the Constitutional Court is an important player in shaping the meaning of this regime, and the Constitutional Court is focusing on ‘the King as the head of state’,” Worachet said. “The regime might have to be named with the head of state as the basis and democracy as a component. Would it match better? That’s why I say that this regime is a regime that cannot be named.”

The regime could perhaps be named, Worachet said, but to name it accurately comes with a risk. However, he noted that it is clear that the Court’s view of the regime focuses mainly on the status of the King, and that the way the Court explains things in various rulings shows the true colours of this regime.

Although the regime is settled to a degree, he noted that it is not yet stable. More changes could come as members of the monarchy change, he said, noting that he does not believe the ruling was made based on an order. He believes that people in the regime know what they have to do to be rewarded by the regime, which he said rewards those who conform and punishes those who stand by democratic principles.

This regime will weed out any democratic ideology, Worachet said, but there is a change. These issues were not discussed in the past, and no similar treason complaint has previously been filed on issues regarding the monarchy. For him, this could mean a wider dissemination of information, but more work is still needed for change. It will take time, more than a single generation. When he was younger, Worachet said, he once thought he would see change in his time. Now, the work could be more difficult, but even so, people should not abandon their beliefs. He said that it was because there is a movement that a mechanism has to be implemented to take care of it. At the same time, there is more awareness in the society, not just among MFP supporters.

“Right now, the problem is that Section 112 has been tied to Section 6 [of the Constitution],” Worachet said. “Right now, Section 6 itself has a revered status. This law is an untouchable law. When the Constitutional Court says that Section 112 and Section 6 are tied, [Section 112] almost becomes untouchable as well, which is not how things should be, but now it is turning out that way.”