The misuse of the King’s inviolability under Section 6 of the Constitution in royal defamation cases against pro-democracy activists has raised concerns about the erosion of the freedoms enshrined in the Constitution.

The pro-democracy protests of 2019–2020 continue to have consequences today. Anon Nampa, a protest leader and human rights lawyer, is currently imprisoned facing multiple royal defamation charges.

In the cases against him and other protesters, an unprecedented trend has emerged. The judicial authorities have linked Section 112 of the Criminal Code, the royal defamation law, with Section 6 of the Constitution, thereby effectively denying dissidents the right to a fair trial.

For instance, in the case against Anon for the Harry Potter-themed protest, the court invoked Section 6 to deny a defence request to summon documents—including King Rama X’s travel itinerary and budget allocations related to the monarchy—as evidence to validate the criticism.

Section 6 has also been used to justify prison sentences in similar cases, including the prosecution of those involved in the rally to submit letters to King Rama X and those who criticized the King’s administrative actions.

Section 6 of the Constitution states “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.” Under a minimal interpretation, legitimate criticism—let alone the summoning of documents—does not constitute “accusation or action” or a violation of a “position of revered worship.”

Somchai Preechasilpakul

Prominent jurist Assoc Prof Somchai Preechasilpakul of Chiang Mai University's Faculty of Law argues that the broad interpretation of this section is a dangerous development that will intensify calls for judicial reform.

"It’s been made to mean that we cannot speak about, express opinions on, or take any stance toward the monarchy in any way that is at all negative, which I believe is very dangerous,” said Somchai. “It is an interpretation or gives a meaning that I think is a distortion from an understanding or a distortion from what it should be."

Can’t be sued

The King’s inviolability was introduced to Thailand after the 1932 revolution by Khana Ratsadon to position the monarchy above politics following the end of absolute rule. Since power is exercised by the executive, legislative, and judicial branches, the King cannot be held accountable for the government's actions. Thus, the principle holds that “the King can do no wrong.”

Under a constitutional monarchy, the King cannot act unilaterally. Any government action signed by the King must be countersigned by the responsible officials. In the early years following the revolution, the scope of the King’s inviolability was quite limited. While the King cannot be held accountable for government policies, he could still be sued for personal actions.

“There was a lawsuit,” said Somchai. “The government sued King Rama VII, and there was a ruling that came out in 1939.

“In this case, the Ministry of Finance, the plaintiff, sued King Prajadhipok [Rama VII] as the first defendant and Queen Rambhai Barni as the second defendant, [alleging] that King Rama VII transferred the crown’s assets to his personal property – which the court of first instance later dismissed. But the appellate court, after consideration, ruled to seize or freeze all of the defendants' assets pending the final judgment. Ultimately, there was a ruling in 1941 in which King Prajadhipok lost the case and had to return over 6 million baht to the Privy Purse.

Khana Ratsadorn sought to establish a constitutional monarchy, which required that crown assets personally possessed by the king under the absolute monarchy be transferred to civilian control. King Prajadhipok acted in defiance, resulting in the legal defeat. However, Khana Ratsadorn ultimately lost power in the late 1940s. Under conservative rule, the constitutional provision on the king’s inviolability was expanded.

*Once the lawsuit took place, I understood that the 1949 Constitution was later rewritten [regarding the King’s inviolability] and it became the foundation for subsequent constitutions. When drafting the 1949 Constitution, in addition to stating that the King shall be enthroned in a position of revered worship and shall not be violated, it was also added that no person shall expose the King to any sort of accusation or action. This became the model for the protection of the monarchy, and it has continued in this way. There might be some variations. Some versions separate it into two sections, while others combine it into one,” said Somchai.

In Somchai’s view, Section 6 in its current form means, first, that the King holds a position of revered worship, and second, that no one can file a direct lawsuit against the King. In civil matters, the legal process would involve suing the Crown Property Bureau. In criminal matters, if someone is harmed by the actions of the monarch, they may need to submit a written request or apply social pressure for compensation.

While suing the monarch for government actions is out of the question, on more personal matters “I think it might be debatable,” said Somchai.

“Because when this article was written, some people asked, suppose that the King killed someone, would he be held unaccountable? Those who support this article said yes. The principle must be that way. Because it is considered that a king holds the status as a head of state, so deserves special protection. Suppose that such an act were actually to occur, they said that it would have to be a matter of social power or social pressure to hold the person accountable for their wrongdoings,"

In response to claims supporting legal immunity, Somchai said, “I’m still not quite sure that if we were to remove the question of lawsuits, we would need to clearly distinguish what is actionable. For example, if it is an act that intentionally causes criminal damage, I think there should still be some form of accountability, right?”

Under the reign of King Rama X, this problem has become even more complicated, as the boundary between the King’s personal and political life has been constantly undermined.

Under Prime Minister Gen Prayut Chan-o-cha, the 2017 Royal Command on the Organization and Management of the Royal Household Affairs Act and the 2017 Royal Decree on the Organization and Personnel Management of the Royal Household Affairs were enacted, allowing the promotion, demotion, dismissal, and transfer of civil servants within the Royal Household to be carried out at the King's discretion without requiring a countersignature.

For Somchai, the law allows this, but it can be debated whether is it appropriate.

"If you specifically ask about promotions, demotions, dismissals, and transfers where there is no person countersigning, I think this is different from many cases,” said Somchai

“For example, when a coup happens and a peacekeeper [junta leader] is appointed or endorsed, that is a type of action where there is no legal basis. But if it is compared with the demotion, dismissal, and transfer [of Royal Household civil servants], this has a legal basis. This means that what we see as frequent reductions, dismissals, and transfers has a legal basis.

“The problem is that the law allows for this kind of action. Making many government agencies become part of the Royal Household, or even the question of how the Royal Household should have a system of promotions, demotions, and transfers, and to what extent it should be at the royal discretion, is another matter that needs to be debated."

Erosion of Freedom

While Section 6 established that the monarch cannot be sued, exposure to criticism is an entirely different matter.

"If we interpret the provision of this section in conformity with the democratic system, it means that the public may not sue the monarch. I believe this is the essential meaning. It does not mean that we cannot talk about the monarch or express critical opinions, because in addition to Article 6, the Constitution also guarantees what it calls freedom of expression in Section 34, which means that both the inviolable status and the people’s freedom of expression are both value principles at the constitutional level.

"In principle, one value cannot be used to destroy another value. Suppose we say that we use the inviolable status of the monarch to suppress everyone who speaks negatively about the monarch. If it was like this, it would show that this is the destruction of the so-called freedom of expression. Therefore, this cannot be done.

"To put it simply, the people have freedom of expression, but the kind of freedom of expression that would overthrow the monarchy cannot exercised. At the same time, the monarchy must respect freedom of expression.

“If there are going to be people who express critical opinions, not insults, but express critical opinions with information, that is allowed because it is freedom of expression. Therefore, these two parts must go together. This is not to say that the monarchy is suddenly held in a status that can be violated. It means that not being able to talk about it at all, not being able to touch it at all, would probably, I believe, be a meaning far removed from constitutional principles.”

Somchai argues that Anon’s request for documents was unrelated to Section 6, as he merely sought to present supporting evidence. Preventing a defendant from mounting a defence is a major concern. The court should have reviewed the documents instead of pre-emptively deeming the request a violation—an interpretation Somchai sees as overly broad.

The court's frequent use of Section 6 in royal defamation indictments is also problematic. Somchai suggests that defendants petition the Constitutional Court to determine whether courts have the authority to interpret Section 6.

"Section 6 has been constantly expanded, especially in disputes where many people are accused of violating Section 112. In every case, the indictment begins with something like 'Thailand is a democratic system of government with the monarch as head of state. As guaranteed by Section 6, the King is held in inviolable status.' After that, it may explain that what the defendant has done, if it involves to the monarchy, will be considered a breach of Section 6, without considering other factors. I think this is a problem in that Section 6 is being combined with Section 112, which in many cases leads to a broadening of Section 112."

Section 112 says “Whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.”

The expanding scope of prosecution is concerning. In a 2022 case, a defendant received a suspended two-year sentence for criticizing the late King Rama IX's sufficiency economy philosophy, as it was seen as enabling criticism of the current King. Similar cases involving past monarchs were dismissed, underscoring the law's ambiguity and its chilling effect.

Somchai also cited the case of Nurat, who was accused by authorities of mocking HRH Princess Chulabhorn through her attire. The court dismissed the case, and Somchai agreed with the verdict, since HRH had never been formally declared the heir apparent. However, this represents a dangerous trend.

"Actually, in recent political cases related to Section 112 and Section 6 of the Constitution, for those who have been following this issue, we would have seen that Thailand's judicial powers have not taken their role in the way we quite understand. Thailand’s judicial powers have instead become part of the effort to protect traditional hegemony in Thai society.

“If the judicial powers base themselves on neutral principles, and consider various matters according to professional principles or the principles of democratic systems, many issues would not need to become cases for the courts to waste time on adjudicating them. Many issues are clearly nonsense, but it turns out that they make it to court. Once they make it to court, we can easily predict how it is going to be. But what’s going to be does not align much with the principles. We've seen this situation continue for years.”

Cause for Judicial Reform

By finding myriad excuses to serve elite rule, Somchai believes the judiciary is sowing division and further alienating itself from society.

“What the courts are using as principles for their verdicts are principles that are primarily from the judiciary. However, politically in a democratic system and professionally, they are things that can’t go together at all. As a result, the approach to verdicts that places Thai jurisprudence under the monarchy holds power only within the spaces where the court is involved—in courtrooms, in correctional facilities, or whatever. But in other spaces beyond this, it is not like that. It means that what the court decides is not consistent with professional principles and general understanding, and is not in line with the values of a democratic system. It means that Thailand’s judicial powers are going to have problems with the existing political system.”

This, in Somchai’s view, will only intensify pressure for reform.

"Court rulings, in one way, can help prevent political crises, constitutional crises or political difficulties of Thai society from becoming more serious if they follow accepted principles. But if the judicial powers don’t follow principles or lack neutrality, it will aggravate problems to become more violent. Today, we have seen a decline or a collapse in the confidence in and the legitimacy of many institutions, and the judicial authorities are one of them. If the judicial authorities do not uphold themselves to follow the right path, we will in the future certainly see a far-reaching and deep reform of the judicial authorities come to pass”.