Events in the last couple of days remind us of the words given by His Majesty the King on 4 December 2005, remembered as the "The King can do wrong" speech.

On 8 October 2007, it was reported that more than 60 members of National Legislative Assembly (NLA) led by Mr. Pornpetch Wichitchonchai signed a motion for amendments of two laws, and the motion was tabled for deliberation today (10 October).

In essence, an amendment was proposed to Section 112 of the Penal Code concerning the defaming, insulting or threatening of the King, Queen, Heir-apparent, or Regent. The proposed Section 112/2 would expand this protection to cover Privy Councillors and a breach of the law would result in a maximum imprisonment of five years and fine of one hundred thousand baht.

Another amendment proposed adding to Section 14 of the Criminal Procedure Code the clause: "Whilst holding an investigation, preliminary examination or trial concerning offences committed against the King, Queen, Heir-apparent, or Regent as per Chapter 1, Title 1, Book 2 of the Penal Code, if deemed appropriate, the investigating officer, public prosecutor or a party to the case may request the Court to order the prohibition of publication of facts, details, comments, criticisms or any opinions expressed in relation to the case, in whatsoever media." A violation of this Section results not just in the maximum imprisonment of three years and fine of sixty thousand baht, but is also considered a breach of a court order which shall be penalized according to the Civil Procedure Code.

Backing off

However on the afternoon of 9 October 2007, Mr. Pornpetch Wichitchonchai, the NLA member who proposed the amendments, told the press that he had decided to withdraw the motion abruptly. "I was informed that this news caused concern among some Privy Councillors. They had a meeting among them and informed me later that they felt concerned about this extra protection even though they knew this motion was proposed by the NLA in good faith. Therefore, I have informed the whip and withdrawn the motion", said the NLA member.

Even though the attempt to change the laws has stalled, the smoke is yet to clear. This recent move raises questions as to their ulterior motives to propose so many new laws and amendments and whether or not it is justified to plan to undertake this massive revision of the law.

Mr. Gothom Arya, an NLA member who did not sign in support of the amendment motion, traces this attempt to seek amendments of the Penal Code and the Criminal Procedure Code to one of the four reasons cited by the Council for Democratic Reform (CDR) when they took power. They stated that their coup was made as there had been attempts to defame the monarch. Perhaps, some NLA members thought there had been no further action to follow up this matter, so they had to initiate one.

Normally, the Penal Code provides litigable grounds for libel cases.

A unique case is the defaming, insulting or threatening of the King, Queen, Heir-apparent, or Regent, which is a case that anyone can bring to the Court. And penalties in this Section are heavier than the law governing the slander of an ordinary person.

The extension of this extra protection to the Privy Councillors has been widely criticized.

Commenting on the issue, Mr. Gothom Arya said he holds that the laws should not be changed since this might contravene Section 5 of the 2007 Constitution: "The Thai people, irrespective of their origin, sex, or religion shall enjoy equal protection under the Constitution", and Section 30 in Chapter III "Rights and Liberties of Thai People": "All persons are equal before the law and shall enjoy equal protection under the law." The amendments would provide unequal protection of persons and those in certain ranks would enjoy special protection, even though all persons are supposed to be treated equally under the law.

Meanwhile, the Fah Deao Kan (Same Sky) Publishing Hose, which apart from featuring academic publications with bold opinions, also sports a website which is very popular for social and political debate, said in a statement issued prior to the withdrawal of the motion that such an amendment to the Penal Code would usher the Chairperson of the Privy Council and Privy Councillors "into a position of revered worship which shall not be violated", equal to the King.

This will not benefit democracy or the monarchy itself. Should the Chairperson of the Privy Council and Privy Councillors misbehave, i.e., by interfering in politics or misusing their positions for business interests, people would then be prohibited from investigating or criticizing their actions. This would happen as if any action committed by the Chairperson of the Privy Council (who used to be Honorary President of the Charoen Pokphand Group) and Privy Councillors were made on behalf of His Majesty.

Lèse Majesté, a political tool?

"Under the current climate, it is already easy for anyone to be accused of being disloyal. Any outspoken person can easily face the accusation and become a villain for public. Now, they even want to create more tools to abet the accusation. It is both unnecessary and useless" said Mr. Gothom Arya.

It has been known for a long time in legal and media circles that libel and lèse majesté suits have long been used as a tool of political manipulation.

Suthachai Yimprasert, a historian from the Faculty of Arts, Chulalongkorn University, said in one interview with Prachatai that libel litigation has been used as a political tool, but in many instances, the case is launched by the plaintiff since he or she has been damaged.

But cases of defamation of the King, Queen, Heir-apparent, or Regent, the standing is different. The historian proposed that "we should look at the monarchy as an institution, and it is inappropriate that anyone can bring a lèse majesté case. If the Bureau of the Royal Household is the monarch's representative, it should then be authorized to launch lawsuits. And it is for them to consider whether or not a case is actionable. It's not the business of anyone else or the military. It's neither Sondhi Limthongkul's nor Thaksin Shinawatra's duty to judge if a case is actionable or not".

Mr. Pornpetch Wichitchonchai, who proposed the amendments, also said that one reason for this legal change is to provide for protection of the Privy Councillors since "some of them have become political victims".

On this issue, the Fah Deao Kan Publishing Hose commented that the statement indicates that the amendments were proposed in order to solve problems for General Prem Tinsulanonda. The retired General has been accused by both Thai and foreign media as having been involved in the 19 September 2006 coup. In the past year, he has been subject to heavy criticism from anti-coup groups.

Meanwhile, the Campaign for Popular Media Reform (CMPR) issued a statement accusing these amendments of impeding the right of freedom of expression of people and media and of being in breach of the 1996 International Covenant on Civil and Political Rights (ICCPR).

CMPR reiterated that at present, the Thai media is already overcautious about reports concerning the monarchy and Privy Councillors. In addition, new laws have recently been enforced to curb freedom of expression including the 2007 Computer Related Crime Act, and other laws related to media and national security. There is no need at all to issue more laws that provide for heavier penalties to further control the media and freedom of expression.

Concerning the criticism that the amendments may contravene Section 45 of the 2007 Constitution, Mr. Gothom Arya commented that it cannot be precisely concluded since exceptional clauses are always there in the Constitution, i.e., restriction of liberty shall not be granted, except for the purpose of maintaining the security of the state or maintaining public order or good morals.

Translated by Pipob Udomittipong