An escalation of symbolic actions by pro-democracy protesters took place after the repeated use of force against protesters by the police and legal charges against its leading figures. But when it comes to burning portraits of the King, the state uses the royal defamation law to handle the problem.

A protester and a bonfire. (File photo)

Tom (pseudonym), a pro-democracy protester, burned down a portrait of the King at a certain place in Bangkok after their group was running away and was ambushed by pro-royalists one night in September.

"Please just look at  how much budget was spent producing these portraits? If we keep burning them, and they are symbols that we don't want, they won't make any more portraits. Use the money for the portraits to buy vaccines, spend it on the education budget ...

"People may not understand why. People may wonder if it is anger. But if we have explained things this way, they will get the picture about why we burn them. We burn them to let them know that we don't want them."

Burning rubbish and official property has increased during the past 3 months, mostly after the protests were halted in their tracks from getting close to Gen Prayut Chan-o-cha’s house at the Din Daeng intersection in August, which led to nights of confrontation between furious protesters and the police there and elsewhere.

Royal arches and portraits of the King are the targets of arson, despite the Kingdom's controversial lèse majesté law, Section 112 of the Criminal Code, that carries a 3-15 years jail sentence and which has been criticized for its broad interpretation in the Kingdom’s recent political history.

Legal consequences and something beyond

Tom was later arrested and charged with royal defamation for the arson. He is not the only one to be arrested.

Thai Lawyers for Human Rights (TLHR) reports that between November 2020 and November 3 this year, 155 people in 159 cases have been either charged or put on trial under the royal defamation law. 11 out of at least 19 arson cases allegedly involve burning things related to the monarchy like portraits or arches.

Beside the arson cases, there are 13 royal defamation charges involving removal of portraits, defacing the King's image with stickers or paint and parodying the style of art usually used in royal images.

Regarding arson, Sawatree Suksri, a law lecturer from Thammasat University (TU), says the act itself can be counted as arson or mischief but should not be counted as defaming, insulting or expressing hostility toward the King, Queen, Heir Apparent or Regent as provided under the royal defamation law.

Unlike the law in the days of the absolute monarchy that clearly criminalized damage done to symbols of the monarch and nobles who govern in his stead, Sawatree says that the laws criminalizing injury to the monarchy that came later do not specifically include surrounding figures and symbols as such. 

The portrait in front of the Central Prison was set  alight in February 2021. Chaiamorn ‘Ammy’ Kaewwiboonpan, a famous pop singer was accused for the burning and charged with lèse majesté, arson and computer crimes.

Therefore, the royal defamation charges should be based on an interpretation that the act has a direct intention. The burning by itself may fit the definition of arson or mischief depending on what they burn, but does not constitute a direct threat to harm or murder the subject in the case of burning someone’s image.

The TU law lecturer said the content of the royal defamation law is similar to other laws in the Criminal Code. Thus, it should be interpreted by similar standards. She cited a European Court of Human Rights ruling that the burning of photographs of the King of Spain by protestors was a case of freedom of expression. This example could be used to limit the scope of the royal defamation law.

On the other hand, Poonsuk Poonsukcharoen, a TLHR lawyer, said it is difficult to describe the use of Section 112 under the logic of the law alone. F or a period from late 2018 on, no royal defamation charges were brought against offences that are similar to cases today where this charge is applied. 

At that time, Gen Prayut Chan-o-cha was reported to have claimed that no royal defamation charges were brought because of the King has 'generosity'.

But in November 2020, after a surge in pro-democracy protests, the PM announced that 'every section of the law' would be used and royal defamation charges reappeared.

"It points out the unpredictability in the use of Section 112, because for one period of time, after the coup, it was the policy to use military courts. The trials passed sentences for each offence that were heavy.

"For almost 10 years until 2018 after the King passed away, there was another wave of prosecutions. After the succession of King Rama X, there was a policy change in the direction of not enforcing [Section 112] by every organization.

"The worry may be the strict enforcement of Section 112 over the past year or so.  The overall picture is that Section 112 is used in every case that concerns the monarchy.  This is worrying because it points to unpredictability in Thai society where for one period of time, there were no Section 112 cases at all.

"Whatever you did, it wasn’t an offence, or even if there was a prosecution, some cases are unbelievably dropped. But at another time, whatever is done that is related to the monarchy is all interpreted as Section 112."

Bizarre policing

Most of the arson cases led to arrests in late August. It will take time for them to proceed to court. The latest court case of burning an image of the King was in 2018 when the Appeal Court overturned the conviction of 6 people who burned down a royal arch in Khon Kaen Province.

The reason given by the court was that the defendants had no intention to violate the royal defamation law. It should be noted that the ruling came at a time when the enforcement of the royal defamation law had practically ceased. The direction of the courts in royal defamation cases in the near future will be interesting to observe.

Poonsuk said there are many abnormalities in police procedures regarding arson cases related to the monarchy. For example, in a case in Khon Kaen Province in September 2021, the police tried to interrogate two suspects separately without allowing them to contact a person they trusted.

There are two other cases where the police made arrests and seized the suspects’ phones without a warrant. The police gave the excuse that all this was done with the suspects’ consent, confirmed by documents that they had them sign.

In the case of Tom, the police also tried to remove one suspect for interrogation and bar the presence of a lawyer, which is a constitutional right. After the lawyer successfully insisted on entering the room, he found the suspect shaking with fright. It was reported that he may have been subjected to a police beating.

Of the people arrested that night, Tom and one other suffered physical mistreatment at the hands of the police. In Tom's case, his head was pressed onto a desk and pushed down to his knees after he kept on refusing to allow the police access to his phone.

"They said to please cooperate well with the police. I was like, getting into my phone has nothing to do with Section 112 at all. Why did I have to turn it on for them? It's not the Computer Crime Act. If it's the Computer Crime Act and you had a warrant from the anti-cybercrime police, I would have opened it. But they didn't."

Many juveniles who had their phones seized could not call their parents or guardians. Personal issues also come to play as some juveniles either did not want to contact their parents or their parents were stuck at work and could not come, causing difficulties in the investigation and bail processes.

Piyanut Kotsan, the Amnesty International Director who has participated in the "Child in Mob" campaign promoting and protecting children rights in protests, said some youths arrested at Din Daeng have difficult relationships with their family members. This exacerbates the situation when they are arrested as some of them either could not tell their family members that they went to the protests, they lived apart from them or had lost them due to the Covid-19 pandemic.

Legal harassment only feeds retaliation

From Piyanut’s observations, the escalation of violence among protesters is an expression of anger toward the state’s failure to control the damage from the Covid-19 pandemic. This may explain why these protesters do not seem discouraged by repeated royal defamation charges against the pro-democracy movement’s leading figures and continue to gather and take on the police.

A water cannon truck extinguishes a fire. (File photo)

She sees the gatherings as political because the targets of their violence and arson are things that belong to the state such as police or government property.  This comes in response to the way the crowd control police have dispersed protests in the past .

“If politics was OK, there would not be anger or people coming out to express themselves in this way. I think they could express themselves without this kind of anger. You also have to see that what they have been doing to handle this over the past month and more does not work, but they still do it.

“Why don’t you divert the budget for rubber bullets and tear gas into taking care of the people’s welfare?” asked Piyanut.

A sign saying “reform the monarchy” in front of the Embassy of Germany on 26 Oct 2020.

Sawatree said that allowing a broad interpretation of royal defamation will put an overwhelming burden on the police and judges in the near future in the investigation and trial process. She also sees the sharp rise in arson cases as reflecting the people's anger toward disproportionate prosecutions and questions about the monarchy’s involvement in politics.

"We also can't deny that this administration tries to link itself to the power of the monarchy. ... So this pulls [the monarchy] down quite a lot. Once it is pulled down, it can't stop people from thinking as a consequence, hey, does the monarchy have a political role, or is it involved in the country's administration?

"And when the national administration doesn't look to be working, and looks to have many problems ... because the protests to have the government resign haven't worked, it keeps on escalating."

She suggested that not allowing people to speak their minds can provoke them into resorting to violence and ignoring the laws that mistreat them. Negotiation and opening space for criticism under the framework of the law should solve the tension.

Poonsuk also thinks that the violence of the protesters has something to do with the use of the royal defamation law as a political tool. She suggests the authorities drop the ongoing cases because the offences are unrelated to the charge and it is not in the public interest. In the long term, Section 112 should be amended and the importance of the rule of law established in Thai society.

"When we talk about being in a state ruled by law, or the rule of law, it has to be firm and certain and the law must not look at who it is dealing with. But the use of Section 112 clearly shows that it is selectively used against some groups, some cases, and depends on the whim of one organization or one individual to a certain extent.

"It points out uncertainty that is not decided by the law, but by something more than the law, because the law has always been the same while the situation has switched back and forth," said Poonsuk.

X (pseudonym), another protester who set fire to a portrait of the King, said the monarchy should be open to criticism and that the arson he caused was an expression of his anger toward the use of violence against the protesters by the crowd control police.

"I feel that it's not wrong to burn things. But people’s rage makes them do it."

A case toll graphic and numerical updates were added on 9 November 2021, 16.52.