Consider the opening sentence of a recent Bangkok Post op-ed: “The sudden suspension of the controversial lèse majesté law as a result of His Majesty the King’s prerogative is a notable development.” Much work is being done by these two-dozen-or-so words, but let’s spell it out clearly: A draconian and undemocratic law was imposed undemocratically, applied undemocratically and, now, it seems, suspended undemocratically.
For some, the suspension of lèse majesté in Thailand is welcome news. Although it hasn’t been used often in recent years, it carries a maximum 15-year prison sentence, and a minimum three-year stretch, for anyone who is deemed to “defame, insult or threaten the king, the Queen, the Heir-apparent or the Regent.” In a country where free speech is as fragile as the constitution, any retraction of a censorial law ordinarily should be positive.
But not so quick. A Thai democrat, in fact, might prefer to have lèse majesté – or Section 112 of the Criminal Code, as it’s formally called – kept on the books. Why? For starters, suspension of lèse majesté is a red herring. As the Chinese adage goes, “When the sage points at the moon, the fool looks at the finger.” Suspension neither weakens the power of the monarchy, nor improves the autonomy of citizens. Neither, in fact, does it offer more protection to citizens when voicing their opinion about the monarchy. Suspension is the equivalent of me saying, “I will still beat you because I think you’ve offended me, but I’ve decided to beat you with a truncheon rather than a baseball bat.” Either way, the beating is still going to happen – and it’s still the same person deciding.
As many commentators have noted, free speech won’t improve even in the absence of lèse majesté, since Bangkok has a collection of other censorial laws that do the same job — the Computer Crime Act, for instance, or section Section 116 of the Criminal Code. Lèse majesté or not, people can be punished and jailed for saying the exact same things.
As Bangkok Post columnist Atiya Achakulwisut put it: “Without a clear distinction of what constitutes an insult and what is a fair discussion or criticism of the monarchy, authorities will run into the same problem with the controversial lèse majesté law as they try to curb the so-called anti-monarchy sentiment.” Indeed, the king’s decision doesn’t change the rules of what’s acceptable or not; it merely shifts the burden onto other legislation.
In fact, one could argue that free speech might actually get worse because of the suspension of lèse majesté, as prosecution through other legislation won’t be as controversial, especially internationally. Would the rest of the world pay as much attention if a Thai is sentenced to a decade in prison under some bureaucratic-sounding law, like the Computer Crime Act, as they would if prosecution was enacted through the antiquated, draconian but rather interesting (certainly to journalists) lèse majesté?
As such, suspension is a way for the authorities to divert attention from what’s really happening. Deputy Prime Minister Prawit Wongsuwon said this month that the authorities are spending even more time than normal investigating an alleged movement to undermine the monarchy, commenting that “once we get the list of names, we’ll prosecute them.”
Moreover, whenever someone was prosecuted under lèse majesté, it provided a moment for even the most ardent royalist to ponder the inherent contradiction. According to royalists, all Thais love the monarchy. Yet that begs the question of why such a draconian law is needed to harshly punish those who critique an institution that is, supposedly, universally adored. For that matter, how does anyone know what Thais think of the monarchy when people cannot openly discuss it? While there has long been debate about whether Section 112 of the Criminal Code (lèse majesté) was specifically about offended royals or national security, prosecution for expressing the same opinions under the Computer Crime Act, for instance, will frame defamation of the royal family solely through the prism of national security.
Now, if the king can act like an absolute monarch by picking and choosing which laws apply – even a law supposedly intended to protect him – doesn’t this actually increase his authority over subjects and weaken their autonomy? In fact, it confers more arbitrary power to the monarchy. One must consider that, presumably, since the king has asked the government to suspend lèse majesté, he can also ask the government to reintroduce it at some point in the future. Bear in mind, as well, it’s a stunt that has been pulled before. The previous king, Bhumibol Adulyadej, made the same request not to use lèse majesté back in 2005, yet there have been more than 700 cases since 2016, as the Bangkok Post noted.
In describing how lèse majesté prosecutions are pursued, Jakrapob Penkair, a former minister to the Office of the Prime Minister, who in the past was accused of the crime, once commented: “It’s not about your action; it’s about the timing. They wait until the moment when you seem most vulnerable.”
Timing is important here, too. These are uneasy times for the military-cum-civilian government, the same officials who took power in the 2014 military coup that were elected last year at a dodgy ballot. So, too, are these uneasy days for the monarchy. While the late Bhumibol Adulyadej, who reigned for 70 before his death in 2016, was generally admired, the current King, Maha Vajiralongkorn, is far more controversial. As Andrew MacGregor Marshall, of Edinburgh Napier University in Scotland, recently told the Economist, “We have never seen this level of open defiance, towards the monarchy in particular, before.”
Who actually benefits from suspending lèse majesté? It’s not democrats or free-thinkers, who will be punished for the same “crimes” whether under lèse majesté (which will remain on the books) or other laws. No, it’s the king himself and his government mandarins who are to benefit the most. By rescinding lèse majesté through his own decision, it strengthens the power of the absolute monarch, rather than weakening it. Not only that, he is attempting to show that he is outside the political fray, while at the same time being very much part of it. At least when lèse majesté was deployed against democrats and dissidents, there was honesty about the monarchy-political nexus.
Give ear to Prime Minister Prayut Chan-o-cha’s comments this month: “The law [lèse majesté] was not used because His Majesty has mercy and asked that it not be used. This is what he did for us, and you’ve abused it.” There you have it: It wasn’t rescinded because it was an unjust law, but because the king had “mercy” on his subjects. More than that, the king had mercy and what did his subjects do: abuse his mercy. Any historian of the middle ages would recognize this ploy.
Instead, Thai democrats can reason that an unjust law is no law at all, regardless of whether it’s temporarily suspended by royal fiat. Lex iniusta non est lex, as they used to say.