Prof Borwornsak: “Lèse-Majesté Law Consistent with Human Rights Principle”

Borwornsak Uwanno sets himself 2 propositions to refute :

First, a lèse majesté offence contravenes the democratic principle of freedom of expression and, second, lese majeste allegations have been abused by the accusers for political gain.

Are there any problems with enforcement of the law? If so, how can these problems be resolved?

Cutting to the chase, the answers are “No” and “Perhaps the OAG should alone have (unimpeachable) power to prosecute ‘offenders’”.

The first principle is that the ultimate power to govern lies with the people.

The second principle is that everyone in society enjoys human dignity, equality and freedom, which may be limited only by laws enacted by the people themselves or by their representatives.

To refute these 2 propositions he will use 2 lemmas :

1) Democratic principles and criminalisation of certain acts with regard to the Head of State, and

2) Thai culture and the lese majeste offence as a distinctive character of Thai democracy amidst the global democratic movement.

That is
1) some people are more equal than others, and
2) Thailand is different

Things seen as harmful by a society are criminalized by society.

This criminological principle is part of “the rule of law” which is an essential principle of democracy that puts just law over human whim, and prevents humans from arbitrarily making any act a criminal offence.

The first principle is that the ultimate power to govern lies with the people.

The second principle is that everyone in society enjoys human dignity, equality and freedom, which may be limited only by laws enacted by the people themselves or by their representatives.

There must also be mechanisms to protect against violation of such entitlements and disputes must be settled by neutral and independent courts.

Any democracy, Thailand included, adheres to these two principles although they may implement them differently.

Lip service. Promptly jettisoned:

Whatever the form of democracy, it is commonly recognised that the Head of State has a status different from that of ordinary citizens, being not an individual but an institution and a representative of the state. This is an international legal principle that is both common law and a constitutional legal principle in democracies.

With respect to the law there is more than one kind of person on this earth. I don’t believe that, do you?

The constitutions of democratic nations also accord the Head of State a status different from that of ordinary citizens:

Article 5 of the Norwegian Constitution of 1814 states: “The King’s person is sacred; he cannot be censured or accused.”

Article 13 of the Danish Constitution of 1953 states: “The King shall not be answerable for his actions; his person shall be sacrosanct.”

Article 88 of the Belgian Constitution of 1970 states: “The King’s person is inviolable; his ministers are responsible.”

Article 56(3) of the Spanish Constitution states: “The person of the King is inviolable and is not subject to political responsibilities.”

Article 4 of Luxembourg’s Constitution states: “The person of the Grand Duke is inviolable.”

As evident from the above, the constitutions of countries with monarchies stipulate the monarch’s position as being sacred, revered or inviolable. Importantly, the protection accorded does not apply only to the position of the monarch but also to his person. This is reflected by the phrase “the person of the King”.

None of the laws quoted mentions “the monarch’s postion” as sacred. They refer explicitly only to the monarch’s person. “The monarch’s position” is introduced with a wave of the hands, a puff of smoke, and the grin of the Cheshire Cat in the mirror.

Advocacy of replacing the Queen with a President may, for example, be considered an offence under this law.

Nevertheless, the last prosecution under this Act took place in 1883, and the Act has since become “dormant,” or in other words, not been enforced… In 2001, The Guardian newspaper mounted a legal challenge to the Act in the High Court, alleging that the Act was inconsistent with the Human Rights Act 1998 and therefore could no longer be enforced. The case was dismissed by the Court and went to the House of Lords on appeal. The House agreed that the litigation was unnecessary, and that the action was a mere “consultation” or a “hypothetical” case.

Nevertheless, Lord Steyn expressed his opinion that “the part of Section 3 of the 1848 Act which appears to criminalise the advocacy of republicanism is a relic of a bygone age and does not fit into the fabric of our modern legal system. The idea that Section 3 could survive scrutiny under the Human Rights Act is unreal.” (Wikipedia, the Treason Felony Act 1848.)

Rather than explicitly defending locking people up for talk of “a republic” Khun Borwornsak offers pie-in-the-sky long after his victims have died in prison :

As the Buddhist law of impermanence states, everything, the lese majeste offence included, arises, exists and perishes, as the society’s ethical and cultural norms evolve also in accordance with this same Buddhist law. Nothing is permanent. “The only permanent thing is impermanence.”

In the spirit of “And hey… we’re not the only people doing un-democratic things on earth :

Under British common law, both the House of Commons and the House of Lords have the power to commit a person for “contempt or breach of privilege” against them by deliberating and passing a resolution ordering parliamentary guards to hold that person in custody.

No adjudication by the court is required, and even if an appeal is made to the court, the court does not have jurisdiction and has to dismiss the case. (See Brass Crosby’s Case 19 St. Tr. 1147).

This parliamentary power includes punishment for words or writings which falsely accuse or defame either House or their members. (Erskine May, 1983, p.124, 152.)

Ultimately the basis of unjust justice is a projected inequality among men:

As Aristotle said, to treat unequals equally is unfair…

The same goes for freedom…

Having quoted Aristotle and waved his hands he now takes as a given human inequality and differing levels of freedom for different classes of people in consequence.

This is actually the heart of the problem. In spite of a mutual recognition that freedom of expression may be limited, it remains a matter of debate as to what kinds and to what degree such limitations should be.

The heart of the matter is that “society” must be the point of departure, given that different forms of government have been invented to serve the interests of each society.

When a society takes on democracy as the best form of government, with the major principles mentioned above, particularly equality and freedom with limitations, then that society should have the right to self-determination to specify the details of such limitations so long as these principles are respected.

So the application of laws granting unequal freedoms to unequal “subjects” differs by country.

First the classes of unequal people. There are 3 groups :

The structure of offences of insult or defamation in the current Thai Criminal Code is divided into three groups and six levels:

The first group is insult or defamation against ordinary persons.

The second group is insult or defamation against state officials or the Court.

The third group is insult against the Head of State of foreign countries or lese majeste.

And “6 levels” come about by subdivision of the third group above into 4 classes:

The 26 countries which have monarchies may be classified into two major groups.

The first is “constitutional monarchy,” in which the monarch is the Head of State, reigns but does not rule, and acts upon the advice of a government which is elected by the people and has the power to govern.

The second group is “ruling monarchy.”

Nevertheless, within the first group of constitutional monarchy, there are three variations:

The first is a monarchy which has a long history dating back to ancient times and which, after the change to democracy, has retained its mystique and revered status as well as strict royal traditions.

The second is a monarchy which also has a long history but where, following the change to democracy, royalty comport themselves similarly to commoners.

The third is a monarchy which has a long history dating back to ancient times, has an exalted religious and social status as well as strict royal traditions, but has close bonds with the people, who love and respect them for the monarch’s contributions to their well-being.

Can you guess at which “level” Thailand exists? If you’d guessed the last, and presumably highest level… you’d be right.

Proof of the monarchy’s “close bonds with the people, who love and respect them for the monarch’s contributions to their well-being”?

Foreigners may have seen images of King Chulalongkorn or of the present King sitting in the Royal Barge or dressed in kingly attire at royal ceremonies. But Thais have seen not only these images of magnificence, which reflect the continuity of Thai history and tradition, but also those of the King and Queen and their children sitting on the ground and conversing in plain language with ordinary people in remote, harsh areas of the country where no one wanted to go. Royal development projects, which today number more than 3,000, were thus initiated, reflecting the monarchy’s closeness to the people.

Of course all such talk is about seeing “images”. Wearing the right colored glasses and holding your mouth right.

Then comes some mumbo-jumbo on a par with the “divine right of kings” to rule in the west.

Deva-Raja (God-King) or Dhamma-Raja (Righteous King)

Followed by a load of assertions about how the Thai people feel.

Followed by a sniff of dismissal of HM King Bhumipol’s own words on the subject :

It is therefore not surprising that the “father” himself does not want to take offence (as apparent in His Majesty’s remarks on December 4, 2005) and feels that criticism of him can be done…

backed up by more assertions about how the people feel :

Most Thais, however, still wish to maintain the law in order to protect the institution they revere from harm.

What does HM the Dhamma-Raja, HM King Bhumipol know about it anyway? Nothin’!

In other words, lese majeste is regarded as not just harmful to the person insulted but to Thai society, ethics and culture…

Don’t forget the sleight of hand at the very beginning conflating the person of the king and “the institution”… aka Thai society, ethics and culture.

This is in line with the criminological principle that certain acts may be criminalised if there is a societal consensus that they are harmful to society and constitute a limitation on freedom of expression.

Has there ever been a vote on the lèse majesté laws? Khun Borwornsak speaks as though there has been one.

It is not dissimilar to the limitation on freedom of expression as regards criticism of God and the Prophet in Muslim countries, which is not understood by some Westerners, who ridiculed the Prophet revered by all Muslims, thereby creating a controversy that almost led to worldwide violence.

If all else fails equate the arbitrary accusations, assumption of guilt on accusation, inability to even define the crime without yourself being subject to the same cycle, and draconian punishments with religious fundamentalism. Hey… works for them!

It was unfortunate that Mr Nicolaides had not petitioned to the King before being imprisoned. Had His Majesty learned of his plight before the court issued its verdict, Mr Nicolaides’ case might have been dropped. A number of earlier cases indeed were, as the attorney-general and prosecutors in charge of those cases could testify.

His Majesty the King has always shown and acted with mercy and compassion.

But HM the King’s ears are only allowed to hear what his conselors can hear. And they are deaf. Otherwise, how could he have been unaware of the railroading of Darunee Charnchoengsilpakul?

On Dec 4, 2005, on the eve of the anniversary of his birthday, His Majesty the King said:

“Under constitutional monarchy, the King can do no wrong. Actually, to say that the King can do no wrong is an insult to the King because why can the King do no wrong? This shows that the King is not human. But the King can do wrong.”

His Majesty summed up that the King could be criticised, saying:

“But when we say do not criticise, do not violate [the King] because the Constitution says so, in the end the King is troubled. It means that if the King cannot be criticised, that if the King must be criticised, must be violated but cannot be violated, then the damage is done to the King, the King is not a good person. If Thai people, firstly, do not dare and they, secondly, love the King, they do not want to violate. But foreigners often violate the King, and they laugh at the King of Thailand that he cannot be violated, that the king is not a good person…”

“Actually, they should be put in jail. But because foreigners said so, they are not put in jail. No one dares send people who insult the King to jail because the King will be troubled. They accuse that the King is not a good person or at least is sensitive: [that] when someone insults him a little, he orders them sent to jail. Actually, the King has never told anyone to send them to jail. Under previous kings, even rebels were not sent to jail, they were not punished. King Rama VI did not punish rebels. Until the time of King Rama IX, who were rebels? There had never been any. Actually, I do the same thing: do not send people to jail but release them. Or if they are in jail, release them. If they are not in jail, do not sue them because it would cause trouble. The person who is insulted is troubled.

“People who violate the King and are punished are not in trouble. The King is. This is also strange. Lawyers like to launch suits, arrest people and send them to jail. So the lawyers teach the prime minister to sue, to punish. So I tell the prime minister who tells him to punish, do not punish. To punish is not good. In the end, it is not the prime minister who is in trouble. The King is in trouble. Or maybe someone wants the King to be in trouble. I do not know. They commit wrong. They insult the King in order that the King be in trouble. And truly the King is troubled. When people insult us, do we like it? We do not. But if the prime minister punishes them, then it’s not good.”

This royal remark is very clear and needs no interpretation. It reflects His Majesty the King’s democratic spirit and benevolence in the most straightforward way.

So why is that his “most loyal” servants need it to made more clear, and to have it interpreted for them?

Because they “know better than the king” what is good for both the king and for Thailand?

Or is it because they think they know what is good for themselves?

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