A Look Into The 2020 Thai Protests From a Legal Perspective

Written By: Matthew Tan

Source: https://www.euractiv.com/section/global-europe/news/biggest-thai-protest-in-years-puts-pressure-on-government/

The recent protests in Thailand have brought to the forefront the often-unspoken taboo subject of the Monarchy. This topic was off-limits for much of the political discourse due to the godlike status of the King. After the passing of his father, the late King Bhumibol, King Maha Vajiralongkorn ascended to the throne in 2016.[1] His reign has included the enactment of a new Constitution in 2017[2] and Thailand’s first election since 2014.[3] Embedded in the Constitution were a set of laws which entrenched military power into the Thai political system. Furthermore, King Maha has allegedly revived the use of the lèse-majesté laws in Thailand’s criminal code, which is one of the strictest in the world.[4] In essence, the protestors, many of whom are students, are protesting the whole system and calling for a new Constitution as well as a reform of the Monarchy.[5] Another demand of the protestors is the resignation of Prime Minister Prayut Chan-O-Cha.[6] He was a military general – as both the former head of the Thai Army and the Junta - who enjoys the support of the military. This article will examine the relationship between Thailand’s legal and political systems and explain the role of the Thai legal system in the maintenance of the Monarch’s “divine” status in Thailand.

History of Thailand’s Constitutions

Thailand’s legal system has undergone many changes, the most fundamental being the six new constitutional documents that have been enacted from 1990 to 2020. One key difference between them is the level of democracy afforded to the citizens.

In 1997, direct election of the Senate was allowed[7], and the Prime Minister would be chosen from a majority of the House of Representatives[8]. This was a significant shift from the 1991 Constitution, which had an appointed Senate[9]. Hence, the 1997 Constitution was seen as a landmark move towards full democracy in Thailand as the entire legislature was filled with representatives elected by the people. However, this Constitution was abrogated after a military coup in 2006 and a new one was put in place a year later. Following another coup in 2014 against then Prime Minister Yingluck Shinawatra, the latest Constitution was formed in 2017. It replaced the 2007 Constitution with a return to a fully appointed Senate, causing the widespread unhappiness among the protestors. It has been characterised as undemocratic as it grants the Military Junta “absolute power”.[10] In addition to the repeal of Thailand’s 1997 and 2007 Constitutions, the military coups implemented martial law.

The use of Martial Law in Thailand

Prior to the Military Junta taking over in 2014, there were 6 months of political unrests. Then Chief of the Thai Army, General Prayut Chan-o-cha declared martial law under the act ‘Martial Law, B.E. 2457’[11]. This act not only gave military authorities powers to ‘preserve good order so as to be free from external and internal danger’[12], but also entitled them to ‘superior power over the civil authority … [in] keeping public order’[13] which superseded ‘all the other provisions of an act or law’[14]. Clearly, the military is authorised to take over the political and legal systems of the country which could lead to the exploitation of martial law. This concern has been raised by Amnesty International as the law ‘grants the army sweeping powers and imposes tight restrictions on key human rights’[15]. Furthermore, martial law can be abused to indefinitely suspend democracy in Thailand. This is because there is no safeguard within the act to keep martial law time limited, probably leaving the military authorities permanently in charge. Whether or not the country rejects the constitution in the referendum, Prime Minister Prayut stated that “[he] won’t resign” as “[he is] the one who lays out the rules for this country”[16]. This opens up the possibility of a despot who would abuse the imposition of the martial law to further their own interests instead of ‘preserve[ing] good order’[17]. Therefore, such constant threat hangs over the protest movement in Thailand with rumours that the military might launch another coup and declare martial law. Nonetheless, it was rejected by Army Chief Narongphan Jittkaewtae, ‘saying the chance of another putsch was “less than zero”’[18].

As shown, the use of martial law is a distinctive feature in Thailand’s legal framework and is also influential on other parts of the legal system since it allowed the Thai government to rewrite the 2007 Constitution, resulting in the recent enacted constitution in 2017.

Thailand’s 2017 Constitution

Thailand’s 2017 military-written Constitution was adopted after a referendum in 2016. While the turnout rate of 54% was relatively low, 61% voted in favour of it[19]. At the same time, it is worth noting that campaigning in the referendum was banned under the 2016 Referendum Act[20] with activists being arrested for violating the law.[21] It precisely states that any person is forbidden from disseminating ‘texts, pictures, sound in newspaper, radio, television, electronic media or any other channels … to induce eligible voters refrain from voting or vote in a certain way or abstain from voting’[22]. With these restrictions, Matthew Wheeler opines that ‘the vote cannot be free and fair’[23]. He also believes that ‘[w]ithout an open debate on the merits of the draft constitution, there can be no consent of the governed’[24]. This call into question the legitimacy of the enactment of the constitution and the structures it put into place with regards to the appointment of the prime minister.

Under the current constitution, the Military Junta appointed 250 senators[25]. This means that the Senate is composed of loyalists picked by the Junta. Together with the 500-seat House of Representatives, they would vote for the prime minister in a joint session of the national assembly[26]. This implies that the military-backed party only needs 126 seats in the House of Representatives to appoint their preferred prime ministerial candidate. The Military Junta has only appointed Senators who are loyal to them, signifying that these senators will support the military backed prime ministerial candidate. This was evident in the fact that Prime Minister Prayut got 249 out of the 250 senators to support him as Prime Minister, with the last remaining senator abstaining due to his role as the presiding parliament speaker.[27]

Undoubtedly, even when there are democratic elections, the entrenchment of the military in Thai politics has a huge influence on the country’s governance.

Apart from permitting the military to exercise indefinite power, the Constitution also codified the Monarch’s revered position. In section 6, it states that ‘[t]he 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.’[28] The palace had also ‘required revisions to a new constitution that gave him greater emergency powers. He has since taken personal control over some army units and palace assets worth tens of billions of dollars.’[29] This has placed the King in a position where there is no accountability for his actions. He allegedly spent most of his time in the Bavarian alps with his household[30], which has been a flashpoint for the movement as protestors wonder ‘why public funds are being handed to a king who spends more time in Germany than he does in Thailand’[31]. The divine status of the King could also be demonstrated by the disapproval of lèse-majesté – “to do wrong to majesty”[32] – which render this subject taboo.

Lèse-majesté Laws

Thailand’s Lèse-majesté laws are known to be one of the strictest in the world. It is criminalised under section 112 of the Thai Penal Code, B.E. 2499 (1956): ‘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.’[33] There is no definition to what an insult constitutes, allowing the Thai Government to ‘interpret the law in a very broad way’[34]. The system surrounding the prosecution of these crimes are shrouded in secrecy with ‘trials were veiled from public scrutiny, and, at times, held in military courts’[35]. One example of a prosecution under section 112 was Wichai, where ‘[a] Bangkok military court convicted [the defendant] of 10 counts of lese-majesty’ and sentenced him to 35 years in jail[36]. This has a chilling effect on freedom of speech and the democracy in Thailand. Any attempts to question and demand accountability for the considerable wealth of the King could be met with charges of lèse-majesté. It works in tandem with section 6 of the 2017 Constitution to virtually ensure that the Monarchy cannot be criticized or questioned. This is where the protest movement of 2020 comes in. Protest leader, Parit Chiwarak has called ‘for the public to be allowed to scrutinize its considerable wealth’[37]. Along with other protestors like Anon Nampa, they are seeking institutional change where both the role of the Monarch is reformed, and the constitution is amended.[38] However, they have been met with major resistance from the establishment, causing them to be charged with lèse-majesté[39]. Interestingly, lèse-majesté was only revived as an offence on 25th November 2020. This was after a period of 2 years, where the King had once instructed the prime minister to not charge citizens with lèse-majesté. Prime Minister Prayut stated that this was due to “His Majesty’s mercy”[40]. Obviously, the present situation has undergone massive change since 2018, with people demanding for accountability with respect to the actions of the Monarch. It could be inferred that the establishment conceives the protestors as a clear and dangerous threat to the existence of the Monarchy and have thus decided to reintroduce the use of the law.

Where Thailand goes from here

Thailand is at an inflection point, both politically and legally. Its legal and political systems have ensured that the Monarchy is untouched from criticism. Yet, even with these laws, the youths of Thailand are starting to become unafraid and are willing to risk it all for what they desire in their future: A future where accountability and transparency form the bedrock of Thailand’s system of government, and a future where democracy is respected by the establishment. However, they are constrained by the very system they seek to change. The threat of long jail sentences and harassment looms large over them, and it remains to be seen if they would eventually give up the fight for a fairer and a more just Thailand.

Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.

[1] Richard C. Paddock, “New King for Thailand as Crown Prince, Vajiralongkorn, Ascends to Throne” (New York Times, 1 December 2016) <https://www.nytimes.com/2016/12/01/world/asia/thailand-king.html> accessed 20 November 2020. [2] Reuters Staff, “Thai parliament approves king's constitutional changes request, likely delaying elections” (Reuters, 13 January 2017) <https://www.reuters.com/article/us-thailand-king-constitution-idUSKBN14X0IF> accessed 30 January 2021. [3] Reuters Staff, “Thai king opens first parliament since 2014” (Reuters, 24 May 2019) <https://www.reuters.com/article/us-thailand-king-constitution-idUSKBN14X0IF> accessed 30 January 2021. [4] “Thailand revives law banning criticism of king in bid to curb protests” (BBC, 25 November 2020) <https://www.bbc.com/news/world-asia-55062397> accessed 30 January 2021. [5] Helen Regan and Kocha Olarn, “Thousands protest in Bangkok after Thai parliament votes on constitutional reform” (CNN, 19 November 2020) <https://edition.cnn.com/2020/11/18/asia/thailand-protest-constitution-vote-intl-hnk/index.html> accessed 20 November 2020. [6] Ibid. [7] 1997 Constitution of the Kingdom of Thailand s 123. [8] 1997 Constitution of the Kingdom of Thailand s 202. [9] Ted L. McDorman, “The 1991 Constitution of Thailand” (1995) 3 WILJ 257. [10] Nicholas Jenny, “Thailand’s undemocratic Constitution: 3 takeaways” (Global Risk Insights, 18 March 2016) <https://globalriskinsights.com/2016/03/thailands-undemocratic-constitution-3-takeaways/> accessed 23 November 2020. [11] Martial Law, B.E. 2457 (1914). [12] Ibid s 2. [13] Martial Law (n 11), s 6. [14] Martial Law (n 11), s 2. [15] “Thailand: Martial Law must not become 'blueprint for human rights violations’” (Amnesty International, 20 May 2014) <https://www.amnesty.org/en/latest/news/2014/05/thailand-martial-law-must-not-become-blueprint-human-rights-violations/> accessed 23 November 2020. [16] Prashanth Parameswaran, “Thailand’s Prayut ‘Won’t Resign’ if Referendum Fails” (The Diplomat, 28 June 2016) <https://thediplomat.com/2016/06/thailands-prayut-wont-resign-if-referendum-fails/> accessed 23 Nov 2020. [17] Martial Law (n 11), s 2. [18] Agence France-Presse, “Thai protesters flood street with rubber ducks in 'coup prevention' drill” (The Guardian, 28 Nov 2020) <https://www.theguardian.com/world/2020/nov/28/thai-protesters-flood-street-with-rubber-ducks-in-coup-prevention-drill> accessed 29 November 2020. [19] Jonathan Head, “Thai referendum: Why Thais backed a military-backed constitution” (BBC, 8 August 2016) <https://www.bbc.co.uk/news/world-asia-37013950> accessed 25 November 2020. [20] Organic Act on Referendum for the Draft Constitution B.E. 2559 (2016), s 61. [21] Adam Ramsey, “Thailand constitutional referendum: all your questions answered” (The Guardian, 3 August 2016) https://www.theguardian.com/world/2016/aug/03/thailand-constitutional-referendum-all-your-questions-answered Accessed 30 January 2021 [22] Ibid. [23] Matthew Wheeler, “Constitutional Referendum Cannot Disguise Thailand's Democratic Deficit” (The Lowy Institute, 5 August 2016) <https://www.lowyinstitute.org/the-interpreter/constitutional-referendum-cannot-disguise-thailands-democratic-deficit> accessed 25 November 2020. [24] Ibid. [25] 2017 Kingdom of Thailand Constitution s 269. [26] 2017 Kingdom of Thailand Constitution s 272. [27] Wassana Nanuam, “PM Prayut thanks MPs for their votes” (Bangkok Post, 6 June 2019) https://www.bangkokpost.com/thailand/politics/1690376/pm-prayut-thanks-mps-for-their-votes accessed 30 January 2021 [28] 2017 Kingdom of Thailand Constitution s 6. [29] Reuters Staff, “Thai Protestors openly criticise the monarchy” (Reuters, 3 August 2020) <https://uk.reuters.com/article/uk-thailand-protests/thai-protesters-openly-criticise-monarchy-idUKKCN24Z2JF> accessed 28 November 2020. [30] Hannah Beech, “Once Out, Consort to Thailand’s King Is Back In (and a Major General, Again)” (New York Times, 9 October 2020) <https://www.nytimes.com/2020/09/02/world/asia/thailand-king-consort.html> accessed 29 November 2020. [31] John Reed, “The king’s money: Thailand divided over the $40bn question” (The Financial Times, 13 October 2020) <https://www.ft.com/content/251d8aea-6939-4166-afe6-2df0176e0f8f> accessed 28 November 2020. [32] “Lèse-majesté: Watching what you say (and type) abroad” (OSAC Analysis, 29th August 2019) <https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5> accessed 13 January 2021. [33] Thai Penal Code, B.E. 2499 (1956) s 112. [34] “Lese-majeste explained: How Thailand forbids insult of its royalty” (BBC, 6 October 2017) <https://www.bbc.co.uk/news/world-asia-29628191> accessed 28 November 2020. [35] Marwaan Macan-Markar, “Thai pullback from lese-majeste leaves censorship in another guise” (Nikkei Asia, 19 June 2020) <https://asia.nikkei.com/Politics/Turbulent-Thailand/Thai-pullback-from-lese-majeste-leaves-censorship-in-another-guise> accessed 28 November 2020. [36] Agence France-Presse “Man jailed for 35 years in Thailand for insulting monarchy on Facebook” (The Guardian, 9 June 2017) <https://www.theguardian.com/world/2017/jun/09/man-jailed-for-35-years-in-thailand-for-insulting-monarchy-on-facebook> accessed 28 November 2020. [37] Hannah Beech and Muktita Suhartono, “A Feared Law to Protect the Monarchy Returns Amid Thailand’s Protests” (New York Times, 25 November 2020) <https://www.nytimes.com/2020/11/25/world/asia/thailand-protest-lese-majeste-monarchy.html> accessed 28 November 2020. [38] Patrick Smith and Nat Sumon, “Young protesters in Thailand risk much to demand change from military, monarchy” (NBC News, 25 Nov 2020) < https://www.nbcnews.com/news/world/young-protesters-thailand-risk-much-demand-change-military-monarchy-n1248807> accessed 30 January 2021 [39] Tyler Rooney, “Thailand Protesters Gather as Government Weaponizes Lese Majeste” (The Diplomat, 27 November 2020) <https://thediplomat.com/2020/11/thailand-protesters-gather-as-government-weaponizes-lese-majeste/> accessed 28 November 2020. [40] Reuters Staff, “Explainer: Thailand’s lese majeste law” (Reuters, 4 August 2020) <https://uk.reuters.com/article/us-thailand-protests-monarchy-explainer/explainer-thailands-lese-majeste-law-idUSKCN2501Q1> accessed 28 November 2020

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