Written by: Averroes
(1.0) Introduction
In Thailand, there is a strong farce between the people and the government currently growing in Bangkok. The government employed police to contain the spread of the protests that are demanding the Prime Minister, Prayuth Can-ocha to resign, due to his ineptitude to modulate the increasing number of Covid-19 cases.
This came after the distribution and vaccination for the people were to languid. The protesters demanded that the vaccines be subsituted from China's Sinovac to mRNA shots, such as Pfizer and Moderna. In that situation, 500 protesters were outnumbered by 6000 officers to alleviate the rally.
In addition, the protestors' motive of toppling the Prime Minister as he rose to power through unfavourable means by rigging the political system as to remain in power. Prayut, being the former army chief asserted his position into power by the 2014 coup, while also amending the constitution into a military-styled format.
The protesters also mooted for a reform in the traditional monarchy system of the country, which they would be subjected to a lese majeste law for insulting or defaming the king, queen, heir and regent. They may face imprisonment up to 15 years.
The police resorted to brute force, as the protest have reached the vicinity of the Prime Minister's home. Tear gas and rubber bullets were discharged against the protesters to disperse them. Barbed wires were set up to obstruct the roads as the protesters marched onwards. They even drove in cars and motorcycles. Whilst doing so, they raised a three-finger gesture as a sign of resistance.
The police defended their use of force as to protect public safety and security. So far 48 people were arrested and charged from arson to violating coronavirus rules which banned public gatherings. In relation, the protesters sparked firecrackers, rocks and shrapnel.
(2.0) The laws relating to Lèse-majesté and the 2014 coup d'etat
(2.1) Lèse-majesté
Thailand have their own version of the Penal Code similar to Malaysia. Unlike Malaysia, our law for insulting or defaming the Yang di-Pertuan Agong is under the Sedition Act 1948. For Thailand, their Sedition law is provided in their Penal Code or specifically, the "Criminal Code".
The Thai Lèse-majesté is provided in the Criminal Code of Thailand of article 112. It has been incessantly been applied in the country, after the throne of Thailand was succeeded by King Maha vajiralongkorn, after his father, King Bhumibol Adulyadej passed away back in 13th October 2016.
So far, from 2007-2016, the Thai Court of Justice reports 837 cases under article 112. Historically speaking, the law does not provide any exception such as done in good faith and public interest, as it was omitted in 1956 due to the Cold War in Southeast Asia. This omitted exception remains until today.
The National Council for Peace and Order (NCPO) is the ruling military junta that has abused article 112 to curb political dissent and discussions related to the Thai monarchy. In the meantime, this law concerns online dissemination of discussions related to the monarchy. Royalist factions lodged reports against those seemingly have violated article 112. This contributed to the spike of cases.
The royalists took the law into their own hands by forcing the perpetrators posting offensive remarks of the King on Facebook, YouTube and Twitter to kneel down before the monarchs portraits. Those commenting on the king are also targeted for violence.
According to the UN Human Rights Committee (CCPR) issued their concluding observations that article 112 violated article 19 of the International Covenant on Civil and Political Rights (ICCPR) whereby the extreme sentencing for breaching the said violation counters the right to freedom of expression
Furthermore, the UN High Commissioner for Human Rights (OHCHR) states that the excessive number of prosecutions and court's consistency in delivering verdicts of disproportionate sentences of lèse-majesté and that it should be amended to suit adaptations with international human rights standards, to the ICCPR.
Since article 112 governs insults, defamation and threats toward the monarchy, defamation is only justified if it affects the individual's reputation and proportionate to that aim. However, the government have charged alleged perpetrators based on their opinions, fact and value judgements. This is indeed not a legitimate aim.
Providing 15 years jail is also not suitable, as the sentencing is extreme. According to the General Comment 34 of the Human Rights Committee, imprisonment for defamation is 'never an appropriate penalty'. The Committee urges parties to consider the decriminalisation of defamation and change it with a different punishment.
In the European Court of Human Rights, Bodrozoc and Vujin v. Serbia, App. 38435/05 (2009), para 34, when a person holds a profession in public related bodies or officials ought to know that they would obviously be prone to scrutiny by the public of whatever they utter or conduct in media and toward the public at large. Hence, political leaders should tolerate and accept multiple criticisms and diverse opinions.
More so, in European Court, Pakdemirli v. Turkey, App. 35839/97 (2005) even declared that there should not be any laws that vests special protection to the head of state or other public functionaries.
(2.2) 2014 coup d'etat
On 22nd May 2014, General Prayut was the Army commander when he dismantled the Phuea Thai Party led by Prime Minister Yingluck Shinawatra. Four days later, the NCPO military junta led by General Prayut was appointed through royal command. He drafted an Interim Constitution with wide powers under section 44 in 2014, while setting up a new constitution.
The new constitution is probably the 2017 Thai Constitution. They did not completely change the the previous 2007 Thai Constitution, but made major alterations.
Soon, on 5th June 2019, he was elected as the Prime Minister while still retaining as head of NCPO. While admitted as Prime Minister, there was the 2017 Thai Constitution which provides the following provisions;
Section 160(6) and 98(12) & (15) of the 2017 Thai Constitution states that "cabinet ministers not be civil servants, employees of state enterprises or 'other state officials'".
On 26th June 2019. 110 opposition members of parliament petitioned to the House Speaker to see if Prayut is a Prime Minister as he also held "another state official" which is being the junta head. This was also brought to the Constitutional Court on 18th September to determine if he is a Prime Minister or not. Mark our calendars.
Some suggests he is Prime Minister, because he already resigned from his military career back in 2014. Previously, the Constitutional Court ruling in No 5/2543 of February 2000 defines "other state official" as someone who fulfills these requirements;
(i) Having been appointed or elected under a law
(ii) Possessing authority to take action or to perform duty in accordance with the relevant law on routine basis
(iii) Being under the command or supervision of the State;
(iv) Having a salary or wage or remuneration as determined by law
Also, it is argued that he is not the Prime Minister because he did not recite the oath completely to be one as provided under section 161 of the 2017 Thai Constitution. He would have to make a declaration in front of the king and say;
"I solemnly declare that I will be loyal to the king and will faithfully perform my duties in the interests of the country and of the people. I will also uphold and observe the Constitution of the Kingdom of Thailand in every respect."
However, he did not mention the last part of the oath. Hence, an incomplete oath renders it to be unconstitutional.
(3.0) Conclusion
To conclude, the current impasse that is embroiling Thailand demands that there should be a reformation in Thailand's Lèse-majesté and how the monarchy administers their functions, while also challenging the validity of Prime Minister Prayut in office while also demanding his resignation due to his unceremonious act of perversions toward the Constitution as well as his inadequate actions to curb the covid-19 pandemic.
(4.0) References;
Reuters. (August, 2021) Thai police face off again with protesters near PM’s residence. Retrieved from, https://www.freemalaysiatoday.com/category/world/2021/08/11/thai-police-face-off-again-with-protesters-near-pms-residence/
Reuters. (August, 2021) Thai protesters push on ‘car mob’ rally, defying detention of leaders. Retrieved from, https://www.freemalaysiatoday.com/category/world/2021/08/10/thai-protesters-push-on-car-mob-rally-defying-detention-of-leaders/
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