Thai Criminal Code classifies offences of insult or defamation in accordance with the status of and relations among persons in line with ethical norms in Thai society. This has made Thai laws different from those of other countries in a number of respects.
For example, the offence of theft of religious objects is probably non-existent in Western law because Thais and Westerners have different ways of showing respect for religion.
There are many other instances that demonstrate the differences between the ethics and culture of the majority of the Thai people as appears in Thai laws on the one hand, and the ethics and laws of Western countries on the other
Monarchs in Thai culture and Ethics
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. Countries such as the United Kingdom, Belgium, Norway, the Netherlands, Spain, Japan and Thailand belong to this group.
The second group is “ruling monarchy.” Countries in this group are mostly Islamic countries such as Saudi Arabia, where the King chairs meetings of the Council of Ministers, and Brunei Darussalam.
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. Countries within this category include the United Kingdom and Japan, where the Queen or the Emperor is not very closely engaged with the people.
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 monarch may drive or ride a bicycle to department stores. Royal court traditions are not as strict as in the first category. Monarchs in this category include those of Scandinavia, i.e. the Queen of Denmark, the King of Sweden and the King of Norway, and the Queen of Netherlands. The bonds between the monarch and the people are not prominent.
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. The most evident example of this category is the Thai monarch.
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.
The bond between the Thai monarchy and the Thai people is unique. It is not one between the Head of State as a political institution and the people as holders of sovereign power. It is a special relationship with certain characteristics that may be difficult for foreigners to appreciate.
Deva-Raja (God-King) or Dhamma-Raja (Righteous King)
Some foreign writers have explained that Thais regard their king as a god-king based on the Brahmin concept of deva-raja. This is not entirely wrong, considering the roots of some royal traditions in Thailand. But in fact, Buddhist beliefs are more dominant. In the Agganna Sutta on the origins of the world and the social order, Buddha said that the king, or Khattiya, is “mahasammata” (“the people’s choice” or “one whom the public acclaims as their leader”), a “raja” (one who brings happiness or contentment to others). The king attains such a position by his “virtues,” not his “vices.” Buddha further said that “the king is best among those who value clans. But he who has knowledge and virtue (dhamma) is best among gods and men.”
In this regard, the concept of “dhamma-raja,” which means a king who rules with righteous principles (e.g. the 10 raja-dhamma or principles of a righteous king, the 12 principles of cakkavatt-vatta or duties of a universal ruler, and sangaha-vatthu or principles of benefaction), is more important than that of deva-raja. Examples in this regard have been set by King Ashoka the Great of India, and in Thailand’s case, King Thammaracha Lithai of the Sukhothai era and His Majesty King Bhumibol, who has acted in keeping with his Accession Oath before a grand audience that: “We shall reign with righteousness, for the benefit and happiness of the Siamese people.” (See the author’s work entitled The Ten Principles of a Righteous King and the King of Thailand.)
From ‘Political Institution’ to ‘Principal Social Institution’
The monarch is the Head of State and thus a political institution. Although he has no political agenda and acts on the basis of advice from an elected government, the monarch remains a “political institution” which is – in the words of Walter Bagehot – a “dignified part of the Constitution,” while the Council of Ministers and the National Assembly are the Constitution’s “efficient parts”.
His Majesty the King’s deeds and contributions over the more than 60 years of his reign – be they his tireless dedication in alleviating socio-economic problems faced by Thai people to “narrow the gap” of what the government had not done or in places the government had not reached through implementation of royally-initiated projects, or his intervention to prevent escalation of the crisis between the government and the people during the events of October 14, 1973 and May 1992 – have transformed the Thai monarchy from a “dignified political institution” to an “efficient social institution” in the same manner as the family or religion. The monarch therefore is not a “demi-god” unreachable and cloaked in mystique but rather a “father,” as Thais call him, whom Thai people love and respect.
Such a relationship is more than that between the Head of State and the people in Western societies. How Thais feel towards their King was clearly demonstrated when hundreds of thousands of Thais, at their own behest, thronged Ratchadamnoen Avenue to wish their King well on the occasion of the 60th anniversary of his accession to the throne, or when they kept round-the-clock vigils at Siriraj Hospital where the King was admitted.
This is the basis of a provision which appears in every Thai constitution – that “The 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” (Section 8 of the present Thai Constitution). This provision is the “effect” of Thai culture and ethics, not the “cause” which coerces Thai people to respect the King as alleged by some.
This culture of paternalistic governance also explains a phenomenon which may not take place anywhere else. When the Thai King is unfairly criticised, most Thais feel like their own parent is being attacked and cannot accept it – much in the same way that Thais do not accept anyone demeaning the Buddha or even statues that represent him.
The lese majeste offence means not just harm to the monarch but also to the “father” of most Thais – a serious social offence comparable to ingratitude towards one’s own father. 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. Most Thais, however, still wish to maintain the law in order to protect the institution they revere from harm.
In other words, lese majeste is regarded as not just harmful to the person insulted but to 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. 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.
All this demonstrates that in Thai society, the lese majeste offence has its basis not only in the principles of international law or constitutional law but also in Thai ethics, culture and Buddhist principles which are unique to Thai society. In a similar vein, some Western countries may protect their parliaments through contempt-of-parliament laws (which Thailand does not have), or protect their courts through contempt-of-court laws, while Muslim countries protect their God and faith. Individual freedom of expression thus ends when it comes up against what each society wishes to protect.
This is in fact the beauty of diversity. No true democrat should want every society to use a single set of standards and place individual freedom of expression above the needs and consensus of the majority of that particular society. Someone who wishes to do so, if such a person exists, should not be called a democrat but an ethical despot. Conversely, it is the recognition of ethical and cultural diversity based on the concept of ethical pluralism that is democratic and open-minded because it appreciates the right to self-determination of each society.
Thai Laws Reflecting Thai Culture and Ethics
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. Insult against another person in his or her presence under Section 393 has a penalty of imprisonment for a term not exceeding one month or a fine not exceeding 1,000 baht, or both. The penalty for defamation under Sections 326 to 333 is imprisonment for a term not exceeding one year or a fine not exceeding 20,000 baht, or both. The penalty for defamation by means of publication is imprisonment of up to two years or a fine of up to 200,000 baht.
The second group is insult or defamation against state officials or the Court. Insulting officials (Section 136) carries a penalty of imprisonment for up to one year or a fine of up to 20,000 baht, or both. Insulting the Court or the judge (Section 198) presiding over a case carries a penalty of imprisonment for four to seven years, or a fine of 2,000 to 14,000 baht, or both.
The third group is insult against the Head of State of foreign countries or lese majeste. Insulting or threatening the King, Queen, Consort, Heir-apparent or Head of State of foreign countries (Section 133), which is an offence against the friendly relations with foreign states, is punishable by one to seven years’ imprisonment or a fine of 2,000-140,000 baht, or both. The penalty for defaming, insulting or threatening the Thai Monarch, the Queen, Heir-apparent or Regent is imprisonment for a term of three to 15 years. Insulting or defaming a representative of a foreign state accredited to the Royal Court has the penalty of imprisonment for a term of six months to five years or a fine of 1,000-10,000 baht, or both.
It is clear from the above that the Thai Criminal Code classifies offences of insult or defamation in accordance with the status of and relations among persons in line with ethical norms in Thai society. This has made Thai laws different from those of other countries in a number of respects. For instance, deliberate homicide (Section 288) is punishable by death, life imprisonment, or imprisonment for 15 to 20 years, while murdering an ascendant (e.g. parents and grandparents), an official in the exercise of his or her duties, etc (as specified under Section 189) carries a mandatory death sentence. This is because in Thai society, parricide is, based on its religious and ethical norms, an unforgivable sin and the gravest act of ingratitude.
The offence of theft (Section 334) carries a penalty of imprisonment of up to three years and a fine not exceeding 6,000 baht. But if such theft involves Buddha statues or religious objects (of any religion) which is venerated by the public or a national treasure (Section 335 bis), the penalty is imprisonment for three to 10 years and a fine of 6,000 to 20,000 baht.
The offence of theft of religious objects is probably non-existent in Western law because Thais and Westerners have different ways of showing respect for religion.
Section 71 on theft further stipulates that a husband stealing from wife or vice versa shall not be punished. If the offence is committed by a descendant against his or her ascendant or vice versa, or by a brother or sister of the same parents against each other, then the offence shall be deemed compoundable and the Court may inflict less punishment than that provided by the law for such offence.
These provisions reflect the fact that where theft occurs among parents and children, or brothers and sisters, society allows these persons to “forgive” each other. This also may not exist in Western law.
There are many other instances that demonstrate the differences between the ethics and culture of the majority of the Thai people as appears in Thai laws on the one hand, and the ethics and laws of Western countries on the other. For example, Thai law prohibits a descendant from suing his or her ascendant as this is considered an act of ingratitude (Section 1562 of Thai Civil and Commercial Code) and revocation of a gift cannot be claimed except for an act of ingratitude on the part of the receiver (Section 531).
By: Dr Borwornsak Uwanno ,
Dr Borwornsak Uwanno is a Fellow of the Royal Institute and Secretary-General of the King Prajadhipok Institute. This is the second instalment of a three-part series.
Thailand’s Lese Majeste Law, The Law for Thai people