Bangkok, 11 October - The Thailand Constitutional Court yesterday ruled that the controversial Section 112 of the Penal Code, better known as the lèse majesté law, is not contradictory with human rights protections of the country's constitution, including on freedom of expression.

The Court ruled on two petitions submitted by the Criminal Court from the arguments of Somyos Preuksakasemsuk and Ekachai Hongkangwan, who are both undergoing separate trials under Section 112. Ekachai is realased on bail, but Somyos remains in detention despite 11 requests for release on bail.  

Arguments

The main argument of the unanimous ruling is that Article 112 gives a 'real practical effect' to Section 8 of the 2007 Constitution (B.E. 2549) that puts the monarch in a 'position of revered worship' and 'shall not be violated'. Section 8 also prohibits any person from exposing the King to any form of accusation or action.

The court therefore upheld the validity of any charges and penalties arising from violation of Section 112 of the Penal Code, which prohibits anyone from defaming, insulting or threatening the King, heir-apparent, and the regent, and makes such offences punishable by imprisonment of three to 15 years.

The Court saw that the lèse majesté law provided 'penalty for offenders is needed to maintain public order and good morals of the people in accordance with the rule of law' in order to protect the King, as an institution and the head of the Thai state.

The Court emphasized that protecting the King related to the 'security of the kingdom' or 'security of the state', which it argued is a legitimate condition 'restricting people's liberty' in Section 45 paragraph one of the Constitution.

The ruling (see Annex) said that the general application of the law regardless of circumstance or person, means that liberty to express opinion within the bounds of Section 112, does not make this law contrary to Section 45 on freedom of expression, and thus Section 29 on general human rights protection.

Implications

The affirmation of the lèse majesté law under this ruling means that there is no remaining recourse for Somyos and Ekachai but to be judged for culpability of their alleged offences.

Somyos has been detained on remand since 30 April 2011 for publishing two lèse majesté articles in the pro-Red shirt magazine Voice of Taksin . Ekachai was arrested 10 March 2011 for selling lèse majesté material, including copies of an Australian TV news documentary and transcripts of cables involving high officials released under through Wikileaks.

The Constitutional Court ruling goes against international criticism of the law, which is seen as restricting freedom of expression.

Frank La Rue, the UN Special Rapporteur on freedom of opinion and expression, particularly has said in 2011 that the law 'does not meet these criteria' of limitations from a national security perspective since the law is 'vague and overly broad, and the harsh criminal sanctions are neither necessary nor proportionate to protect the monarchy or national security'.

SEAPA Executive Director Gayathry Venkiteswaran expressed disappointment at the Court ruling, given the already high number of persons currently in prison for lèse majesté. "The ruling does not consider the extent of the impact of the law on freedom of expression but only upholds national security,' she said.

She expressed concerns that the blanket validation of the lèse majesté law under national security concerns could worsen its enforcement, given criticisms that it has been used as a political tool in the past.

Gayathry said 'Most importanty, the ruling could worsen the chilling effect of the lèse majesté law on the Thai media, which has refrained from tackling legitimate issues because these involved the monarchy.'

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 ANNEX: Unofficial translation by Sinfah Tunsarawuth, an independent media lawyer, of the Constitutional Court Ruling on the constitutionality of Article 112 of the Thailand Penal Code:

New Bulletin of the Constitutional Court

The Constitutional Court deliberated on certain important cases on Wednesday, 10 October 2012, and has the rulings as follows:

1.   The criminal court has filed two petitions of contention of defendants (Mr. Somyos Preuksakasemsuk and Mr. Ekachai or Ek Hongkangwan) in asking the Constitutional Court to examine, in accordance with Section 211 of the Constitution, whether Section 112 of the Penal Code is contrary to Section 3 paragraph two, Section 8, Section 29 and Section 45 paragraphs one and two of the Constitution or not.

Ruling Results

The Constitutional Court sees that Section 112 of the Penal Code is a provision supplementing Section 8 of the Constitution to give it a real practical effect. Therefore, there is no ground to allege that it is contrary to Section 8 of the Constitution. There are still issues for the Constitutional Court to examine whether Section 112 of the Penal is contrary to Section 3 paragraph two, Section 29 and Section 45 paragraphs one and two of the Constitution or not.

The Constitutional Court sees that the principle of Section 112 of the Penal Code is in line with providing protection to the king, an institution and head of the state of Thailand. The provision of penalty for offenders is needed to maintain public order and good morals of the people in accordance with the rule of law, which is the morality and ethics of the law. Therefore, Section 112 of the Penal Code is not contrary to the rule of law under Section 3 paragraph two of the Constitution.

Furthermore, Section 112 of the Penal Code is written in Book II Specific Offences, Title I Offences Relating to the Security of the Kingdom, Chapter 1 Offences against the King, the Queen, the Heir-apparent and the Regent, a measure of the state in providing protection to the king from defamation, insult or threatening. Commission of offences under Section 112 of the Penal shall affect the security of the state as the king is an institution the Constitution recognizes and protects, and is part of the democratic regime of government with the King as head of the state of Thailand. Therefore, Section 112 of the Penal Code is a legal provision relating to the security of the kingdom having the same meaning of being the law enacted for protecting the security of the state provided in Section 45 paragraph two, a condition in restricting people's liberty in expressing opinion under Section 45 paragraph one. The penalty stipulated in Section 112 of the Penal Code is what is necessary to allow Section 8 of the Constitution, which recognizes the status of the king, to have its absolute enforcement in practical terms. It is also a categorization of offences appropriate and proportionate to the status of a person specified by the Penal Code. It is also a provision generally applied, without aiming to be enforced on any specific circumstance or person, and without affecting the essential substances of people's liberty in expressing opinion under Section 45 paragraph one, in any means, as every person shall enjoy the liberty to express opinion within the boundary of not being an offence under Section 112 of the Penal Code. Section 112 of the Penal Code is, therefore, not contrary to Section 29 and Section 45 paragraphs one and two of the Constitution.

The Constitutional Court rules unanimously that Section 112 of the Penal Code is not contrary to Section 3 paragraph two, Section 29 and Section 45 paragraphs one and two of the Constitution.

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About SEAPA

SEAPA is the only regional organization with the  specific mandate of promoting and protecting press freedom in Southeast Asia. It is composed of the Jakarta-based Alliance of Independent Journalists (AJI) and the Institute for Studies on the Free Flow of Information (ISAI); the Manila-based Center for Media Freedom andResponsibility (CMFR) and Philippine Center for Investigative Journalism (PCIJ); the Bangkok-based Thai Journalists Association (TJA); and the network's Kuala Lumpur-based associate member, the Centre for Independent Journalism (CIJ).