Introduction
Lèse-majesté (min phra borom dechanuphap, ‘defaming royal power’) is defined in Thai law as an act that “defames, insults, or expresses injuriousness to the monarch, the queen, the heir-apparent, or the regent.” The majority of acts indicted to be royal defamation involves not the use of force or physical gestures but that of words, both in speech and in writing, and both in posting and in reposting on social media. But in Thailand, such verbal acts correspond to heavy punishment: between three to fifteen years of prison, depending on the judge’s discretion. The sentences also stack: the law multiplies prison time by the count of acts. This math of the legal code has resulted in punishments no less frighteningly violent than what’s captured in the classical Thai idiom “the head will dislodge from the shoulder.” A couple examples: one person was sentenced to 50 years of prison for 25 online posts (this was already reduced from 75 years, the lightest punishment available); another was sentenced to 20 years for allegedly sending 4 text messages to 1 recipient, without anyone in the police, prosecutor, and court system being able to really prove that the person actually sent those messages that didn’t kill anyone except he himself who actually died while serving his sentence in prison.
Guilty judgments usually justify such disproportionate punishments by saying that the defamation that took place not only tainted someone’s reputation, but also tainted what is called royal honor (phra kiattiyot). Yet at the same time, that impact on royal honor is not judged to only affect the one defamed, but rather affect all ordinary Thais who, it goes without saying, don’t have royal honor. Under the judicial stock phrasing of “impact on the feelings and the good morals of the people,” the field of injury is widened, then elevated to a threat to national security.
As verbal violations become the bogeyman by way of the expanded definition of injury that is both too particular and too universal to prove by any quantifiable measure, the only ways left to fight the allegations before the judge’s bench (banlang, ‘throne’) are either to prove that you did not commit such language crimes or to prove that your language acts do not fall under the narrow yet boundless definition of such a so-called legal term: lèse-majesté.
Put another way, such a culturally complex and inherently abstract thing as language, once subjected to legal instrumentation by the prosecution in defamation cases involving the Article 112 of the Criminal Code, is then materialized into something so compressed, so flat and narrow as a sword that is struck into one particular human body, while its damage is inflated into something as humanity-threatening as a nuclear weapon. More disturbing is the fact that this untouchable affair of fatal consequences is run by legal professionals whose language skills stand unparalleled in Thai society, where one side heads off with “In the Name of the King” and the other side must sign off with “The Matter Rests on Your Favor” as if addressing royalty.
We, the Siddhi-Issara Foundation, are interested in exploring the language that is used as evidence and as arguments by the prosecution, the defense, and the judges in cases involving Article 112. To do so, we commissioned a scholarly linguistic research as part of our archival project which seeks to create a more rigorous understanding of politically relevant topics through scholarly means as well as to record the history of freedom of expression in Thai society. The research, titled “Pragmatic Considerations of Linguistic Evidence in Six Lèse-Majesté Cases Focusing on Prosecutor Indictments, Witness Testimonies, and Court Verdicts,” has as its primary author Dr. Isara Choosri, a linguist who testified on the defendant’s side in several royal defamation cases; Chusak Pattarakulvanit, Professor of literary studies, is a co-author. Together, they apply linguistic and hermeneutic theories in their textual analyses of the prosecutor indictments, the testimonies, and the verdicts in six Article 112 cases from the last decade.
Below, we provide a summary of the research, which was originally written in Thai. Included are the theoretical framework, the conclusions, and relevant details and analyses of the six landmark cases.
Theoretical framework
Pragmatics, a branch of linguistics that studies language in action, provides the research with the analytical tools to tease out the crux of each case. For one, the concept of speech acts, which posits that an utterance may be intended to do something other than what the words by themselves express, helps to privilege the speaker’s intent and the utterance’s pragmatic function over flatly criminalizing interpretations. Another guiding principle, based on Jakobson’s paradigmatic theory of communication, is that context corresponds to the function of meaning. Simply put, meaning cannot be determined without context.
But what context exactly? The word itself benefits from a theoretical frame, since “context” is also invoked by the prosecution—including Thai language experts on the witness stand—to justify criminalizing interpretations. The research points out how, in multiple cases, the prosecution’s so-called “context” is the result of a highly selective stitching together of disparate contexts. As such, the prosecution’s “context” is often a paper-thin construction that can easily fall apart with the right poking.
More rigorously, the researchers refer to three levels of context: the micro level, the meso level, and the macro level, which refer, respectively, to the other parts of the text under consideration (i.e., the co-text); the format, genre, and subject governing the text; and the social, cultural, and historical contexts which impact the text’s pragmatic meaning.
On all three levels, the prosecution’s “context” took the defendants’ utterances out of context. On the micro level, the prosecutor indictments tended not to include texts or conversations in their entirety, omitting critical background information in the process. On the meso level, the prosecution tended to ignore the differences between in-person and online communication—missing, for example, the context clues provided by timestamps in an online chat. On the macro level, some of the prosecution witnesses tended to operate on the rather anti-social assumption that a Thai person’s failure to constantly praise the monarchy or directly confront a stranger about not doing so was a sign of disloyalty and malice.
Conclusions
Of the six cases, four involved conversations, posts, comments, and direct messages that took place between 2011-2016 prior to the death of King Bhumibol Adulyadej, while the other two erupted in the immediate aftermath of his death in October 2016.
The highly repressive and sensitive social climate of the previous decade when it came to public statements about the previous king went hand in hand with the increased use of the lèse-majesté law as a political tool. In two of the six cases under study, the defendants were first targeted for other issues—one for posting about an Army corruption scandal, the other for being personally connected to a prominent anti-coup activist—but they ended up being pinned with royal defamation on evidence found after. In another case, the defendant claimed that his accuser started the lawsuit because of business-related personal disputes.
Key to the witness testimonies as well as the research analyses is the role of context in determining—or dislodging—the meaning of the words indicted to be royal defamation. All too often, the evidence presented by the prosecution has gone through a process of decontextualization and recontextualization. That is, an act is divorced from much of its context of origin when it is reframed by the indictment. The research proposes the following general considerations for avoiding the pitfalls of recontextualization in royal defamation lawsuits. Refer to the next section for the case studies.
| Issue | Considerations | Key Examples | |
| 1 | Authorship | Is there evidence that confirms the accused to be the author of the text in question? | The Toom Case: without establishing that the defendant was the author of the posts alleged to be defamatory, meaning could not be determined. |
| 2 | Speech act | Is the text in question defamatory, or is it a different kind of speech act? | The DNA Case: the defendant bringing up his insider status with royalty was not meant to be defamatory but to lend awe to himself in his business dealings. |
| 3 | Conversation | Does each of the interlocutors display a convergent or divergent role in conversation? Does the conversation flow in one common direction, or does it pull in opposing directions? What is the conversational dynamic like? | The DNA Case: the plaintiff’s audio recordings only contained the defendant’s side of the conversations, so the court could not verify the dynamic between the two parties. The Ja Case: the defendant’s brief affirmative after a long pause went in the opposite direction to the other party’s comments about the royal succession; her speech act was effective in politely ending the conversation. |
| 4 | Reference | Is there evidence that confirms the text in question refers specifically to one of the individuals protected by Article 112? | The Royal Canine Case: the target of the defendant’s sarcasm and satire, if any, was not the king but the members of the general public who adored the king’s dog. The Coin Case: the defendant’s act of underpricing a coin with the king’s face on it was not equivalent to insulting the king, because a coin’s primary function is to act as money, not as a symbol of the monarch. |
| 5 | Context | How has the text in question been decontextualized and recontextualized? What is the original communicatory context like? | The Soymilk Shop Case: divorced from their contexts of origin, the defendant’s posts became a new “context” for one another in constructing an impression that misled the reader into seeing nefarious intentions and implied meanings that weren’t originally there. |
Since half the cases under study involved “public” acts on Facebook—with one case going so far as to accuse someone of enabling his Facebook friends to access defamatory content by his clicking “Like” on a page—the researchers also identify the difficulties of pinning down the meaning behind such acts-cum-evidence. Since Facebook users are connected in networked ways, some who see a user’s post may not be its intended audience. In addition, caution is urged on the widespread practice of cap, slang for screen capture, which risks taking a post further and further out of context, whether one aims to use the screenshot as research data or as legal evidence.
Case studies
1. The Toom Case (5 Facebook posts in 2011)
- The prosecution: the defendant created and posted on a Facebook page called “I Shall Reign by Dharma-tic Coups” (rao ja khrong phaendin doy tham ratthaprahan) which claimed that King Bhumibol was behind military takeovers in Thailand. The police arrested the man, seized his computer, and forced the man to provide the password to his computer, email, and Facebook. For evidence, the plaintiff claimed that the man confessed and that in the computer they found a history of access to the Facebook page and the email linked to the page.
- The defense: the defendant denied being the creator of the Facebook page and the owner of the email linked to it. He did give the police the password to his computer, Facebook, and email, but these were different accounts. The man claimed the history of access was fabricated, and through a computer expert showed that the evidence was tampered with during his pretrial detention.
- The verdict: acquittal in all three judicial levels because of dubious evidence and unrecorded confession.
- Analysis: the dispute during trial did not concern the content of the texts, but whether the email and Facebook accounts linked to the texts belonged to the defendant. As long as that ownership and authorship cannot be established, the texts cannot be analyzed in pragmatic terms, and the intent behind the texts is unidentifiable.
2. The DNA Case (6 snippets from 3 conversations in 2014 and 2015)
- The prosecution: the defendant mentioned to three people in three separate conversations that he was related to the Chakri dynasty with a six-point DNA match, that he was “Number One’s Child,” that he would establish himself after the end of the reign, and that he knew the whereabouts of the Crown Prince at all times. For evidence, the plaintiff provided witness testimonies and audio recordings. A communications expert testified that his claims amounted to royal defamation because they misled people into thinking that he was related to the dynasty as the heir apparent. A legal expert testified that “Number One” was a somewhat well-known term referring to King Bhumibol, and so claiming to be his child amounted to “maligning” the king who only fathered children with Queen Sirikit.
- The defense: the defendant denied all allegations, claiming that the lawsuit arose out of other disputes between him and the accuser. The prosecution’s audio recordings did not include three of the alleged snippets. Of the remaining, the defendant explained the DNA match issue: he was legally adopted by a person with a royal surname, and a DNA test found six matches between him and his adoptive parent.
- The cross-examination by the defense: on his interpretation of “Number One,” the legal expert explained that he read it on the basis of “the context of the entire speech,” aided by his legal abilities and knowledge, without which one “might read it differently.” Without the three uncorroborated snippets, the legal expert conceded that the rest was not defamatory. A witness from the police also conceded that “Number One’s Child” could also refer to a child of the Prime Minister. It was also revealed during cross-examination that the accuser edited out his part of the telephone conversations before submitting the recordings to the police.
- The verdict: acquittal because of insufficient evidence. The parts that were substantiated, i.e. the bragging about insider information and distant blood relation to royalty, did not amount to defamation. (It would have been defamatory had the defendant claimed to be King Bhumibol’s son.) The evidence of other disputes revealed during trial also rendered the allegations suspect.
- Analysis: this case study illustrates the issue of authorship as well as the issue of speech act categorization. For the first issue, only three of the six texts were proven by audio clips to belong to the defendant. Which led to the second issue, where the defendant’s speech acts were actually intended to boast about his relation to high-status people in society to inspire feelings of awe and respect in the listener in the context of business negotiations. This context must be taken into consideration, unlike how the legal expert witness on the plaintiff’s side took the six alleged texts for a context. The six texts were derived from multiple conversations in different occasions and contexts. In pragmatics, such disparate speech acts cannot be linked together and elevated into a context to be used for interpreting the meaning of any of the speech acts.
3. The Ja Case (1 word from a Facebook Messenger chat log in 2016)
- The prosecution: The defendant had a private text conversation with Mr. A, an anti-coup activist who had earlier been arrested. The military accessed Mr. A’s Facebook account and found this conversation, for which he had already been convicted of lèse-majesté after a confession. The defendant implicitly accepted and agreed to Mr. A’s defamatory statements that there would be a struggle for succession and that there wouldn’t be another king. As a Thai citizen who had a constitutional duty to defend the monarchy, the defendant should have prohibited, objected to, or admonished someone who was stepping on it. The conversation went as follows:
– at 22:23 hrs, the defendant typed, “really hard being in this country nowadays”
– at 22:23 hrs, Mr. A typed, “it will be even harder, because now the █████ are vying for ██████”
– at 22:24 hrs, the defendant typed, “Sigh, more trouble for the grassroots like us”
– at 22:25 hrs, Mr. A typed, “Yes, once the ███ dies it’s over for Thailand. There won’t be the █████. Maybe guns will govern. That’s my speculation.”
– at 22:29 hrs, Mr. A typed, “Because now the mandarins are waiting to pounce. If the ███████████████████████”
– at 22:30 hrs, Mr. A typed, “Don’t mind me talking this way”
– at 22:34 hrs, the defendant typed, “Ja”
– at 22:35 hrs, Mr. A typed, “The coup in ’06 the ████████, why let the coup happen if you love the people. Hehe going a bit hard today.” - The defense: the defendant denied making injurious statements about the king. The defendant admitted that she did have the alleged conversation with Mr. A, whom she did not know personally except as someone who did activism with her son. The conversation actually began by Mr. A asking her whether she would join her son’s action; she replied telling him to take care of her son for her. She complained about the country’s livability because earlier her son had been abducted by men in black in front of Thammasat University. Her next text was a continuation of her first comment. As for Mr. A’s messages, they made her uncomfortable but she did not counter it nor concur with it; she did not want the conversation to continue, so she chose to just say the polite affirmative “ja” to end it. A political scientist and a linguist (Isara himself), as expert witnesses, further argued, respectively, how the conversation was one-sided, and how the context of the entire conversation, the faceless format of an online chat, and the cultural norms discouraging blunt disagreement needed to be taken into consideration in the interpretation of the “ja.”
- The verdict: acquittal because there was no evidence of collaboration or shared intent with Mr. A’s actions. The defendant’s affirmative or polite ending “ja” in the context of the conversation meant that she assented to Mr. A’s request not to mind his one-sided messages. Moreover, considering the nine-minute gap between “ja” and her previous message, this was the shortest possible response that expressed a desire to end the conversation.
- Analysis: the key difference between this case and the preceding DNA case is that the conversation here took place in the format of a faceless online chat rather than an in-person verbal exchange. To understand the intent behind the “ja,” all three levels of context are salient. On the micro level, Mr. A’s request not to mind his messages clarifies how the “ja” is not intended to be an endorsement of texts deemed to be royal defamation. The full conversation prior to the “ja” further reveals differences in the topic and the amount of turns taken: Mr. A talks volubly at the defendant about the royal succession but the defendant limits herself to expressing general dissatisfaction in her everyday life, followed by a silence that signals a desire to disengage from the conversation. On the meso level, the real-time but faceless format of the written online chat makes it so that time gaps and short replies are key in indicating a desire to disengage that could otherwise be conveyed by facial expression or tone of voice. On the macro level, Thai cultural norms discouraging frank expression of dissent or disapproval in conversation, preferring the withholding of opinion instead, explains the defendant’s failure to shut down Mr. A’s statements.
4. The Royal Canine Case (3 quotes on a Facebook post in 2015)
- The prosecution: the defendant clicked the like button on a Facebook page that contained an image and text that was inappropriate and injurious to King Bhumibol; by knowingly liking the page, the defendant expressed agreement with the content and enabled his Facebook friends to access it on the defendant’s Facebook. The defendant also posted the following sarcastic and therefore defamatory texts on their Facebook:
– “Did you know? Royal Canine Khun Thongdaeng Suwannachad is King Rama IX’s main canine.”
– “Very nice indeed. I’m a human, but all of a sudden I want to be a dog. Nobody allowed to say bad things about Khun Thongdaeng. Have to use the title Khun even if it’s a dog.”
– “Reading the comments made me so teary-eyed.”
During the hearing of evidence, another text was added as attachment to the prosecutor indictment: “Khun Thongdaeng has so much merit. For me to be able to serve the king from up close, I’d settle for being a canine.” A legal expert testified that the first two texts which the defendant had taken from other people satirized the king, and were therefore defamatory to the king; the third text which the defendant wrote himself, when read in conjunction with the image accompanying the first two texts, also amounted to satirizing the king. During cross-examination by the defense lawyer, the legal expert testified that if one disagreed with the first two quotations, it would be within one’s right to employ sarcasm “but only within bounds.” A literary expert from the Royal Society of Thailand testified that they could not give a general meaning or interpret the words, because “the Royal Society’s duty only extends to providing the dictionary meaning of words, but in actual usage a range of contexts must also be taken into consideration; such a contextual interpretation which will have an effect on a criminal case is beyond the authority of the Royal Society.” - The defense: The defendant admitted to clicking the like button on the page and posting the image and texts as alleged, but denied having ill-intent towards the monarchy unlike in the confession he had given while under investigation out of fear of further detention at a military base (he had first been detained because of another Facebook post claiming coup leaders’ involvement in an Army corruption scandal). The defendant explained that he clicked like in order to follow the news; he did not click like on the problematic image on the page. Of the three texts, the first two were quotations from other people which he strung together and then tacked on his only contribution, “Reading the comments made me so teary-eyed,” to express genuine feeling. An internet and law expert testified that the teary-eyed comment could be read either as genuine or as satirical, in which case it likely satirized the authors of the first two texts, not an act of defamation of or injury to the monarchy. A linguistic expert (Isara himself) testified that the second quotation read like sarcasm from the position of envy towards a dog who had higher status than humans; the fourth extra text did not read like sarcasm but had a similar feeling of envy; the defendant’s teary-eyed comment, meanwhile, could be read as support or as sarcasm about the two prior quotations, but none of the texts referred to King Rama IX, and therefore could in no way result in the king being defamed or hated.
- The verdict: acquittal because 1) the defendant only clicked the like button on the Facebook fan page, not the inappropriate image in the indictment; furthermore, in 2015 the like button functioned also as a follow button, so simply clicking like on a page did not necessarily mean liking it nor wanting to disseminate it; 2) the teary-eyed comment was ambiguous, as two of the quotations were unlike each other: one displayed reverence to the monarchy, while the other directed sarcasm towards members of the general public who adored the royal canine. Since neither of the quotations were defamatory, hateful, or injurious to the monarchy, the defendant’s teary-eyed comment, whether his intent was to agree or to engage in sarcasm, was not a violation of Article 112.
- Analysis: semantically, both the text “Very nice indeed. I’m a human, but all of a sudden I want to be a dog. Nobody allowed to say bad things about Khun Thongdaeng. Have to use the title Khun even if it’s a dog” and the reposted text “Khun Thongdaeng has so much merit. For me to be able to serve the king from up close, I’d settle for being a canine” contrasts the human speaker to a superior dog. Pragmatically, both serve to satirize the speaker’s own inferior status in relation to the royal canine. The texts’ impact, where some readers feel that the texts satirize King Bhumibol, comes from the readers not distinguishing between a dog and its owner, leading them to misconstrue that mentioning the former necessarily insinuates something about the latter. On the macro level, since it is well-known that Khun Thongdaeng was King Bhumibol’s favorite pet, albeit not officially appointed, the references to “royal canine” or “main canine” can be correctly understood as factual statements rather than attempts to implicate the monarch. The target of the defendant’s sarcasm and satire, if any, was not the king but the members of the general public who adored the king’s dog.
5. The Coin Case (an argument on a Facebook group in October 2016)
- The prosecution: the defendant posted a photograph of a variety of coins (25-satang, 50-satang, 1-baht, 5-baht, and 10-baht) bearing the face of King Bhumibol on a Facebook group of used merchandise sellers, with the caption “Selling. 5 baht a coin.” The post sparked the following argument between the defendant and members of the group:
– Member A: “For fun you say. During mourning.”
– Defendant: “It’s for amusement, don’t be so fanatic I beg.”
– Member B: “A funny guy you say. So amusing you say.”
– Defendant: “Why, you bunch of salim, if you love your father so much, follow him, die now.”
(Indignant, members of the group teamed up to go to the defendant’s place of residence, beat him up, and dragged him to the first floor of the building to prostrate to King Bhumibol’s portrait while still receiving a beating before police intervened and took on the case.) The plaintiff explained that “father” meant King Bhumibol who had passed five days beforehand. This was a violation of Article 112 because it brought dishonor, defamation, hatred, and disrespect to the monarch, whom others were mourning. - The defense: the defendant admitted to posting the captioned image as alleged, but with the intent to joke around, not to actually sell the coins. His replies under the post were intended to tell commenters not to take the post seriously. He also reacted out of anger over the comments accusing that he did not love King Bhumibol; there was no intent to commit the crime as alleged. A linguistic expert (Isara himself) testified on the defendant’s side.
- The verdict: acquittal for lèse-majesté (but guilty of computer crimes due to the false sale, later acquitted on appeal) because the king’s honor and his subjects’ adoration would not fluctuate according to the pricing of coins, and because—even though the defendant admitted that the word “father” did refer to King Bhumibol—his impolite replies were only directed at the commenters who did not take the post the way he had intended.
- Analysis: this case study does not only illustrate the issue of reference like the Royal Canine case; it also shows how emotional mismatches between intent and impact can escalate into a royal defamation lawsuit. For the first issue, the purpose of the coins in this context is to be an asset that can be bought and sold at a price agreed upon by the buyer and the seller—the coins do not refer to the monarch, nor does their price imply his value. For the second issue, the caption “Selling. 5 baht a coin” was meant as a lighthearted joke, but it angered people in the context where most group members were making posts or comments mourning the king’s death. The comment “For fun you say. During mourning.” was meant as an objection, but it upset the poster, who went on to more strongly-worded replies. But even in the reply “If you love your father so much, follow him, die now,” his emotive use of language, evidenced by the switch to the vulgar second-person pronoun müng, was intended to attack the other commenters, not their symbolic father the way they took it to mean.
6. The Soymilk Shop Case (10 Facebook posts from 2015-2016)
- The prosecution: the defendant (whose residence was a soymilk shop in Phuket that was mobbed by hundreds after a selection from his post history was shared among locals) made the following Facebook posts defaming King Bhumibol or the monarchy:
1) From August 2015: “Sometimes inculcating the worship of idols is like a recruitment of down lines for some sort of cult.”
2) From November 2015: “There’s a buddha who has been reincarnated as a Thai… don’t you know? *So-and-so trying to brainwash me every day”
3) From June 2016: “Human=Human. Don’t walk on all fours like a tame animal under the feudal system.”
4) From July 2016: “If you approached the Buddha on foot, if you passed the Buddha in your carriage without stopping for Him to go first, would the Buddha put you in prison? If there were an inquiry into the Buddha’s assets, would you expedite the inquiry without any conditions? Did the Buddha ever ask for a grand pyre and funeral ceremony for Himself? Did the Buddha ever tell Buddhists to wear black in mourning after He reached nirvana? In order to compare someone to the Buddha, think back to whether the Buddha would put you in prison for various actions. If you’d get put in prison for it, then don’t compare that other person to the Buddha who loosed Himself from the chains of fortune and fake status…”
5) From July 2016: “People only write songs praising the feats of King Tak. Anybody going to write a song about the finale of King Tak? A song would make it easy to remember. According to so-and-so.”
6) From July 2016: “The movie theater owner should be happy and teary-eyed, methinks. The entire place burned to the ground but the picture frame, the wall, and some of the seats survived, how fortunate. The folders too.” [The picture frame was of King Bhumibol’s portrait. –trans.]
7) From August 2016: “Everything is ready. Take off the oxygen tubes.”
8) From September 2016: “When will the hazing system, the walk on all fours system that requires fealty go away from Coconut Shell Land? A huge fucking deadweight to the development of universal ideas. You are the master of your life, you can determine your thoughts and your course of action. How come you want someone else to be your master? Mindless cripple who worships without asking why.”
9) From September 2016: “Those who say that Tossakan and Rama, by virtue of being holy, cannot be criticized by humans who have brains, are like the last vestiges of a fallen absolute monarchy who have no clue what era they live in…”
10) From October 2016: “Arising, existing, expiring: such is nature. What’s the commotion?” and “555+…” and “Ever since Prayut became Prime Minister, this is the first time that everyone in Thailand keeps their ears peeled for what he’s going to say.”
The last post was made while King Bhumibol was gravely ill and the general public was posting messages wishing for His Majesty’s recovery. The defendant’s post had a satirical and derisive intent towards the people who were posting well-wishing messages, satirized and derided His Majesty’s illness as an ordinary occurrence, and contained a curse on the king to pass away. Arguing for the plaintiff’s case, a Thai language expert testified that “according to the principles of discourse analysis, the question of what the speaker is referring to cannot be considered literally; the communicatory context and the deeper meanings must also be looked into. Even though the defendant did not specify anyone’s name, but in context the reference can be inferred; it was a question posed rhetorically. Some of the texts also contained something like an attitude.” - The defense: The defendant testified that none of the posts were directed towards the king or the monarchy as alleged:
1) By the worship of idols, he was referring to the animistic idolatry of fortune goddesses, enchanted cloths, wooden images of the phallus, etc.; he addressed this subject constantly (exhibit: post history);
2) By the reincarnated buddha, he was referring to Phra Dhammachaiyo, of the Dhammakaya Temple, who claimed to be a buddha, while the brainwashing referred to the temple’s satellite television channel;
3). By walking on all fours, he was referring to hazing rituals in Thai universities; the issue was on the news at the time, and he had personally gone through hazing, which included punishment by walking on all fours, so he was exhorting upperclassmen to see freshmen as equals;
4) By the various Buddha comparisons, he was referring to Phra Dhammachaiyo, whom one must approach on all fours, and the Dhammakaya Temple, which organized a fantasy funeral for its founding nun as well as a grand pilgrimage through urban areas with road closures, affecting locals;
5) By songs about King Tak, he was referring to a song with aggressive beats by the band Carabao which in a concert setting usually led to violent quarrels, so he thought that more creative topics other than war should be written into songs; as for the finale of King Tak, he meant the period after King Tak managed to rule the country: the word choice may have miscommunicated it;
6) The comment about the movie theater burning down was meant to give moral support to the theater owner, rather than to be satirical at the king’s expense;
7) By the oxygen tubes, he was referring to the oxygen pump for ornamental crayfish he was raising (exhibit: a chat history between him and a friend from June to August 2016, including one day before the post);
8) The post about the system requiring fealty was a response to the news about a freshman who was told by an upperclassman to go into a chemical pond, which led to a life-threatening lung infection (exhibit: news article, and a friend’s comment under the post talking about having gone through hazing as well);
9) The comment about Tossakan and Rama being beyond criticism was a response to the news where the Culture Ministry deemed as inappropriate a tourism ad featuring a Tossakan working a Thai snack stall; he disagreed with the Culture Ministry and so characterized the old-minded as behind the times like vestiges of a fallen absolute monarchy;
10) The post about the nature of existence was not the first time he shared a generic Buddhist message (exhibit: a post from 2014); he posted it after rumors that King Bhumibol had passed away, but he didn’t believe the rumors, so he wanted to remind everyone to calm down and seek reliable information; both the “555+…” [laughter] and the comment about waiting to hear what Prayut had to say were not his words, but were shared from a separate post about Prayut meeting Jack Ma (exhibit: a news article) in which the poster made a joke about how Jack Ma resembled Thaksin Shinawatra. - The verdict: guilty of one count of lèse-majesté (a 5-year sentence, reduced to 3 years 4 months), revised on appeal to national security-related incitement (1 year 4 months). In seven of the posts, the defendant’s explanations were factually corroborated, reasonable, and convincing, while the plaintiff had no evidence from the contexts of those texts that would suggest otherwise. In the fifth post, even though the defendant made an inappropriate remark about King Taksin the Great, there was no link to King Bhumibol. In the sixth post, the defendant engaged in satire, not moral support to the theater owner as claimed, but this was because the defendant did not believe in things that were not provable by the scientific method, so he addressed those who had different beliefs about the supernatural—he did not directly refer to King Bhumibol. Only the tenth post constituted a violation of Article 112 because the defendant admitted to addressing the rumors about the king’s death. The phrase “What’s the commotion?” implied that the defendant was not alarmed by the prospects of the king’s passing, which meant it was not or should not be an important issue. During that time, everyone was very worried and sensitive, and if the rumors had been true, there would absolutely have been a great commotion and sorrow. The defendant’s references to death in relation to a still living person naturally sounded like a curse to the listener. And if a number of people went along with the defendant’s indifference to royal passing, national security would be affected. That many people gathered to drive out the defendant clearly evidenced that readers understood that the defendant expressed injuriousness to the king. Since the first portion of the post already constituted a violation, the judgment of the other two portions was not necessary.
The Court of Appeal reconsidered the post judged to be royal defamation. The court referred extensively to two witness testimonies on the plaintiff’s side. One, by a legal expert, suggested that the post be read in context, by which one would see that King Bhumibol was an implied reference, that the defendant’s other posts were on the edge of offense, that there was no mention of the virtues of the monarchy, that there were only disparaging and belittling comments like “Human=Human.” The other testimony was by the Thai language expert already quoted. On the basis of these two testimonies, the guilty verdict was upheld, but the crime of which the defendant was guilty was revised from lèse-majesté to incitement. - Analysis: the immediate contexts of the first nine posts were deliberately disregarded in order to give, like a character witness testimony, the impression of someone who likes to criticize the traditionalist culture that most people respect and adhere to. This impression facilitates the recontextualization of the tenth post, which repeats generic Buddhist teachings, to become injurious to the monarch. The Thai language expert witness on the plaintiff’s side wasn’t wrong in saying that “in discourse analysis, to understand the reference a person is making, one cannot merely consider the words, but must also look into their communicatory context and deeper meanings.” But the problem is, what communicatory context shall be taken into consideration in order to understand the speaker’s intent? The first nine posts refer to issues and persons entirely unrelated to the monarchy. Furthermore, if one keeps in mind that a person will over their lifetime make thousands upon thousands of statements that may be in conflict with one another, or refer to subjects entirely unrelated to statements before and after, each statement’s context of origin must be considered first before all else. In pragmatics, the three levels of context that aid in the interpretation of meaning do not encompass the usage of a recontextualization such as this indictment that was created out of statements from disparate occasions and contexts. The problem of recontextualization becomes even clearer in online communication, especially on Facebook, where cap or screen capture is a practice that is vulnerable to misinterpretation from a viewpoint distant in time and occasion. Just like what happened in this case, where posts dating from April 2015 to October 2016 were stitched together to prosecute the defendant under the overarching context of one story among many in October 2016: the final days of King Bhumibol.
Research by Isara Choosri and Chusak Pattarakulvanit
Introduction by Ida Aroonwong
Reporting and translation by Peera Songkünnatham