different political standpoints are agreed on many issues. Problems with the legal provision itself High penalties: The penalty of three to 15 years’ imprisonment is too high and comparable to the penalty for the offence of preparation to commit insurrection, manslaughter, or kidnapping of a minor under 15 years of age. Even the minimum penalty of three years is too high. Although the case could be trivial, the Court is left with no discretion but to impose at least this penalty. Vague terms: Besides “defamation”, which has quite a clear definition in the Penal Code, there are some vague elements of the crime, particularly the terms “insult” and “threaten”, which have been interpreted widely, covering a variety of acts or expressions. In practice, when the court has needed to explain how expressions were an alleged offence under Section 112, it has often failed to specify whether the allegedly infringing messages were defamation, insults or threatening, but has written a verdict to cover all three words. Same level of protection: Section 112 protects persons holding different positions, including the King, the Queen, the Heir-apparent or the Regent, equally and indiscriminately, even though the penalty for damage done to the King should be more severe than for damage done to other personalities. Offence against security: Section 112 is included under the Title on “Offences relating to the Security of the Kingdom”. Therefore, its interpretation and enforcement can be cited for the sake of maintaining national security, and that would do a disservice to the defendants. Problems related to its enforcement Broad interpretation: Though an offence against Section 112 must be confined to defamation, insult and threatening of the persons protected by the legal provision, including the King, the Queen, the Heir-apparent or the Regent, in reality it has been subjected to extensive interpretation and use in order to criminalise a variety of actions without clear boundaries. It is difficult for ordinary persons to understand which kind of act constitutes the offence. The broad interpretation includes charges against persons who criticise King Rama IX’s dog, King Rama V, and King Naraesuan, who was the monarch over 400 years ago. From its legal provision, Section 112 protects the persons holding four positions only and does not cover the “monarchy”. Therefore, a criticism about the monarchy as an institution should be permissible without criticising the persons or making other criticisms about other personalities relating to the monarchy. The other royal family members, the Privy Council, close aides, the Crown Property Bureau and the Royal Project are not protected by the legal provision, and any criticism of them should be permissible. But the general climate in Thai society and politics has made the boundaries of possible expression very dubious and risky to touch upon. Anyone can initiate a case: Any ordinary person can bring a charge against another person invoking Section 112. The law does not oblige the injured party to make the complaint. As a result, Section 112 has been used to accuse many people, especially political opponents or business competitors. In addition, given that Section 112 has been used for serious criminalisation, it has been abused to take revenge upon another person, even among people who are related to each other. Some examples are the case of an older brother who took his own younger brother to court on this charge by alleging that he had made lèse majesté remarks in their house,2 or the cases in which fake Facebook pages have been created to retaliate against another person, accusing them of committing a lèse majesté offence as a result of personal conflict.3 Climate of fear: Law enforcement officials involved with prosecution under Section 112 have often found themselves subject to great pressure from society and as a result, it would be hard for them to make any discretion in favour of the defendants, i.e., by refusing to indict the case, allowing the alleged offenders to be released on bail, or dismissing the case. Less than half of the lèse majesté accused can access the right to bail due to the high amount of security, around 400,000 baht (USD 12,000), and the lack of court approval. The police usually pass the cases on to public prosecutors and the prosecutors issue prosecution orders in almost all cases. When the cases are in the hand of courts, which also theoretically exercise their judicial power on behalf of the King, the judges also exercise their legal knowledge under the traditional culture and the climate of fear. Military court procedure: On 25 May 2014, three days after the military seized power, the NCPO issued Announcement No. 37/2014 to establish a new practice, under which civilians would be tried in military court for charges of an offence against the King and royal family, charges of an offence against national security, charges of defying any of the NCPO’s 2 3 “Yutthapoom: 112- Brother vs Brother”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/en/case/439 “Sasivimol: Posted messages on Facebook”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/en/ case/681 120 / Unshackling Expression