Thai Legal Studies (2026) Vol. 6 No. 1 | 16–35
https://doi.org/10.54157/tls.283030
© 2026 by Angelo Sathayu Sathorn

This is an open access article, distributed under the terms of the Creative Commons Attribution License (CC BY 4.0, http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Nationalistic History in Thai Constitutional Court Rulings: Article 112 of the Thai Criminal Code as an (Un)Popular Law

Angelo Sathayu Sathorn*

Abstract

Ever since youth-led protests erupted in 2020, Thailand has seen an unprecedented rise in the number of political prisoners. Many individuals who exercised their right to freedom of expression to openly criticize the Thai monarchy have found themselves indicted and detained under Article 112 of the Thai Criminal Code. This paper aims to challenge the nationalistic historical approach evident in Thai Constitutional Court rulings related to Article 112 by applying non-traditional narratives of Thai history. The argument is that the Court cannot claim that limitations on criticism of the monarchy and Article 112 are part of the “Spirit of the Thai National Community” because the Court failed to consider alternative viewpoints on Thai history besides “Royal Nationalism.” Additionally, the Court neglected the legal history of the lèse- majesté offense and how it demonstrates that the offense was a creation induced by the Thai ruling class without any popular consensus.

Keywords: Nationalism — Thai Constitutional Court — Article 112 — Lèse-majesté — Thai history — Rule of law

I. INTRODUCTION

A. Article 112 and the “Spirit of the Thai National Community”

In this article, the author will explore the question of whether it is valid for the Thai Constitutional Court to claim that Article 112 of the Thai Criminal Code is part of the “Rule of Law” and the “Spirit of the Thai National Community” (jit winyan prachachat thai), as argued by the Court in various rulings related to the lèse-majesté offense. This article is divided into 4 parts: (1) introduction, (2) the Court’s failure to consider anything apart from “Royal Nationalism,” (3) the Court’s failure to consider the legal history of the lèse-majesté offense and exclusion of the people, (4) conclusion.

Article 112 of the Thai Criminal Code criminalizes “defaming, insulting, or threatening” the Thai king, queen, heir-apparent, or regent with punishment ranging from three years’ imprisonment up to a maximum of 15 years’ imprisonment. The application of the law in conjunction with other laws, such as the Computer Crimes Act B.E. 2550 (2007), has resulted in disproportionately severe sentences of up to 25 or 50 years’ imprisonment.¹

To understand the relation between Article 112, “Rule of Law,” and the “Spirit of the Thai National Community,” we must first understand how the Thai Constitutional Court’s view of “Rule of Law” is mostly in line with universal standards, except for issues regarding the Thai monarchy. This is most evident in Constitutional Court Ruling No. 28–29/2555 (2012).² The ruling is a prime example of how the Court has been keen to insert “Thai-style” values into its interpretation of the Rule of Law, particularly concerning how Article 112 of the Thai Criminal Code is both constitutional and compatible with the Rule of Law in Thailand. This is supported by Kla Samutwanit’s analysis of various Constitutional Court verdicts, in which he highlights how the Court has referred to “Rule of Law” as a “principle of naturally-appearing justice that contains universal values.”³ Kla argues that the “universal values” referred to by the Court are evidence of a “universal” aspect of the Court’s interpretation of Rule of Law, as the Court often refers to international treaties or conventions in conjunction with the Rule of Law.⁴ Nonetheless, in Constitutional Court Ruling No. 28–29/2555 (2012), the Court ruled that Article 112 of the Thai Criminal Code was constitutional, reasoning that the severe penalties were compatible with Rule of Law as they were intended to “preserve public order and good morals.”⁵ What is highly interesting is how the Court explained the legitimacy of the law, which is done by referring to Thai history. Particularly it invoked “the honor exhibited by the Royal Institution (which) sustained the nation’s honor and preserved the essential elements of the democratic form of government with the King as head of state.”⁶ Kla argues that, through such ruling, we can infer that there has only been one distinct “Thai-style” aspect that has been inserted into “Rule of Law” in Thailand, which is the Thai State’s duty to protect the Monarchy’s status as the nation’s “highest institution.” Such purpose and duty imposed on the Thai State, therefore, justifies the criminalization of speech and heavy penalties imposed and allows Article 112 to fit nicely in the Thai Rule of Law paradigm, in the mind of the Constitutional Court.⁷

Yet, we are still left with many questions. How does the protection of an institution, supposedly limited by a constitution, trump the fundamental rights of the people, in the mind of the Constitutional Court? What facilitates this “royalist” interpretation of the “Rule of Law”? The author believes that such questions can be answered by understanding that the key factor facilitating a “royalist” interpretation of “Rule of Law” in Thailand is what the Thai Courts have referred to as the “Spirit of the Thai National Community.” It is critical to note that, ever since the concept was established in the aforementioned Constitutional Court ruling of 2012, Thai courts have continued to utilize and expand such a concept. This is supported by the findings of Thai legal scholar Worachet Pakeerut. Worachet has explained how the Thai Constitutional Court has never defined what the “Spirit of the Thai National Community” is, and its definition must be inferred from a judgement of the Central Labor Court concerning a case where an employer requested the Court to fire his employee who was the head of a labor union.⁸ The employer wished to fire his employee, as the employee had appeared on a television program wearing a shirt that had a statement which the employer deemed critical of the monarchy. In giving its answer on the issue of whether the employer’s reasons for firing his employee were just, the Court ruled in favor of the employer. Reasoning that “upon considering the Spirit of the Thai National Community it can be seen that, the Spirit of the Thai National Community is distinct from other nations, of which it is widely accepted or known that the Thai people have respect and venerate their king, nobody may defame or insult him, therefore the employer’s firing of his employee due to the aforementioned incident is not an unjust firing of an employee.”⁹ The link between “Spirit of the Thai National Community” and “Thai-style” Rule of Law is, as explained by both Kla and Worachet, how they both rest on the same set of values. The “good morals” of the Thai people as demonstrated by their respect and veneration of the monarchy, and the particularity of such “Thai-style” morals, which makes them worth adhering, protecting and applicable to even Thai political society and legal society. Kla thus argues that “Spirit of the Thai National Community” and “Thai Rule of Law” can be used interchangeably as they mean almost the same thing as both are sets of the same values which serve as a “distinct” part of Thai society and work as “additions” that can expand the scope of interpreting written law.¹⁰ In this paper, the author will refer to such a set of values as the “Spirit of the Thai National Community.”

From the aforementioned analyses, it is clear that the “Spirit of the Thai National Community” is the crucial connector between Article 112 and “Thai-style Rule of Law,” in the eyes of the Thai Constitutional Court. If one were to challenge this view, one must question whether it is truly valid to claim that Article 112 is part of the “Rule of Law.” This makes the research question of this article highly relevant in a time like now. More and more, people are realizing the socio-legal implications of the Constitutional Court’s rulings, particularly Constitutional Court Ruling No. 28–29/2555 (2012), which will be explained in the following sub-section.

B. Socio-Legal Implications of Constitutional Court Ruling No. 28–29/2555 (2012)

Ever since the Constitutional Court first invoked the idea of a “Spirit of the Thai National Community” in 2012, arguments along spiritual lines have continued to be invoked by the Court, particularly in cases concerning the Thai monarchy. This has led to significant socio-legal implications and worrying consequences for the development of Thai democracy. In terms of the legal consequences, a number of worrying legal precedents have been set regarding the employment of spiritual arguments, restrictions on possible amendments to Article 112, and the determination of the intention of individuals or political parties that propose changes to Thailand’s “lèse-majesté” law. These legal consequences have also rippled into socio-political effects, particularly the reinforcement of the “fear factor” of Article 112 and the dimming possibility of any future change in Thai laws regarding the monarchy, whether driven by parliament or the people.

With regards to the continued employment of spiritual arguments by the Thai constitutional court, this can be seen in Constitutional Court Ruling No. 19/2564 B.E. 2564 (2021). This ruling concerned the actions of protest leaders, particularly their speeches regarding the monarchy at a demonstration at Thammasat University’s Rangsit Campus on 10 August 2020. The Court ruled that those actions constituted the “exercise of rights and freedoms to overthrow rule by democracy with the king as head of state, according to Article 49 Paragraph 1 of the Thai Constitution (B.E. 2560).”¹¹ What is most interesting is how the Constitutional Court’s explanation before arriving at such a conclusion is rooted in an interpretation of Thai history and its supposed spiritual implications. This can be seen by how the Court invokes the history of Thai kings “leading the military to fight to always protect and expand the kingdom in previous eras” and their supposed adherence to Buddhist principles of governance to explain that “[t]he king therefore has been respected and the spiritual center inseparable from all Thai people for many hundreds of years.”¹²

Spiritual arguments were also raised by the Court in Constitutional Court Ruling No. 3/2567 B.E. 2567 (2024). This case concerned the Move Forward Party’s (MFP) proposal to amend Article 112. The Court ruled that such a proposal, similarly to the previous ruling discussed, constituted “the exercise of rights and freedoms to overthrow rule by democracy with the king as head of state according to Article 49, paragraph one, of the Constitution.”¹³ Spiritual arguments were employed to explain how offenses against the monarchy are inextricably linked to offenses against national security, which is supposedly justified by how “he (the king) is the heart of the people in the nation and preserves the strength and unity of the people in the nation.”¹⁴ MFP’s proposal to make the Royal Household Bureau the only possible complainant in an Article 112 case, was also deemed to be making “commission of offenses of violation of Article 112 into actions that do not impact the nation or people, even though the commission of such offenses are an attack on the hearts of the Thai people who respect and venerate the institution of the monarchy.”¹⁵

Concerning precedents relating to possible amendments to Article 112, the Court has concretized the standard set by Constitutional Court Ruling No. 28–29/2555 B.E. 2555 (2012), which prohibits any amendment that would, in effect, make the standard of proof in an Article 112 case the same as defamation of an ordinary citizen. This can be seen in Constitutional Court Ruling No. 3/2567 B.E. 2567 (2024). In this decision, the Court explicitly refers to Constitutional Court Ruling No. 28–29/2555 (2012) as a precedent about how violations of Article 112 are more serious offenses than defaming or insulting ordinary citizens under Article 326 of the Thai Criminal Code. This was done in the context of justifying the Court’s argument that MFP’s proposal to amend the law, so that the standard for burden of proof in an Article 112 case would be the same as defamation for an ordinary person, would violate the Thai monarch’s inviolability and “position of revered worship.”¹⁶

With regard to the intention of individuals or political parties who propose amendments to Article 112, a similar trend can be observed in both aforementioned rulings. In both rulings, the Thai Constitutional Court did not consider subjectively the intention of parties who propose amendments or abolishment of either Article 6 of the Thai Constitution¹⁷ and Article 112 of the Thai Criminal Code. This can be seen by how the Court refused to consider the motives provided by the defendants in both rulings. Instead of analyzing each defendant’s intention subjectively, the Court viewed that the intention of the defendants as a whole could be objectively inferred by the mere nature of both Article 6 of the Thai Constitution and Article 112 of the Thai Criminal Code, respectively. Particularly, its nature as providing protection to the monarchy. In Constitutional Court Ruling No. 19/2564 (2021), the activists were deemed to have intent to “destroy the monarchy” for daring to propose the abolishment of Article 6 of the Thai Constitution, whilst in Constitutional Court Ruling No. 3/2567 (2024) the 44 MPs from MFP were also deemed to have intent to “destroy the monarchy” for a proposal to amend Article 112 through legislative means.¹⁸

The socio-political effects of such rulings become apparent once we consider the “fear factor” surrounding Article 112 in Thai society. The “fear factor” refers to the stigmatization of any form of criticism of the Thai monarchy. By employing spiritual arguments to render the aforementioned rulings, the Thai Constitutional Court has set a dangerously low bar for an act to constitute “destroying the monarchy.” Even minute criticism of the monarchy can be equated as acts that damage the Thai nation as a whole. This stigmatizes any speech that may be deemed critical of the monarchy, creating fear for those who want to express their views on the institution but do not want to be branded as enemies of the state, whilst also creating a sense of alienation for those who have already had their speeches branded as critical of the Thai monarchy.¹⁹ The lower the bar, the higher the possibility of acts to constitute the serious accusation of “destroying the monarchy,” and thus the risk and fear for society increases. Thus, Article 112’s “fear factor” is further compounded by how the Constitutional Court inferred the intentions of the defendants in both rulings. The enthusiasm of Thai Courts to not consider subjectively the intention of parties who propose amendments or abolishment of either Article 6 of the Thai Constitution and Article 112 of the Thai Criminal Code, and the fear created by such precedent, further dims the possibility of any future change in Thai laws regarding the monarchy, whether driven by parliament or the people. Ever since the MFP was dissolved by the Constitutional Court in August 2024²⁰ no political party in Thailand has yet to propose a similar policy. Furthermore, despite issues in criminal procedure being prominent in litigation involving Article 112, the continued invocation of the Constitutional Court’s ruling in 2012 is becoming an omnipresent barrier deterring any future amendments by the Thai people and their elected representatives. Remedying the issues of Article 112 seems almost inconceivable within the Constitutional Court’s conception of “Thai-Style Rule of Law.”

II. FAILURE TO CONSIDER ANYTHING APART FROM “ROYAL NATIONALISM”

A. Section Introduction

We have established that the Court views the “Spirit of the Thai National Community” as the justification for linking the existence of Article 112 to “Thai-Style Rule of Law.” In this section, the author will demonstrate that this argument rests on an interpretation of Thai history that is rooted in “Royal Nationalism” (rachachatniyom). Furthermore, the author will argue that the Court’s interpretation of Thai history overlooks contemporary debates and developments surrounding the formation of a Thai nation-state.

B. Viewing History Through A Yellow Tinted Lens: “Royal Nationalism” in the Thai Constitutional Court’s Interpretation of Thai History

1. “Royal Nationalism” in Constitutional Court Rulings.

Through the rulings discussed, we can see that in the Court’s eyes, both concepts, whether the idea of a “Thai National Community” or its “spirit,” are formulated based on historical grounds. As any student or expert in history would be aware, there is rarely any one certain definite narrative of history. History may be made up of supposed facts, but some “historical facts” continue to be debated to the present day, especially when new evidence is introduced. Furthermore, the body of historical academia is not limited to facts alone; its epistemological nature must also be considered. Facts are rarely considered as standalone objects of historical observation but are often also tied to varying interpretations of such a set of facts derived from a diverse range of primary and secondary sources, and by a multitude of people. Put simply, whilst it is undeniable that there is some form of “truth” in the study of history, historical academia is made up of various interpretations of history, meaning even the Thai Constitutional Court’s invocation of Thai history is, at the end of the day, merely its own interpretation of Thai history. This, therefore, begs the question of what the characteristics of the historical narrative invoked by the Thai Constitutional Court are, and what they tell us about the type of history being invoked by the Court.

As already touched upon, the author aims to argue that the Thai Constitutional Court has employed an interpretation of Thai history that is rooted in “Royal Nationalism.” This requires an understanding of what the concept of “Royal Nationalism” actually is.

The term “Royal Nationalism” was first coined by prominent Thai historian Thongchai Winichakul. In his highly influential work titled Royal Nationalism (rachachartniyom), Thongchai highlights how, ever since the reign of King Chulalongkorn (1868–1910), Thailand has been ideologically gripped by a form of nationalism that he calls “Royal Nationalism.” Under this conception of nationalism, being “Thai” or not was defined by whether or not such a person was within the influence or baramee of the Thai monarchy.²¹

This is supported by the views of another Thai historian, Tanapong Luekajornchai. Tanapong summarizes the concept of “Royal Nationalism” as coined by Thongchai in the following terms: an imagined community whereby “subjects” from diverse cultural and social backgrounds are all united beneath the influence or baramee of the Siamese king.²² Royal Nationalism is complemented by another critically acclaimed work by Thongchai, an earlier release titled Siam Mapped: History of the Geo Body of a Nation.²³

However, to understand “Royal Nationalism” apart from looking at Thongchai’s work, we must also look at the work of David Streckfuss. Streckfuss has argued that efforts to integrate other ethnic and cultural groups into a homogenous “Thai” identity through a “National Integration” program did not occur until the early years of Thai democracy underneath the “People’s Party” (khana ratsadon) (1932–1947) and particularly during Field Marshal Plaek Pibulsongkram’s first tenure as Prime Minister (1938–1944).²⁴ Nonetheless, Streckfuss still agrees with Thongchai that the creation of “Royal Nationalism” in the late 19th century led to the infusion of Thai royalty with Thai nationhood, which has been intertwined ever since.²⁵ This is supported by Tanapong Luekajornchai’s analysis of Streckfuss’s work.²⁶

From the findings of Thongchai Winichakul and Streckfuss, we may conclude that “Royal Nationalism” has four defining features: (1) an imagined community that is spiritually linked to the Thai king, (2) “subjects” or the people which are culturally and socially diverse, (3) a spiritual link between “subjects” and the king and his influence or baramee as the basis of the link between the people and the nation, and (4) royalty intertwined with nationhood. These are all features which may be found in the aforementioned rulings of the Constitutional Court.²⁷

In all three decisions, the Court alludes to a longstanding and distinct “Thai people” that have always been spiritually tied to their king, or a “Thai spirit” in which the king forms the center of such spirit. This is most apparent in the Constitutional Court Ruling No. 19/2564 (2021).²⁸ Therefore, we can see that the Court views that there is a distinct “Thai” people; there is no mention of any cultural or social diversity. Furthermore, the Court deems that there has been a “Thai” community existing for a long time that could and have bound themselves to the Thai king. The spiritual arguments invoked by the Court across all three rulings, and the invocation of the achievements of “Thai” kings as seen in Constitutional Court Ruling No. 19/2564 (2021), reveal how the Court believes that the Thai monarchy and its kings, past and present, have done a lot of “good” acts which serve as a justification for the spiritual nature that the Court employs to describe the link between the Thai people, nation and monarchy. Therefore, we may determine that arguments resting upon the spiritual nature of the link between the Thai people and the monarchy and the intertwinement of Thai nationhood with Thai royalty are omnipresent in all the aforementioned rulings. Additionally, although baramee or karma are not explicitly mentioned by the Court, we may say that the Court has alluded to such Buddhist conceptions through references to Buddhist notions of kingship.

The all-powerful kings leading the “Thai” people into successful wars of expansion allude to notions of a devaraja or god-king, whilst the close bond between “subject” and king alludes to notions of a “fair” and “just” king that is loved by all, which is the concept of dhammaraja or the just king.²⁹ These two conceptions of kingship mean that the king can accumulate an enormous amount of karma and thus, in a way, becomes a vessel of karma, whereby others can also receive good karma by being in the presence of the king’s baramee. Although not explicitly mentioned, these concepts underpin the justifications that the Court uses to justify the spiritual link between the Thai nation, people, and king. Hence, we can say that elements of “Royal Nationalism” are present in the rulings of the Thai Constitutional Court, and thus the jurisprudence of the Court does not reflect a purely nationalistic interpretation of history, but more so reflects a certain type of interpretation of nationalism that was created by the Siamese ruling class in the late 19th century.

C. The Constitutional Court’s Interpretation of History in a Comparative Perspective

1. Introduction.

In this final subsection, the author aims to engage in an analysis of the Constitutional Court’s interpretation of history, comparatively in conjunction with an analysis of the contemporary viewpoints regarding the formation of the Thai Nation-State and national identity. The author will use this to argue that the Thai Constitutional Court has overlooked the variety of viewpoints regarding the formation of the Thai Nation-State and national identity, particularly those rooted in a more democratic approach. This primary argument will be supported by a sub-argument, which is that the Court views modern Thailand through the lens of an ancient, customary, and feudal state or rat jareed, along with failing to distinguish the concepts of a “state” and a “nation.”

2. Viewing modern Thailand through the lens of a Rat Jareed & Failure to Distinguish between “Nation” and “State.”

With regards to the first argument, the author would like to once again highlight Constitutional Court Rulings No. 28–29/2555 (2012), 19/2564 (2021), and 3/2567 (2024). In these rulings, the Court has completely overlooked the possibility that a “Spirit of a Thai National Community” has to be formed by a nation-building process. Instead, it is seemingly subscribing to the view that an ancient customary state existing before the 19th century was transplanted into the modern nation-state of Siam and continued on even after the nation became known as Thailand. This is perplexing, considering that contemporary research and alternative perspectives point to a transition into the modern era that was not so smooth. Hence, it would be hard to claim that modern Thailand is an ancient customary state that has persisted, unscathed and unchanged by its own interactions with colonial powers from the other side of the world.

Nowadays, it is generally accepted that “nation-states” as we understand them today did not exist for the entirety of human history. The idea of a “nation” as a defined and longstanding geopolitical entity did not exist until at least after the Enlightenment, when “nationalism” began to arise in the West as one of the many ideologies that challenged feudalism and monarchy. In the context of Southeast Asia, such an idea never reached its shores until European colonialism facilitated the entry of “modern” concepts of nation-states with a longstanding population and defined territory. Once we understand this, it becomes clear that there can be no natural “transplant” of an ancient state into a “modern” nation-state. A nation-state, at least in our “modern” conception, can only be created by a process that binds the people, physically and mentally, to the national community and identity of that nation-state. This is what has often been referred to as a “Nation Building Process” or “National Assimilation Process.” By subscribing to the idea that a “Spirit of a Thai National Community” has always existed, the Court inevitably assumes that an ancient customary state of “Thais,” existing before the 19th century, was transplanted into the modern nation state of Siam and continues to exist into the present day. Essentially, Thailand in the modern day is no different from the feudal Ayutthaya Kingdom of the past.

The Court’s interpretation of history, which is rooted in “Royal Nationalism,” clearly overlooks the idea of a “Nation Building Process.” This view reflects the perspectives of a small minority of Thai historians, which have been convincingly challenged by works of various academics that came after. This is once again supported by Tanapong Luekajornchai’s arguments. Tanapong provides a comprehensive overview of the contemporary narratives and debates surrounding the question of when Thailand, as a national identity and polity, came into existence, in his article titled “When did the Thai Nation (State) Become?: When the Blind seek a Thai Nation State.”³⁰ In the article, Tanapong highlights that the contemporary narratives surrounding the formation of the Thai Nation State can be categorized into two schools of thought: those who view it as a process, and those who do not view it as a process. The latter is also further subdivided.³¹ Tanapong explains that those who advocate for the “non-process” view believe that the formation of a “State” and a “Nation” go hand in hand and occur simultaneously.³²

In the context of Thailand, supporters of the “non-process” narrative view that a “Siamese Customary State” (ratjareed siam) already existed for thousands of years and predated the modernization era (1885–1910) in the reign of King Chulalongkorn (Rama V), and thus argue that such customary state was merely adapted by Chulalongkorn into the “Siamese Nation State” (ratchart siam). Such a view excludes the necessity of any “nation-building” process, and thus the question of whether public participation is required does not arise within this school of thought. In this view, the exact year of the formation of a Thai nation state is 1892, in line with the creation of a new system of administration called “thesapiban,” in which lands under the control of the Siamese State were divided into cantons, towns, and districts, created by Prince Damrong Rajanubhab.³³ Such a system was later fully institutionalized by the promulgation of the “Executive Service Regulation of the Kingdom of Siam Act” in 1933. Although the Court makes no explicit mention of the aforementioned events, the exclusion of considering any “nation-building process” is clearly seen in the jurisprudence of the Court. In the wider sense, the Court’s jurisprudence aligns with the views of supporters of the “non-process” narrative of Thai history.

The Court’s persistence in continuing to view modern Thailand through the lens of an ancient customary and feudal state may explain why the Court failed to separate the concepts of “state” and “nation” from one another. The denial of a nation-building process means there is no “nation” or “national spirit” to be artificially created and placed within a “state.” The failure to separate the two concepts may seem minuscule at first glance, yet it has consequences for the development of Thai democracy. It is an inherently undemocratic approach, which does not factor in the role of the people, ordinary citizens, in determining what a “Thai” state and “Thai” national identity should look like.

III. THE COURT’S FAILURE TO CONSIDER THE LEGAL HISTORY OF THE LÈSE-MAJESTÉ OFFENSE AND EXCLUSION OF THE PEOPLE

As previously established, the Thai Constitutional Court has constantly reaffirmed that the “Spirit of the Thai National Community” has always existed and has always justified the existence of lèse-majesté in Thai law and society. This section aims to show that this view overlooks the developments in the recent legal history of Article 112. This will be demonstrated through the author’s two main arguments. Firstly, the Court’s belief that the lèse-majesté offense has not changed since the feudal era is in contrast to the actual history of Article 112. Secondly, the Court’s view is challenged by an observable historical relation between sovereignty and lèse-majesté; how the shift in the concept of sovereignty has influenced the use of the lèse-majesté offense throughout Thai history.

Academia on the legal history of Article 112 usually divides such history into distinct eras, starting from its pre-modern origins in the feudal era³⁴ and continuing with developments during Chulalongkorn’s modernization,³⁵ developments in the era of the “People’s Party” (khana ratsadon), developments during the dictatorship of Field Marshal Sarit Thanarat and the revival of royalism,³⁶ before ending at developments in 1976 after the 6th October Massacre at Thammasat University.³⁷ The wording of the law has been untouched since then. However, the first argument will be explained through an analysis of the law’s development in two periods: “Modernization” (1885–1910) and “Post-Revolution” (1932–1945). The second argument will focus on the “Post Revolution” period, which the author will argue is the closest point Thailand has gotten to abolishing the law. Therefore, for this essay, only the developments in the two aforementioned periods will be explored.

With regards to the first argument, although the Court supports its justification through an interpretation of Thai history, in neither of the rulings mentioned throughout this paper did the Court explicitly mention or analyse the legal history of Article 112. The Court had essentially overlooked the history of the criminalization or punishment of speech against royalty throughout Thai history.³⁸ This fails to reflect the actual historical development of the law, because the Court is essentially overlooking the historical development of the law from the feudal “lèse-Majesté” or “mihn prabaromadechanupab” (หมิ่นพระบรมเดชานุภาพ) to the modern Article 112. This puts the Court in a position where it is unable to separate the two from each other. Although the two terms have been used interchangeably throughout the essay for the sake of efficiency, legally and historically speaking, they are not the same thing. This is because regardless of how we view the development of Article 112 in the age of a “modernized” legal system, it is clear that lèse-majesté in the feudal era did not operate under the same conception as under a more (but not completely) modernized legal system under Chulalongkorn and certainly not completely the same as the modern version of the lèse-majesté offense, which has gone through many developments since then.

The historical and legal distinction between lèse-majesté and Article 112 can be seen through Chulalongkorn’s modernization, the overthrow of absolute monarchy in 1932, and an alternative interpretation of the monarch’s “position of revered worship.” This is supported by the works of Eugénie Mérieau and Worachet Pakeerut. Mérieau identifies the Hindu Manu Code as a particularly influential aspect of Hindu and Brahmic thought on lèse-majesté in the feudal era.³⁹ Particularly influential was its wording, which provided for kings as living embodiments of gods, in which a commoner may not stare directly at them, or else they will be blinded.⁴⁰ Mérieau also points out how such Hindu and Brahmic concepts were replaced when the law was “Europeanized” during the reign of Chulalongkorn.⁴¹ Furthermore, Worachet points out how, paradoxically, the penalties for “lèse-Majesté” in the era of Absolute Monarchy were less severe than the contemporary Article 112.⁴²

The historical and legal basis for a distinction between the two is most clearly explained by Worachet. He has argued that Article 112 should not be interpreted in a way that is in line with pre-1932 political thought.⁴³ Essentially, Article 112 should not be conceptualized under an absolute monarchy or feudal framework. Worachet bases this argument on the belief that the modern Thai monarchy post 1932 is a “constitutional organ,” meaning an institution created by the constitution, and therefore, even the king can technically violate the constitution.⁴⁴ This belief rests upon Worachet’s interpretation of Article 8 of the Thai Constitution B.E. 2550 (2007) (now Article 6 of the 2017 Thai Constitution), particularly the king’s “position of revered worship” (pen tee kaorop sakkara). Worachet argues that under an absolute monarchy, punishing any criticism of the monarch or royalty is justifiable because the king is literally in a “position of revered worship.” However, since Thailand changed to a democratic constitutional monarchy in 1932, the interpretation of Article 8 must be in line with this new democratic regime, and courts can no longer interpret the monarch’s “position of revered worship” in the same manner as before 1932. Therefore, Worachet explains that the king’s “position of revered worship” and inability to be “subject to any accusation or charge” under Article 8, means that the king must not do anything which would subject himself to accusations such as expressing political opinions, and only by remaining non-political does the monarch stay in a position of “revered worship” and will not be subject to accusation or charge.⁴⁵ This interpretation of Article 8, whereby it acts more as a limitation on the monarch rather than a justification for Article 112, is most likely influenced by the work of Thai legal scholar, Yud Saeng-Uthai.⁴⁶

Concerning the second argument, the shift in the concept of sovereignty in Thai history, and its influence on the use and wording of Article 112 in Thailand, can be most seen in the period between 1932 and 1945. This is because the early years of Thai democracy, from 1932 to 1945, may be considered the closest point Thailand has gotten to abolishing its lèse-majesté law. Mérieau has highlighted how, although the revolutionaries were reluctant to change or remove the provision from the criminal code, the law was not widely used during the “People’s Party” era and was essentially suspended in purgatory.⁴⁷ Mérieau also points to how the revolutionaries tried to mitigate the uncertain nature of lèse-majesté proceedings caused by the law’s broad wording, by limiting such a wide scope through the use of “good faith towards the constitution” as a justification that could excuse a person of liability.⁴⁸ Essentially, after the revolution in 1932, sovereignty had shifted from being held and exercised by the king with absolute power to being held by the people and exercised through the three branches of government under a constitution. Under such circumstances, justifying that defamation of the king constituted defamation of the nation became considerably harder, driving the People’s Party’s aforementioned efforts in mitigating the law’s wide-reaching scope through constitutional exceptions. This is also supported by the works of David Streckfuss and Somchai Preechasilpakul.⁴⁹ Sarit Thanarat’s rise to power through a military coup in 1957 is often touted as the beginning of the end for a more lenient employment of lèse-majesté offenses as seen in the “People Party” years.

In summary, this section aimed to show that the Court’s historical reasoning behind its justification for Article 112 overlooks recent developments in the legal history of Article 112. This was demonstrated by showing that the Court does not believe that the modern Article 112 has changed from the feudal “lèse-Majesté,” despite there being a historical and legal basis for separating the two, as seen by an analysis of the “modernization” period (1885–1910) and the “post revolution” period (1932–1945). Furthermore, it was demonstrated by showing that shifts in the concept of sovereignty have also influenced the wording and use of Article 112 throughout Thai history, and this can be most seen in the law’s developments between 1932 and 1945.

IV. CONCLUSION

Throughout this essay, we have tried to find the answer to the main research question, which is whether it is valid for the Thai Constitutional Court to claim that Article 112 of the Thai Criminal Code is part of the “Rule of Law” and the “Spirit of the Thai National Community” (jit winyan prachachat thai).

To answer the question, a number of things were established. Firstly, we established that the “Spirit of the Thai National Community” has been used as the justification for the compatibility of Article 112 of the Thai Criminal Code with the Rule of Law in Thailand by the Thai Constitutional Court. The complete infusion of a law that criminalizes defaming, insulting, or threatening the monarch and certain members of the royal family and punishes such actions with severely disproportionate jail time, with “Thai-style” Rule of Law, has set a precedent for the Constitutional Court, post-2012, to employ the aforementioned justification more liberally and with more far-reaching political implications. Implications particularly on the ability of Thai society to address apparent issues in the law’s broad wording, its usage as a political weapon, and the fear caused by its existence. Secondly, we established that the Court has employed a narrow interpretation of history that is based on what Thongchai Winichakul defines as “Royal Nationalism” and how it overlooks contemporary narratives and discourses on Thai history. The Court failed to distinguish between the concepts of a “State” and a “Nation,” leading it to overlook the view that national identities are not naturally appearing and formed through a process. We also established how this view is inherently undemocratic as it overlooks the participation of the people in such a process. Essentially, the Court views modern Thailand and its citizens through the lens of an ancient, customary, and feudal state. Thirdly, we established how it overlooks the legal history of the lèse-majesté offense in Thailand. Particularly, we established how the Court does not believe that the offense has changed since the feudal era, and how this contrast to the real history of Article 112. This was shown through differentiating the feudal “lèse-Majesté” and the modern Article 112, and the historical and legal basis for such differentiation. Additionally, we also established that the Court’s view is challenged by an observable trend throughout Thai political and legal history, which indicates that shifts in the concept of sovereignty influenced the wording and use of the lèse-majesté offense in Thailand. This was done by highlighting the period between 1932 and 1945, which is the closest point Thailand has ever gotten to abolishing the law.

The three main points established in this paper point to a grand contradiction in the Court’s jurisprudence. Contrary to what the Court claims throughout the rulings, there is more historical evidence to suggest that the existence, maintenance, and amendment of the lèse-majesté offense in Thai history have not been driven by the people or any popular consensus. Efforts in maintaining or amending the lèse-majesté law have always been led by the ruling class, first through monarchs with absolute power, and later through democratically illegitimate military governments. Arguably, the changes in practice and wording of the law during the “People’s Party” period were also not “people-led” as the “People’s Party” consisted of civil servants and military personnel. The Thai people have never been given the chance to exercise their right to determine what the lèse-majesté law should look like and how it should operate, and whether it should even exist at all. Therefore, the author believes there is reasonable weight to conclude that the Thai Constitutional Court cannot claim that limitations on criticism of the monarchy and Article 112 are part of the “Spirit of the Thai National Community” because the Court failed to consider alternative viewpoints on Thai history besides “Royal Nationalism.” Additionally, the Court neglected the legal history of the lèse-majesté offense and how it demonstrates that the offense was a creation induced by the Thai ruling class without any popular consensus.

Now that the main research question has been answered, the question shifts to that of the future. How will the Court’s jurisprudence affect the dynamic of future Article 112 cases? Will the “Spirit of the Thai National Community” justification and the narrow historical interpretation that comes with it be further solidified as judicial precedent? Unfortunately, the author must admit that prospects in the near future are still grim. The continued use of the “Spirit of the Thai National Community” by the Court suggests that it is not going away anytime soon. The Court continues to invoke restrictions on possible amendments to the law as set out in 2012, most recently in its decision concerning the Move Forward Party’s proposed amendments.⁵⁰ Therefore the precedent seems here to stay. This means contemporary trends observed in Article 112 cases, such as the fluctuation in the number of cases dependent on the political atmosphere of the time, are most likely to continue.

Courts may also become less receptive towards viewpoints on the monarchy which challenge the “Royal Nationalism” narrative. This is because, as Worachet Pakeerut has explained,⁵¹ the interpretation of Article 112 is ultimately tainted by ideology and cultural norms. The Court’s invoking of a historical interpretation rooted in “Royal Nationalism” could be seen as a legal recognition of “Royal Nationalism” as being the “correct” interpretation of Thai history. This can lead judges to believe that it is the “proper” narrative of history that should be reflected in their interpretation of Article 112. Dangerously, this could further blur the line between genuine criticism of the monarchy and “defaming, criticizing or insulting,” which would exponentially broaden the scope of an already overly wide-reaching law.

Furthermore, the Court seems to be developing a "deterrent power” in a similar fashion as observed in France with the Constitutional Council (Conseil Constitutionnel). The term was coined by Alec Stone Sweet in 1992 to describe how the Constitutional Council could exert indirect influence on public policy in France whilst essentially doing nothing.⁵² Sweet argued that this could be seen by how various French governments attempted to predict the Council’s view towards certain areas of public policy and would make tweaks to its public policy dependent on such predictions. This is what Sweet defined as “deterrent power,” which he argued would ultimately lead to a “judicialized policy-making process.”⁵³ This type of indirect influence can also be observed with the Thai Constitutional Court. Many academics have already commented on the Court’s increasingly political role, with some arguing that Thailand is heading towards a “juristocracy.”⁵⁴ Furthermore, the indirect influence of the Court on policies regarding Article 112 is most visible. Ever since the Court ruled that proposals to abolish or amend Article 112 amounted to overthrowing the monarchy, no other political party or movement has come forward to take the mantle of bringing changes regarding Article 112. The idea of a political party proposing amendments to Article 112 as a part of its agenda for the next general election in Thailand seems increasingly unlikely.

Nonetheless, there is still light at the end of the tunnel. The author believes that, despite the grim prospects for the near future, there is still hope for change. This is because the precedent of the “Spirit of the Thai National Community” and a narrow interpretation of Thai history can still be overturned. The author is not arguing that it will happen soon. Instead, the author believes that such an endeavor will bear fruit with time. The road towards overturning such a precedent may be hard, but not impossible.

It will be hard, as there is still a high degree of receptivity for “Royal Nationalism” in judicial circles. This is because, to put it simply, Thai courts are royalist.⁵⁵ Furthermore, the author believes that it will be difficult due to the existence of the concept of a “Democratic Regime with a King as Head of State” (DRKH). This is because DRKH facilitates the aforementioned judicial receptance of royal nationalism. DRKH is essentially the belief that under the “Thai-style” democratic constitutional order, there is an extra layer of power that permeates the constitution and can be called upon to solve crises. This extra layer of power is the moral authority of the monarchy. It developed initially from King Bhumibol’s intervention in the 1973 popular uprising, and was ideologically concretized by another famous intervention in the 1992 “Black May” uprising. However, it has now also become part of Thai constitutional law. This was highlighted by Henning Glaser, who argued that “DRKH had represented the paramount principle of Thai constitutionalism since at least the 1976 Charter.”⁵⁶ Glaser also traced the concept’s ideological origins in the aforementioned royal interventions in 1973 and 1992.⁵⁷ However, Glaser brings more clarity to the infusion of DRKH into constitutional law by pointing to how the concept was first introduced into law by the 1997 Thai Constitution, as a result of efforts by certain royalist but liberal minded drafters, particularly Borwornsak Uwanno.⁵⁸ The introduction of Section 7⁵⁹ (now Section 5(2) of the Thai Constitution B.E. 2560 (2017)) is particularly relevant. The provision gave constitutional legitimacy to political interventions by the Thai monarch, by essentially acknowledging the monarchy as a “higher” level of power over the constitution. As Glaser puts it, “Ultimately, the formerly loose coexistence of a written constitution of limited scope and impact and Thai-style democracy as a vague governance ideology became replaced with an explicit acknowledgment of a supreme layer of the constitutional order hovering high above the written constitution, which, however, links itself by means of sect. 7 to this super-constitution.”⁶⁰

Yet, in the future, things may change. There are still interpretations of law and history that can open up a way towards a more democratic future. By viewing a process with the people as necessary in forming a “national identity” or “national spirit,” courts can go beyond the anti-democratic tendencies of the “non-process” narrative. This will allow courts to take a more open-minded approach to history. They will no longer be restricted to assessing history from the perspective of the role of royal actors. Judges will be relieved from the burden of dealing with the cognitive limitations placed by Royal Nationalism’s narrow approach to history and will be truly free to intellectually engage with alternative viewpoints on Thai history and the legal history of Article 112. Judges and lawyers will have an instrumental role to play if we want to see a future where Thai courts interpret the relation between law and history more democratically. It is up to the judges to bring such an interpretation into the decisions of the courts, and it is up to the lawyers to push for such an interpretation in their arguments. Without these efforts, a more democratic approach, as aforementioned, would never be truly established as part of the legal culture in Thailand.

Lastly, the author would like to leave the reader with a few questions to ponder. The “judicialization of politics” in Thailand, especially in the context of the DRKH, has been a much-frequently talked about topic in academic circles. However, the author believes there is still more to discover. Many questions remain unanswered, such as what is the future of DRKH? Will the DRKH have another evolution, or will it die out? What legal and political implications will occur from such changes? Thai society must confront these questions.

[Date of submission: 19 August 2025; Revision: 21 January 2026; Acceptance: 29 June 2026]

Suggested Bibliographic Citation:

Sathorn, Angelo Sathayu. “Nationalistic History in Thai Constitutional Court Rulings: Article 112 of the Thai Criminal Code as an (Un)Popular Law.” (2026) 6(1) Thai Legal Studies 16–35. https://doi.org/10.54157/tls.283030