Translation:Order of the National Administrative Reform Council No. 41

by by National Administrative Reform Council

Table of contents 

The Order

Preamble

Articles

1. Amendment to section 112 of the Penal Code: lèse-majesté
2. Amendment to section 118 of the Penal Code: desecration of national symbols
3. Amendment to sections 133–136 of the Penal Code: lèse-majesté against foreign personages; desecration of foreign symbols; insults of officers
4. Amendment to section 138 of the Penal Code: offering resistance or obstruction to officers
5. Amendment to section 198 of the Penal Code: insult of courts or judges; obstruction of justice
6. Amendment to section 206 of the Penal Code: religious desecration
7. Amendment to section 326 of the Penal Code: defamation
8. Amendment to section 328 of the Penal Code: defamation by publication
9. Amendment to section 393 of the Penal Code: affront; insult by publication

Commencement

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Order of the National Administrative Reform Council^[1]
No. 41

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Whereas the National Administrative Reform Council entertains an opinion that the rates of penalty designated for the offences relating to defamation or insult against the King,^[2] Queen, Heir to the Throne, or Regent [of Thailand] or [against] the rachathipbodi,^[3] rachini,^[4] ratchasami,^[5] heir to the throne, or head of a foreign state, officers whilst executing their duties, courts or judges,^[6] and people in general, as well as other acts [committed] for desecrating^[7] the Nation [or] a foreign state which has friendly relations [with the Nation], or acts constituting religious desecration, and offences relating to the offering of resistance or obstruction to officers in the execution of their duties and the causing of obstruction to the trial or adjudging of [a case by] a court, are not suitable for the prevailing situations, and that those rates of penalty should be modified to a higher degree, the Head of the National Administrative Reform Council therefore issues the following order:

Article⁠1.⁠The text of section 112 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠112.⁠Anyone who defames, insults, or expresses ill will towards^[8] the King,^[2] Queen, Heir to the Throne, or Regent, incurs a penalty of imprisonment from three years to fifteen years."

Article⁠2.⁠The text of section 118 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠118.⁠Anyone who commits whatever act against a flag or any other symbol which signifies the State, so as to desecrate^[7] the Nation, incurs a penalty of imprisonment not over two years, or fine not over four thousand baht, or both such imprisonment and fine."

Article⁠3.⁠The text of section 133, section 134, section 135, and section 136 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠133.⁠Anyone who defames, insults, or expresses ill will towards^[8] the rachathipbodi,^[3] rachini,^[4] ratchasami,^[5] heir to the throne, or head of a foreign state, incurs a penalty of imprisonment from one year to seven years, or fine from two thousand baht to fourteen thousand baht, or both such imprisonment and fine.

Section⁠134.⁠Anyone who defames, insults, or expresses ill will towards^[8] a representative of a foreign state who has been accredited to the Royal Court incurs a penalty of imprisonment from six months to five years, or fine from one thousand baht to ten thousand baht, or both such imprisonment and fine.

Section⁠135.⁠Anyone who commits whatever act against a flag or any other symbol that signifies a foreign state which has friendly relations [with Thailand], so as to desecrate^[7] such state, incurs a penalty of imprisonment not over two years, or fine not over four thousand baht, or both such imprisonment and fine.

Section⁠136.⁠Anyone who insults an officer whilst [the latter is] discharging a duty or because [the latter] has discharged a duty, incurs a penalty of imprisonment not over one year, or fine not over two thousand baht, or both such imprisonment and fine."

Article⁠4.⁠The text of section 138 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠138.⁠Anyone who offers resistance or obstruction to an officer or person who is required by the law to help an officer in the execution of a duty, incurs a penalty of imprisonment not over one year, or fine not over two thousand baht, or both such imprisonment and fine.

If such resistance or obstruction has been committed by exercise of forcible violence or by threat of forcible violence, the offender incurs a penalty of imprisonment not over two years, or fine not over four thousand baht, or both such imprisonment and fine."

Article⁠5.⁠The text of section 198 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠198.⁠Anyone who insults a court or judge^[6] during^[9] the trial or adjudging of a case or causes^[10] obstruction to the trial or adjudging of [a case by] a court, incurs a penalty of imprisonment from one year to seven years, or fine from two thousand baht to fourteen thousand baht, or both such imprisonment and fine."

Article⁠6.⁠The text of section 206 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠206.⁠Anyone who commits in whatever manner against an object or place of religious worship of any community of people [an act] which constitutes desecration^[7] of such religion, incurs a penalty of imprisonment from one year to seven years, or fine from two thousand baht to fourteen thousand baht, or both such imprisonment and fine."

Article⁠7.⁠The text of section 326 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠326.⁠[When] anyone, in the presence of a third person, asserts a fact^[11] about another in a manner likely to cause the latter^[12] to lose [his] reputation, to be insulted, or to be hated, that one commits an offence of defamation [and] incurs a penalty of imprisonment not over one year, or fine not over two thousand baht, or both such imprisonment and fine."

Article⁠8.⁠The text of section 328 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠328.⁠If an offence of defamation is committed by publication through a document, drawing, painting, film, picture or letter made available by any means, audio disc,^[13] or other audio recording; committed by broadcasting of sound; or committed by any other means of publicity; the offender incurs a penalty of imprisonment not over two years, or fine not over four thousand baht, or both such imprisonment and fine."

Article⁠9.⁠The text of section 393 of the Penal Code shall be repealed and replaced by the following text:

"Section⁠393.⁠Anyone who insults another in [the latter's] presence or through publication, incurs a penalty of imprisonment not over one month, or fine not over one thousand baht, or both such imprisonment and fine."

This^[14] [order shall come into force] henceforth.

Ordered on the 21st day of October 2519 Buddhist Era^[15]
Admiral Sa-ngad Chaloryu
Head of the National Administrative Reform Council

Notes

1. A military junta, led by Admiral Sa-ngad Chaloryu, that staged a coup d’état in Thailand on 6 October 1976 following the Thammasat University massacre on that very day.
2. In fact, the Thai term kasat (Thai: กษัตริย์) should be translated as "monarch" because (1) it is a gender-neutral term and (2) a phraratchathida (Thai: พระราชธิดา; literally "sacred royal daughter", referring to a daughter of a monarch) is now allowed by the constitution to become kasat. However, it is here translated as "king" because (a) the term king was used in the English draft of the Penal Code (Office of the Juridical Council, 1943, p. 1) and (b) the term kasat is accompanied by the term rachini (Thai: ราชินี; "queen"), which Penal Code Drafting Committee Member Yut Saeng-uthai (2003, p. 20) and Constitutional Court Judge Thawikiat Minakanit (2006, p. 233) wrote refers to the queen consort of a reigning king.
3. The term rachathipbodi (Thai: ราชาธิบดี), a compound of racha ("royal") and athipbodi ("overlord"), literally refers to any male monarch, as king, emperor, sultan, sovereign prince, etc. However, in the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 29/37), the mere term of king was used, and Penal Code Drafting Committee Member Yut Saeng-uthai (2003, p. 39) wrote that the term rachathipbodi here refers to "the reigning king of a foreign state".
4. The term rachini (Thai: ราชินี) generally means queen, which can refer to either queen consort or queen regnant. In the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 29/37), the mere term of queen was used. Penal Code Drafting Committee Member Yut Saeng-uthai (2003, p. 39) wrote that the term rachini here refers to the queen (consort) of a reigning king. It is also questionable whether this term includes any other female consort than a queen, such as empress, princess, etc.
5. The term ratchasami (Thai: ราชสามี) literally translates "royal husband" and refers to any husband of a royal person, as prince consort, king consort, emperor consort, etc. In the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 29/36), the term prince consort was used.
6. Strictly speaking, the term phuphiphaksa (Thai: ผู้พิพากษา), here translated as "judge(s)", only refers to judges of the courts of justice. Judges of the other courts (administrative courts, Constitutional Court, military courts) are referred to as tulakan (Thai: ตุลาการ).
7. According to Samnak-ngan Ratchabandittayasapha (2013), yiatyam (Thai: เหยียดหยาม) means to treat with contempt. It is a compound word consisting of yiat ("to look down on") and yam (having the same meaning). In the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 42), the term vilify was used.
8. In the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 29/28), the term threaten was used. However, in the Thai version of the code as enacted, the phrase sadaeng khwam-a-khat-mat-rai (Thai: แสดงความอาฆาตมาดร้าย) is used. Sadaeng means to show, to express, to display, etc. Khwam-a-khat-mat-rai is an abstract noun of a-khat-mat-rai, which idiomatically means "to be spiteful [towards someone or to] intend to do [someone] harm, no matter what", according to Samnak-ngan Ratchabandittayasapha (2013). Literally, a-khat-mat-rai is a compound word consisting of a-khat ("to spite") and mat-rai ("to intend ill"). A member of the Penal Code Drafting Committee, Yut Saeng-uthai (2003, p. 22), wrote that sadaeng khwam-a-khat-mat-rai here means "expression of an intention to exercise forcible violence in the future". Constitutional Court Judge Thawikiat Minakanit (2006, p. 235) wrote that this phrase means "expression of an ill intention against the life, body, liberty, or reputation, property, or other rights..., whether made through action, symbol, text, speech, or any other thing."
9. The term nai (Thai: ใน) can be translated variously, as in, at, in the course of of, etc. It is here translated as "during" according to the English draft of the Penal Code (Office of the Juridical Council, 1950, p. 29/50).
10. Literally, "commit".
11. Sai khwam (Thai: ใส่ความ), here translated as "to assert a fact", literally means "to insert a matter". According to Samnak-ngan Ratchabandittayasapha (2013), the meaning of this idiom is "to speak or write negatively or falsely [about]; to make a negative, injurious accusation against another".
    The English draft of the Thai Penal Code (Office of the Juridical Council, 1950, pp. 29/84 – 29/85) says: "Whoever, by communication made to a third person, imputes anything in a manner likely to injure the reputation of any other person or to expose such person to hatred or contempt, is said to commit defamation and shall be punished with…".
    The Thai version of the code as enacted translates literally: "[When] anyone inserts a matter [to] another before a third person in a manner that is likely to make that other person lose reputation, insulted, or hated, that one commits an offence of defamation [and] is subject to a list of penalties [as follows]…".
    Compare section 187 of the German Criminal Code, which says: "Whoever, despite knowing better, asserts or disseminates an untrue fact about another person which is suitable for degrading that person or negatively affecting public opinion about that person or endangering said person's creditworthiness, incurs a penalty of…" (Bohlander & Reusch, n.d.).
12. Literally, "that other person".
13. "Audio disc" is a literal translation of phaensiang (Thai: แผ่นเสียง), a compound consisting of phaen ("disc") and siang ("sound"). Samnak-ngan Ratchabandittayasapha (2013) says phaensiang refers to a gramophone disc record.
14. Thang ni (Thai: ทั้งนี้) literally translates "with this[/these]". Samnak-ngan Ratchabandittayasapha (2013) says it means "according to that which has been stated".
15. The year 2519 BE corresponds to 1976 CE.

Bibliography

Original

• "Khamsang Khong Khana Patirup Kanpokkhrong Phaendin Chabap Thi Sisip Et" [Order of the National Administrative Reform Council No. 41]. (1976, 21 October). Ratchakitchanubeksa [Government Gazette], 93(134A, special edition), 46–51. (In Thai).

References

• Bohlander, M., & Reusch, U. (Trans.). (n.d.). Strafgesetzbuch [Criminal Code]. https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html
• Office of the Juridical Council. (1943). Archives Concerning the Revised Penal Code: Tome XIII [Microfilm]. The Archives of the History of Thai Codification (OCLC No. 1228262063 / Digital TU No. 163591), Thammasat University, Bangkok.
• Office of the Juridical Council. (1950). Archives Concerning the Revised Penal Code: Tome XXV [Microfilm]. The Archives of the History of Thai Codification (OCLC No. 1228261634 / Digital TU No. 163604), Thammasat University, Bangkok.
• Samnak-ngan Ratchabandittayasapha [Office of the Royal Society]. (2013). Photchananukrom Chabap Ratchabandittayasathan Phoso Song Phan Ha Roi Hasip Si [Royal Institute Dictionary, 2554 BE]. https://dictionary.orst.go.th/ (In Thai).
• Thawikiat Minakanit. (2006). Kham-athibai Kotmai Aya Phak Khwamphit Lae Lahuthot [Explanation of Criminal Law: Divisions on Offences and Petty Offences]. (3rd ed.). Bangkok: Winyuchon. ISBN 978-974-288-495-6. (In Thai).
• Yut Saeng-uthai. (2003). Kotmai Aya Phak Song Thueng Sam [Criminal Law: Divisions 2–3]. (10th ed.). Bangkok: Winyuchon. ISBN 974-571-778-9. (In Thai).