In June 2020, people took to the streets calling for democratic and legal reform in Thailand. The National Council for Peace and Order (NCPO) had installed a military government on May 22, 2014, the thirteenth coup since the transition from absolute to constitutional monarchy in 1932. Though the junta had officially exited from power following a general election in March 2019, its leader, General Prayuth Chan-ocha, remained prime minister and many laws and policies put in place by the military regime remained in place. The protests coalesced around three initial demands: the prime minister must resign, a new constitution must be drafted, and the state must stop threatening dissidents. In August 2020, the fourth demand was added: the monarchy must be reformed. Despite the nominal status of Thailand as a constitutional monarchy for over ninety years, the position of the monarchy in the polity, which formally is to be a democracy with the king as head of state, remains unclear.Footnote ¹ Increasingly large protests in September, October, and November 2020 supported the demand for reform of the monarchy. The government responded with police violence and prosecutions, particularly under Article 112 of the Criminal Code. Article 112, often referred to simply as Thailand’s lese majesty provision, stipulates an outsize punishment of three to fifteen years’ imprisonment per count of defamation, insult, or threat to the king, queen, heir apparent, or regent. The second postcoup general election, held in May 2023, resulted in an overwhelming victory for opposition parties and a strong mandate for both the military to exit from power and the constitution to be revised. But the Move Forward Party, which secured the most votes and included reform of Article 112 as one of its key policy provisions, faced social and legal accusations of disloyalty to the monarchy for daring to do so.

On the surface, Thailand may appear to be a particularly egregious illustration of the rule by law, of the thin rule of law, or of law-and-order regimes favored by autocrats.Footnote ² But examination of the criminalization of calls for reform around the monarchy indicates that a deeper, and more concerning, development may be underway. The law is being used to criminalize peaceful dissent over, or even mere questioning of, how power is apportioned and exercised in the polity, so as to preserve the monarchy. Procedure is being interpreted to restrict and twist fundamental concepts, including innocence and guilt. The interpretation and implementation of the law are being deployed in an attempt to transform the political and legal system.

The recent movement for reform of the monarchy can be understood as being in the service of what Gregory Shaffer and Wayne Sandholtz define as “the rule of law as an ideal – or meta-principle – under which individuals are not to be subject to the arbitrary exercise of power.”Footnote ³ The movement aims to clarify and limit the ambiguous institutions behind the arbitrary exercise of power (i.e., the monarchy and its allies – namely, the military and the judiciary) and create space for the voices and desires of the people to be meaningful in governing the polity.Footnote ⁴ The backlash should be understood as an attack on the rule of law that aims to expand and entrench the arbitrary exercise of power within and in relation to the law and judicial process. The primary tool of repression is the law itself (i.e., the use of Article 112 and related constitutional provisions), which obscures the violence contained within it. After all, those who hold power are only enforcing the law against those who violate it.

Motivated by concern with both the immediate effects on the lives of those who dare to dissent and the long-term changes in law and politics, I examine the movement for democracy and reform of the monarchy and the backlash in 2020–23 through Shaffer and Sandholtz’s framework. I focus on the five sources of arbitrariness within regimes that present themselves as pro–rule of law but act to weaken or destroy it. The specificity of the framework makes it possible to apprehend the operations and entrenchment of the arbitrary in the law, the significance of challenging it, and the tremendous courage of those who risk doing so. I proceed by first offering a brief recent history of the rule of law and Article 112, highlighting the entry of the five sources of arbitrariness into the judicial process. Second, I analyze the movement in 2020–23 as a response and challenge to this history and the obstacles to the rule of law it entrenched. Third, I examine the backlash as both an attempt to halt transformation and evidence of how far the monarchy and their allies are willing to go to preserve their power. Finally, I conclude with preliminary reflections on ongoing developments at the time of this chapter’s completion. Ten years and two elections after the May 2014 coup, it is time for a transition to democracy in Thailand, but dangers to the rule of law remain strong. This demands scholarship capable of both comprehending those dangers and identifying strategies to challenge them.

I A Recent History of the Rule of Law and Article 112

On June 24, 1932, when the People’s Party, a civilian–military coalition, fomented the transformation from absolute monarchy to a constitutional regime, their goal was to “change from the system of government in which the king is above the law to the system of government in which the king is under the law.”Footnote ⁵ Making everyone in the polity subject to the same law should have been a foundational step to establish the rule of law and stem the arbitrary exercise of power. Yet the political and legal history of the last ninety years in Thailand demonstrates the challenges in doing so. The challenges are most evident in the series of periodic coups and the difficulty of bringing the king – and his close allies in the military – under the law. Prior to 1932, the military was the army of the king and this has changed little, and even intensified during the Cold War, with their interests and resources linked.

Beginning with a military coup in 1933, only a year after the end of absolute monarchy, there began a cycle consisting of a coup and the abrogation of the constitution, drafting of a new constitution and elections, and then another coup once democracy becomes too unruly. Since 1932, there have been twelve coups, twenty constitutions, and thirty prime ministers.Footnote ⁶ Part of this cycle is impunity for those who launch coups, with each coup followed by an amnesty law. Legal scholar Somchai Preechasinlapakun argues that this provides an incentive for would-be coup-makers to overturn the system. Rather than the rule of law, he explains that a “rule of coups” is present.Footnote ⁷ Accompanying the rule of coups, Thongchai Winichakul argues that the rule of law is royalist, meaning that “the king is above law and justice (not the constitution or parliament that are held to be universal norms).”Footnote ⁸ From the very beginning, citizens have pushed back against both the rule of coups and the royalist rule of law, but it has been difficult for them to gain traction against both ingrained practices.

Yet, as the Cold War wound down by the early 1990s, democracy seemed possible and coups seemed to perhaps be a phenomenon of the past in Thailand. In 1997, the seventeenth constitution, dubbed the “People’s Constitution” due to the participatory process through which it was drafted, seemed like it might be permanent.Footnote ⁹ But as parliamentary politics and political parties without strong allegiance to either the monarchy or the military grew too strong and unruly, the rule of coups returned. On September 19, 2006, the twelfth coup ousted the elected prime minister, Thaksin Shinawatra, and set in motion a sustained attack on democracy and the rule of law, which continues today. This included both a brutal state crackdown on protestors calling for the return of elections in April–May 2010 and then the May 22, 2014, coup, which is the primary subject of this chapter.

The May 22, 2014, coup by the NCPO ushered in the most repressive regime in Thailand since the counterinsurgency regimes of the Cold War. The regime promised to “return happiness to the people” after nearly ten years of polarized political contention beginning in the period prior to the previous coup, which took place on September 19, 2006. The 2006 coup was instigated by those who perceived that the government of democratically elected prime minister Thaksin Shinawatra – and, in particular, its widespread popular support – was a threat to the monarchy.Footnote ¹⁰ Rather than resolving it, the coup only deepened the conflict between the royalist–nationalists who called for it and the democratic–populists who opposed it. While review of the contention between 2006 and 2014 is beyond my analysis here, the choice of a coup to attempt to resolve it set the stage for the entrenchment of the violation of the rule of law.

Article 112 has been part of the Criminal Code since its last revision in 1957, but it was rarely used until after the September 19, 2006, coup.Footnote ¹¹ Anyone can walk into a police station to make an accusation of lese majesty against another, and the police are then obliged to investigate it. Cases began emerging following the 2006 coup, with dissident activists, writers, and netizens being prosecuted. Then, following the 2014 coup, Article 112 became one of the NCPO’s key tools to remake society, and cases quickly spiked and far exceeded previous records. The increase in cases paralleled the advancing age of King Bhumipol, who was the longest-reigning monarch in the world at the time of his death on October 13, 2016, and concern over the transition to his son, Vajiralongkorn, who was surrounded by unsavory rumors about his personal life and his fitness for kingship.Footnote ¹² The NCPO most frequently opted to use the law and prosecution, rather than extrajudicial violence, as its tool to suppress and silence its critics. The NCPO also sought to stifle dissent by revoking the passports of Thai citizens who resided abroad and declined to return.Footnote ¹³

According to Thai Lawyers for Human Rights (TLHR), formed in the first days after the coup to document rights violations and defend those targeted, at least 162 were prosecuted for violation of Article 112 during the NCPO’s five-year regime.Footnote ¹⁴ People were prosecuted under Article 112 for performing plays, writing graffiti in bathrooms, having conversations in taxis, and – representing the largest number of cases – making social media posts. The longest known punishment was handed down to Wichai (family name withheld), who was sentenced to thirty-five years’ imprisonment for ten Facebook posts deemed to violate the law in June 2017; Wichai’s sentence was reduced from seventy years as he confessed.Footnote ¹⁵ After King Bhumibol’s death in October 2016, there was initially a rapid decline in new Article 112 cases. After a decade of increasing accusations and prosecutions, this seemed like a hopeful sign of decriminalization of speech critical of the monarchy. Upon closer examination, however, it soon became clear that the lack of prosecution did not mean that critics of the monarchy were now free to criticize the king, but rather signaled a new kind of danger for dissidents and the Thai polity.Footnote ¹⁶ The murder or disappearance of at least nine republican critics in exile illustrated the gravity of this danger.

Unjust prosecutions of dissidents and extrajudicial killing of them is part of a continuum of violence. These actions, as well as the difficulty of halting the prosecutions or holding the assassins to account, exemplify the crisis of the rule of law in Thailand. Shaffer and Sandholtz’s five sources of arbitrariness highlight the dangers to both individuals and the polity.

The five sources of arbitrariness point to a range of moments, sites, and actors involved in the unjust exercise of power detrimental to the rule of law. The first source of arbitrariness is based on the radical inequality of those within the polity, in which “the wielder of power is not subject, in practice, to the law, its controls and limits.”Footnote ¹⁷ Accompanying Article 112, which provides special protection for the king, queen, heir apparent, or regent, Article 6 of the 2017 Constitution further stipulates that: “The king shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the king to any sort of accusation or action.” This means that the king cannot himself face prosecution and exists above the law.

Compounding the inequality between the rulers and the ruled in the polity, it is impossible for citizens to guess when they will or will not be charged under Article 112. Once the surge in prosecutions began after the 2014 coup, many people were concerned that they would be arrested for articles they had written, social media comments they had posted, and other actions. Some were, but many were not. Many were also concerned that they might be killed, and, again, some were. This reflects the second source of arbitrariness, in which “individuals are unable to know and predict how power will be wielded over them.”Footnote ¹⁸ The condition of not knowing what violence one will experience for expressing one’s view generates fear that limits public discussion about the monarchy and power generally in Thailand.

The third and fourth sources of arbitrariness further structure the relationships between those who hold power and those subject to its operations by distinguishing between those who are not permitted to explain their actions and, conversely, those who can act without having to offer any explanation. Shaffer and Sandholtz explain that the third source of arbitrariness “is where individuals have no place to be heard, inform, question, or respond to how power is exercised over them.”Footnote ¹⁹ Many Article 112 cases arise precisely from questioning or responding to the exercise of power by the monarchy, not from anything clearly recognizable as defamation, insult, or threat. Yet judges interpret the very questioning of the king’s power as all three. Defendants in Article 112 cases who choose to plead innocent and fight their cases are further punished with a nearly certain guilty verdict, while those who confess are rewarded with a halving of their sentence. The fourth source of arbitrariness intersects closely with the third and is “where authorities do not engage in public reason-giving in issuing their decisions, which reasons then can be contested, including before judicial, political, and administrative processes.”Footnote ²⁰ The courts frequently cite the long-standing presence of the monarchy and a presumed universal love for the king as the reasons for their harsh punishment of those who dissent. No arrests have been made in the cases of the nine disappeared or extrajudicially killed republican exiles; the ability to kill one’s critics with impunity further reflects and consolidates the power of the monarchy and its allies.

The fifth source of arbitrariness is “the proportionality of any measure in terms of the reasonable relationship of means and ends.”Footnote ²¹ The minimum punishment per violation of Article 112 is three years and the maximum is fifteen years. There are no standard sentencing guidelines, but several examples illustrate the outsized punishments meted out to those who dissent. Daranee Charnchoengsilpakul, prosecuted in the first wave following the September 19, 2006, coup, was initially sentenced to eighteen years’ imprisonment for three counts of violation of the law in relation to roughly fifty-five minutes of speech. Her sentence was reduced on appeal to fifteen years’ imprisonment or roughly one year for each four minutes of speech.Footnote ²² Wichai, mentioned above as receiving the longest sentence during the NCPO regime, was initially sentenced to seventy years’ imprisonment for ten Facebook posts, or seven years per post; his sentence was reduced to thirty-years once he confessed. These sentences cannot be understood as anything other than disproportionate.

Activists, lawyers, journalists, academics, and others kept up a steady challenge against the abuse of Article 112 and the accompanying forms of the arbitrary exercise of power that began with the September 2006 coup. Some defendants, like Daranee Charnchoengsilpakul, chose to fight their cases as a further form of protest even though they knew it would likely result in a harsher punishment. Lawyers provided pro bono defense for those accused and a few brave journalists reported on the cases. During the relatively open period of 2012, while Yingluck Shinawatra was prime minister, a coalition of academics, journalists, and others formed the Campaign Committee for the Amendment of Article 112 (CCAA112) to advocate for the amendment of the law so as to limit who could make accusations of violation of the law and reduce the possible punishment. CCAA112 used a constitutional provision enabling any citizen group that gathered enough signatures of support to propose the draft of a law for parliament to review, but parliament refused to even consider the draft on the basis of national security. Then, in the first few days following the May 22, 2014, coup, when the likely depth of the NCPO’s repression became clear, lawyers and activists, many active during the preceding decade, joined together to establish TLHR, which became the primary documentary and advocacy organization defending dissidents. But while those active in challenging the arbitrary exercise of power were committed, their numbers remained small until 2020, when a movement emerged to name and directly counter the forms of arbitrariness and clarify the place of the monarchy in law and politics in defense of the rule of law.

II A Movement Emerges

The disappearance of the ninth exiled republican critic, Wanchalearm Satsaksit, in Phnom Penh on June 4, 2020, catalyzed a wave of protests.Footnote ²³ In June 2020, there had been no domestic transmission of the coronavirus for over two months, and while the emergency law prohibiting mass gatherings was still in place, activists began to assemble, initially to call for justice for Wanchalearm and the other disappeared and murdered republican exiles, and then to make broader demands for democracy. By July, regular protests were taking place in Bangkok and provinces around the country, organized by different groups of youth activists. Initially, the protests had three main demands. First, the current prime minister, General Prayuth Chan-ocha, must resign. General Prayuth governed for five years as head of the NCPO and then retained his position following the March 2019 general election through a series of antidemocratic maneuvers. The election was meant to mark the end of military dictatorship but instead signaled a new era of authoritarian repression cloaked in the form of electoral democracy.Footnote ²⁴ Second, a new constitution must be drafted. The 2017 Constitution, Thailand’s twentieth, was drafted by a junta-appointed body and expanded the authority of the state and king while dispossessing the people of rights.Footnote ²⁵ Third, the state must stop threatening dissidents through both excessive legal prosecution and extrajudicial intimidation and violence.

In August 2020, a fourth demand was added: the institution of the monarchy must be reformed. The demand for reform of the institution of the monarchy was first publicly introduced by Arnon Nampa, a human rights lawyer at TLHR and poet, during a speech at a Hogwarts-themed protest on August 3, 2020. Dressed as Harry Potter, Arnon promised that he would speak openly about the institution of the monarchy from that day forward and called on others to do so. Arnon argued that without speaking openly about the monarchy, the other three demands of the protestors were meaningless and could not result in change. Speaking openly about the monarchy is both the first step and essential to curtailing the sources of arbitrariness in the polity. Foreseeing the impending backlash, he said that speaking about the monarchy.

To make visible the forces behind the arbitrary exercise of power in the polity is threatening to those who benefit from such power.

A week later, on August 10, 2020, the United Front of Thammasat and Demonstration (UFTD), a new student organization based at Thammasat University, the historic center of student protest in Thailand, held a protest in which it unveiled a ten-point proposal that elaborated how to carry out the reform of the institution of the monarchy. The proposal, read by Panusaya Sitthijirawattanakul, a sociology and anthropology student at Thammasat and one of the leaders of the UFTD, included calls for restraints to be placed on the king’s authority – importantly, including an end to royal endorsement of coups; for the personal, private assets of the king to be separated from the public assets of the crown financed by the people; for military units the king had placed under his own command to be transferred back to the usual chain of military command; for Article 112 to be abolished; and for justice to be secured in the cases of the disappeared and murdered republican exiles.Footnote ²⁷ While the institution of the monarchy developed strong links to the military and the financial, landholding, industrial, and other forms of capital under Bhumipol, Maha Vajiralongkorn transferred public crown assets to his personal control and placed military units under his direct command.Footnote ²⁸ The palace is not legally required to provide full financial transparency nor does it do so voluntarily. But Al Jazeera reported in January 2021 that King Vajiralongkorn was the world’s wealthiest monarch, with a fortune of at least USD 30 billion and perhaps up to USD 70 billion.Footnote ²⁹

The UFTD’s ten demands for reform became a staple of protests in the next months. They aimed to counter arbitrariness in the Thai polity by bringing the wielder of power under the law, ceasing the unpredictable exercise of power upon dissidents, and ending disproportionate punishment, or any punishment, for the peaceful expression of dissenting opinions. Most significantly, the demands and the broader movement were a direct claim to question and counter the arbitrary exercise of power.

III A Backlash Ensues

After the August 3 and August 10, 2020, protests, many observers were concerned that speaking so frankly about the monarchy would frighten the majority of the people and end the budding democracy movement. Instead, the movement “shattered the ceiling” (“ทะลุเพดาน”) of what could be said about the monarchy in public discussions in Thailand. For a time, Thailand seemed poised on the brink of tremendous change in terms of a transition to democracy, reform of the monarchy, and strengthening of the rule of law. But then a backlash began, marked by entrenchment of existing sources of arbitrariness.

Parit Chiwarak, another Thammasat University student and member of the UFTD, concluded a speech he gave in Khon Kaen province in northeastern Thailand on how the king’s endorsement of coups had harmed society by noting that:

Parit’s comments reflected his awareness of the nine disappeared and murdered republican exiles and the risk that those who speak about the monarchy incur. His choice of words – “We all will know who ordered it” – is both a critique of the king’s power and a challenge to it in the form of speaking about it openly. Parit remains alive, but has twenty-four pending Article 112 cases against him. Were he to be convicted in even only a handful of these cases, this would result in a de facto life sentence. Beginning in November 2020, criminal cases began to be brought against activists who participated in demonstrations, particularly those who called for the reform of the monarchy, with many cases against Parit, Arnon, Panusaya, and other leaders and activists.Footnote ³¹ According to a TLHR report, between November 24, 2020, and June 26, 2023, at least 252 individuals have been arrested and charged with violation of Article 112.Footnote ³² The majority of these charges stem from peaceful, unarmed expression of opinion about the monarchy and its place in the Thai polity. Periods of denial of bail prior to trial have become routine for those accused, and adherence to stringent bail conditions is required for those released. One of these conditions is to not participate in any further protest or do anything that might damage the monarchy, which is left unspecified in the release orders.

Alongside the criminal proceedings under Article 112, another judicial process related to the August 3 and 10, 2020, demonstrations illustrates the dwindling of the rule of law and the expansion of arbitrariness in Thailand. Article 49 of the 2017 Constitution permits anyone who believes that others are engaged in efforts to overthrow rule by democracy with the king as head of state to request that the Constitutional Court examine their actions, and for the cessation of such efforts to be ordered if found to constitute overthrow. Like the courts of justice as a whole, the Constitutional Court is closely linked to the institution of the monarchy.Footnote ³³ First established following the promulgation of the 1997 Constitution, it comprises nine justices royally appointed following suggestion by royally connected institutions. The nine justices of the current court include three Supreme Court justices appointed by the Supreme Court, two Supreme Administrative Court justices appointed by the Supreme Administrative Court, and two legal experts and two political science experts appointed by the Senate, whose current members were appointed by the NCPO leaving office in 2019.

Article 49, which first appeared in the 1997 Constitution, was intended to protect against future coups. But in September 2020, Nattaporn Toprayoon, a royalist lawyer, submitted a petition to the Constitutional Court arguing that Arnon’s speech on August 3 and the peaceful, unarmed demonstration by the UFTD at Thammasat University on August 10 and its ten-point proposal constituted an overthrow of democracy with the king as head of state.Footnote ³⁴ In sloppy prose and with unclear logic, Nattaporn advanced a series of arguments aiming to discredit and vilify the activists. He denied the activists’ claim that they aimed to reform the institution of the monarchy and instead argued that they aimed to create disorder and division.

There were two key slippages in his argument. The first is that he did not define the meaning of a system of rule by democracy with the king as head of state and instead argued that the activists disrespected and wished to overthrow the monarchy. While Article 49 of the Constitution applies specifically to the system of rule, accusing the activists of aiming to overthrow the monarchy is a much stronger, and (for the activists) more dangerous, argument to make. Nattaporn’s second slippage is complementary. He collapsed the meaning of opposition and overthrow into one another.Footnote ³⁵ This move fails to recognize the role of peaceful opposition in building and sustaining democracy. Rather than a clear argument as to how the activists’ peaceful speeches constituted, or would even lead to or prompt, overthrow of rule by democracy with the king as head of state, Nattaporn instead repeatedly claimed that the speeches made him and others who loved the king uneasy.Footnote ³⁶ Nattaporn included extensive quotes from the activists’ speeches in his complaint, but the quotations called his argument into question.

The three activists named in the petition – Arnon, Panusaya, and Panupong Jadnok, a student at Ramkhamhaeng University and member of the UFTD – were limited to submitting a written response to his petition. They explained that they were calling for reform, not overthrow, of the institution of the monarchy; challenged the vagueness of his argument; and indicated their willingness to provide verbal testimony to the Constitutional Court if needed.Footnote ³⁷ Despite the gravity and complexity of the case, neither the three activists nor the academics and other experts they prepared as witnesses were allowed by the Constitutional Court to provide verbal testimony. When arbitrariness reigns, those who hold power are seen as beyond question and those who challenge it beyond reason.

The Constitutional Court spent over a full year considering the petition. In November 2021, the Constitutional Court ruled that the activists’ actions constituted overthrow of rule by democracy with the king as head of state and ordered them to cease their activities immediately. An abbreviated version was read on November 10, 2021, and the full ruling was released on November 29, 2021. The Constitutional Court framed its ruling by recounting the facts and describing the context of the case in a way that favored Nattaporn. The Constitutional Court discounted any need to protect human rights by emphasizing the performance of duty and maintenance of good morals rather than freedom of expression. The Court placed duty in relation to a narrative of Thai history that centered the king as an unchanging, central figure in the polity, whose role was unaffected by the events of June 24, 1932. Like Nattaporn, the Constitutional Court opted not to believe the activists when they said that their intention was to reform the institution of the monarchy in order to preserve it. Relying on an unusual definition of overthrow, the Constitutional Court therefore concluded that the activists were engaged in overthrow of rule by democracy with the king as head of state and ordered them to immediately cease their activities.Footnote ³⁸ The ruling rendered by the Constitutional Court was one in which the Constitution was interpreted in such a way as to further unquestioning valorization of the monarchy as the only perspective possible, at the expense of the protection of rights and freedom of expression.

One of the initial concerns when the Constitutional Court’s ruling was announced was whether Arnon, Panusaya, Panupong, and other activists already facing numerous Article 112 cases would also be charged with violation of Article 113, or treason, which carries a maximum penalty of life imprisonment or death. This has not happened. But the potential impacts, both short-term and long-term, of the Constitutional Court ruling on the provision of justice, the rule of law, and the visions of a democratic future that dissidents imagine remain unclear.

IV Working against Arbitrariness and toward the Rule of Law

The ongoing arrests and prosecutions under Article 112 have heightened the risks of questioning power and its unjust exercise in Thailand. While the majority of those accused have ultimately been granted bail, including the leaders discussed earlier – Arnon, Panusaya, Panupong, and Parit – their release has carried the condition of nonparticipation in political protest or other activities that might damage the monarchy. The frequency of protests declined as arrests took place throughout 2021 and 2022, but did not stop completely.

One of the most compelling new groups to emerge is Shattering the Palace (ทะลุวัง), whose primary protest action is to carry out public polls. Activists go to shopping malls, train stations, and selected public events armed with posterboards and small stickers for respondents to indicate their views on various topics about the monarchy. For daring to ask these questions, members of the group have been arrested, charged with violation of Article 112, and subjected to long periods of pretrial detention. One stark example is the case of Tantawan Tuatulanon, released on May 26, 2022, after thirty-seven days of pretrial detention following accusation of violation of Article 112 for live broadcasting and peacefully asking the police questions about the monarchy prior to a royal motorcade. She was on hunger strike for the entire period of her detention in protest at the denial of bail. Her lawyers made four applications for bail for her before the Criminal Court finally assented. She is confined to her home for twenty-four hours per day, must wear an electronic monitoring anklet, and is forbidden from participating in protests or damaging the monarchy.

Two additional members of Thaluwang, Bung and Bai Por, were held for ninety-one days of pretrial detention, including sixty-four days on hunger strike, after carrying out a poll at a shopping mall on whether or not royal motorcades caused inconvenience. They made seven bail requests before it was finally granted; each denial order noted that their lives were not yet in danger from their hunger strike and they were flight risks and would likely continue to engage in similar actions were bail to be granted. During one bail hearing, after being on hunger strike for fifty-four days, the two young women were so weakened by the trip from the Central Women’s Prison where they are being detained that they collapsed and were rushed to the nearest hospital for treatment; the physician on duty reported to the court that they were in “normal” condition. Pretrial bail has long been denied in a majority of Article 112 cases, but the Thaluwang cases are different, both due to the nature of the action deemed to potentially constitute lese majesty and the court’s lack of concern about the health of the detainees. To be clear, while individuals accused of violent crime are routinely granted bail in Thailand, all three Thaluwang activists were subject to denial of bail and arbitrary detention for asking questions and carrying out a poll about royal motorcades.

In the May 2023 general election, the second since the May 2014 coup, the liberal democratic Move Forward Party secured the largest number of votes and a clear popular mandate to form a government. They ran on a platform of policies that included legalization of same-sex marriage, the end of compulsory military conscription, and amendment of Article 112 to reduce the punishment. But very soon after the election it became clear that the monarchy and military-aligned forces would not allow Move Forward Party to form a government. One of the legacies of the NCPO period is that the parliament is composed of 500 elected members and 250 senators who were appointed by the junta. A petition was submitted to the Constitutional Court in late June 2023, alleging that Move Forward Party’s proposal to amend Article 112 constituted overthrow of the government. Like the Constitutional Court petition brought against Arnon, Panusaya, and Panupong, this one verges on the absurd: How could a policy proposal conceivably constitute overthrow? Yet the possible effects of the petition are potentially profound. The petition was brought a week before the planned election of the prime minister in the parliament, and many neutral members of parliament and even some senators who had previously indicated they would vote for Pita Limjaroenrat, the Move Forward Party candidate, opted to abstain, likely out of concern of being perceived to support an anti-monarchy party. Instead, in August 2023, a coalition made up of parties loyal to the military and monarchy, which secured few votes, formed a government and selected a prime minister whose party did not win the popular vote. A year later, in August 2024, the Constitutional Court ruled that the Move Forward Party’s proposal of an amendment to Article 112 constituted overthrow. The party was dissolved and its executive banned from holding political office for ten years.

V Conclusion: Toward a Future Rule of Law

The rise in arbitrariness and attacks on the rule of law in Thailand come at a time when authoritarianism is on the rise across Asia. A military court in Myanmar on February 1, 2021, ended the cautious transition to democracy and brought a sharp crackdown. Dissidents are subject to arbitrary arrest and summary sentencing in secret trials.Footnote ³⁹ Since the presidential election of Rodrigo Duterte in 2016 and with little change following the election of Bongbong Marcos, Ferdinand Marcos’s son, in 2022, extrajudicial killings, attacks on press and academic freedom, and a general climate deleterious to the rule of law have become entrenched in the Philippines.Footnote ⁴⁰ The rule of law in Hong Kong has declined precipitously as China has claimed legal and political control far in advance of 2047, the previously agreed-upon date of incorporation into China. Activists, journalists, and academics are facing increasing prosecutions under the draconian National Security Law for engaging in basic expression of opinion and political rights.Footnote ⁴¹ Compounding the difficulty in stopping the rise of arbitrariness and the violation of human rights is that, unlike the Americas, Europe, or Africa, there are no regional or subregional human rights mechanisms. The governments in the region make it a practice to cite the inviolability of sovereignty whenever they are called upon to criticize their neighbors. While the region remains safe for capital, as Ji Li notes regarding China in this volume (in Chapter 13), it is increasingly unsafe for dissidents.

Writing in the context of Putin’s Russia, Masha Gessen argues that: “In functioning democracies the contradictions between avowed ideals and reality can be and often are called out, causing social and political change. That does not eliminate the built-in gap, but it has a way of making societies a little more democratic and a little less unequal, in spurts. Totalitarian ideology allows no such correction.”Footnote ⁴² The fine-grained framework to examine the rule of law developed in this book by Shaffer and Sandholtz is a key tool to discover and call out gaps between ideals and reality in disparate contexts. Rather than seeing a possible trajectory in which challenges to the rule of law in Thailand, which have been particularly grave since the May 22, 2014, coup, are reversed, the situation remains challenging despite some elements that seem to signal positive developments, such as elections. The Constitutional Court of Thailand’s characterization of peaceful dissent and policy proposals as overthrow, with correspondingly harsh consequences, is an expression of the arbitrary exercise of power par excellence. Our job as scholars is to track, analyze, and criticize the means and methods by which such undermining of the rule of law takes place, as part of our contribution to strengthening it.