On 7 August 2024, Thailand’s Constitutional Court dissolved the Move Forward Party, labelling its reform efforts on the lèse-majesté law as an attempt to subvert the monarchy. The court’s decision not only reflects the rationale behind the concept of the state of exception but also exemplifies hyper-legalism.

Thai politics once again took a tumultuous turn after the Constitutional Court (CC) ordered the dissolution of the Move Forward Party (MFP)—the party that had secured the most parliamentary seats in the May 2023 general election—on 7 August 2024 (the August decision). Embracing a reformist and left-wing stance, the MFP—and its predecessor, the Future Forward Party (FFP)—had consistently been perceived, especially by the elites, the military, and upper middle class, as anti-monarchist. Its campaign to reform the draconian lèse-majesté law under Section 112 of the Criminal Code (S-112) deepens this perception, contributing to the decision to take the harsh measure to eliminate the party.

Faced with the escalating costs and risks of staging another military coup, the Thai elites turned to their ally the CC, which, over the past two decades has dissolved three major political parties, including the FFP, labelled as a threat to the royalist dominance. Despite the public’s little doubt about the MFP’s impending dissolution, the August decision has stirred outrage among its supporters, particularly younger generations who feel their future has been “robbed,” while simultaneously eliciting deep-seated frustration among legal scholars. Not only does the decision reflect a distortion of the law to achieve a desired political outcome, but it also aggravates the problem of a “state of exception” and “hyper-legalism” within the Thai legal order.

S-112 and Lawfare against the Move Forward Party

S-112 criminalises any act of “defaming, disparaging, or insulting the King, Queen, Crown Prince, or Regent,” with a sentence of up to 15 years imprisonment. In practice, given that the law allows anyone who knows of or perceives its violation to file complaints with the police, it has become a mechanism for silencing anti-establishment protesters and pro-democracy critics. Many conservatives even advocate expanding its application to include insults directed at past kings, the king’s pets, and even acts such as spraying the king’s portraits. Concerned about its abuse, 44 MFP MPs, led by its leader, Pita Limjaroenrat, proposed a bill in 2021 aimed at revising Section 112. Despite being blocked from presentation to Parliament, the party pledged its commitment to passing the reform bill in the lead-up to the May 2023 election. If enacted, lèse-majesté would be reclassified as a compoundable offence with a maximum penalty of imprisonment for one year or a fine of THB300,000. Only the Bureau of Royal Household would be permitted to file complaints regarding royal insults, and “honest and fair criticisms” would be exempt from criminal conviction. During vote canvassing, Pita was asked by young pro-democracy supporters whether to abolish or revise S-112. He chose to abolish it, but later stated that the MFP would first strive for its reform.

Undoubtedly, shortly after the MFP clinched its victory in the election, the conservative faction moved to initiate another round of “lawfare.” In January 2024, the CC ruled that the MFP’s lèse-majesté reform campaign and Pita’s actions constituted the exercise of a constitutional right to overthrow the Democratic Regime with the King as Head of State (DRKH), thus contravening Section 49 of Thailand’s current, junta-engineered 2017 Constitution. Following the January decision, the Election Commission (EC) submitted a petition to the CC, asking it to declare the MFP dissolved, citing its duty under Section 92 of the Organic Act on Political Parties 2017. The CC based its reasoning on the January ruling, arguing that the MFP’s S-112 campaign “diminished the value of the royal institution, showed intention to abuse the royal institution for political gain in the general election, [and] hurt people’s faith in the institution and affected national security.” It ultimately declared the MFP dissolved.

I find the August decision problematic on the following grounds. First, the CC adopted a very low threshold for determining what constitutes a potential threat to the monarchy and the DRKH. The Court did not adequately consider how the MFP’s proposal could protect freedom of expression and prevent the misuse of S-112. Nor did the CC adequately balance the freedom to form a political party and the will of the 14 million Thais who voted for the MFP with the consequences of its dissolution, as proposed by one expert witness. The decision effectively elevates the status of S-112, which is theoretically a normal statutory provision, to that of a meta-constitution, with any encroachment upon it being deemed a threat to national security. Besides, by applying a low threshold for dissolving a political party, the Court subverts the development of a democratic culture that regards political parties as intermediaries between the state and the people. This effectively stigmatises electoral politics as a mechanism through which political parties with ideologies inimical to royal hegemony can legitimately enter the political arena, rather than as a space for finding compromise. Simultaneously, it reinforces the elite anti-majoritarian rationale that unelected individuals, perceived as more virtuous and impartial, are deemed legitimate to exert control over elected representatives, who are branded as self-serving and corrupt. Aside from branding electoral politics and a political party as antagonistic forces to the monarchy, this ruling significantly shrinks the space for freedom of expression by subjecting reformist politicians and critics of S-112 to royalist vigilance. Mobilising to ensure a “safer and more accountable” use of S-112 in the future is likely to be more challenging, while efforts to increase its penalties are likely to gain momentum.

Secondly, in its January decision, the CC had claimed that submitting draft legislation was an exercise of the right to overthrow the DRKH, and later adopted this rationale to justify the dissolution of the MFP. However, I believe this is incorrect because submitting draft legislation is a fundamental part of the legislative process—essentially an exercise of public authority, not a constitutional right. The decision empowers the CC to intrude into the realm theoretically belonging to the legislature to the extent it deems appropriate, thus seriously undermining the status of the legislative body not only as the representative of the people’s will but also as an equal partner with the judiciary. As a result, the decision seriously disrupts the balance between the political and judicial branches, with the former unable to impose checks and instead succumbing to the control of the latter.

From the State of Exception to Hyper-Legalism

Overall, I argue that the August decision is infused with the logic of Carl Schmitt’s state of exception, which advocates the elimination of “public enemies”—persons, institutions, and ideologies that pose threats to the survival of a political entity. However, while Schmitt opposed the idea of the CC as “the guardian of the constitution,” and recommended suspending legality for the sake of national security, the Thai case suggests otherwise. As noted, the increasing costs and risks of imposing a military coup have made the royalist-conservative elites unable to completely disregard the importance of legality. Having formed a close partnership with the CC, they engage in “lawfare” against their current number one enemy, the FFP, the MFP, and very potentially their successor, the People’s Party. Therefore, beyond embedding the friend-enemy dichotomy within the Thai constitutional landscape, the August decision ultimately produces the problem of “hyper-legalism”—“zones of exception” produced through and in the name of law and legality, thus becoming “areas that have perhaps more law than any-where else.”

Rawin Leelapatana is an assistant professor at the Faculty of Law, Chulalongkorn University. His areas of interest include jurisprudence, law in times of crisis, and constitutional theory. Leelapatana has published several research articles and book chapters with reputable publishers, such as Oxford University Press, Cambridge University Press, Hart, and Routledge.

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