Thailand Law Journal 2011 Fall Issue 2 Volume 14

The Pardoning Power of the Kings of Thailand before the Reform of Legal and Judicial Systems

By Chachapon Jayaphorn ¹

1. Prologue

Monarchy has attached itself to the history of Thailand since the Thai people first appeared in history. Pardoning power has been counted as one of the royal prerogatives since then. There is much historical evidence showing that the royal pardon has never been apart from the monarch since the first era in Thai history – the Sukhothai era (1238-1438 A.D.). Up to now, Thailand, regardless of the political system in place, has given only the monarch the prerogative to grant pardons; however, the scone of this power has changed from time to time.

2. Concepts of the Royal Pardon in the Sukhothai Era

Most historians deem that Sukhothai was the first capital of Thailand²  after the territory gained independence from ancient Cambodia. The society of Sukhothai was like a big family under the rule of the nation's king acting as would a family's father. The king was called "Phor Khun," meaning "supreme father."All citizens were like "the national children," who could feel a closeness to their national father – Phor Khun. The king himself had to be close to his subjects in order to gain not only national harmony but also strength to fight wars with neighbors.³ Because "the king" during that period meant, for all practical purposes, "the government" or "the state" itself, we can therefore conclude that an absolute-monarchy system governed most of Thai society.

Sukhothai kings, alone, held the power to govern the state and every subject therein. The first stone inscription regarding King Ramkhamhaeng the Great⁴ expressed the view that kings were the national leader during both wartime and peacetime⁵ and that the kings exercised all legislative and judicial powers. According to the inscription the judicial style was like the arbitration between a father and his children. The king was the fountain of justice and the supreme judge.⁶ The fatherlike king had to be righteous and just equally before all of his children. There could be neither a favorite child nor unequal treatment in the fatherlike king's mind. The inscription declared, "If citizens, royals, or nobles quarrel, [Phor Khun] must hear the case with no bias, never favor any side, and never act on the basis of bribery."

Also at that time, all citizens could enjoy property-ownership rights and could see the king when seeking justice of other forms of help. When the citizens would want to meet the king, they could ring the bell in front of the royal palace. The king would always come out to hear and judge his subjects' cases.⁷ The inscription states, "In front of the palace gate, there is a bell. If a man wants to file a lawsuit, he just rings the bell. King Ramkhamhaeng hears it. The king will call upon him and will justly rule the case. All citizens in Sukhothai thus praise the king." The right to make a complaint and to receive royal help from the monarch in Thailand has been the firm historical linkage between the monarch and the subjects. People even today still need this right. This ancient judicial custom was the conceptual origin of presenting a petition as a way to seek help and, in particular, to receive pardons from the king.

According to the principle that the king is the fountain of justice and the supreme judge, he at the same time has the sole power to both punish and pardon. Consider the inscription of the Sukhothai-era Law of Banditry: "Article I, if either a servant of a noble or a servant of a monk runs away from his master to hide with anyone in the rural area, the person who facilitated the escape must take the servant back to his master. If this response does not occur, the facilitator becomes a criminal against the king. If the master cannot be found, the person who found this runaway servant must present him to an officer. The reward shall be given."

Hypothetically, we might suggest that the king's exercise of royal power during this period might be based on the grace and the kindness of the king because the relationship between the king and his subjects was like that between a father and his children. To grant a pardon to a criminal thus would be like a father's act of forgiving his children.

Nevertheless, the family-like political relationship between the king-father and his subjects-children existed only in the beginning of the Sukhothai era because, as the number of citizens increased, so too did the complexity of issues regarding politics and power. Thus, later, the political system began changing into a system that concerned itself more and more with power and stability. Later Sukhothai kings needed wider, more stable grounds on which to exercise their powers. Therefore, the king in the next period governed the country by using the Dhamma Raja system, or the Righteous-King system, instead of the old Phor Khun system⁸

The basic ideas about rulers in the Dhamma Raja system originated from the Hinayana⁹ Buddhist doctrine, which arrived on the Indo-Chinese peninsula, including the Sukhothai realm, by the time of King Dharnmaraja Lithai's reign. As stated in the book of Tribhumi,¹⁰ composed by King Lithai himself, the "leader" must exercise his powers under the rule of Dhamma-Buddhist doctrine. King Lithai declared that the great king is not the great warrior, but the Dhamma Raja who rules the country with righteousness. The righteous king shall be called "Chakravarti" (emperor). A true emperor has to be a pleasant man in his people's eyes, and has higher moral standards than normal men because the emperor, by way of Buddhist doctrine, means the king of kings. The most significant conduct of the monarch is not territorial or colonial expansion, but efforts "to support the happiness of people and not to harm anyone."¹¹ One of the king's main duties is to "teach people Dhamma."¹²