Legal Problems on Provisional Release of Criminal accused or Defendants Who are Monks Buddhism

Abstract

         This qualitative research aims to: (1) study the concepts and principles of Buddhist doctrines and legal theories concerning the provisional release of Buddhist monks who are accused or charged in criminal cases; (2) examine relevant legal frameworks governing such provisional releases in both Thailand and foreign jurisdictions, including related Supreme Court decisions; (3) analyze and compare legal provisions on the provisional release of accused or charged Buddhist monks; and (4) propose legal reforms to address issues surrounding the temporary release of Buddhist monks in criminal proceedings. This study employs documentary research methodology by collecting data from the Tipitaka, laws, regulations, court judgments, legal texts, academic publications, research reports, dissertations, theses, and other related materials available in both Thai and foreign languages, including those published online. The collected data are analyzed, synthesized, and comparatively assessed.

         The research findings reveal that Section 29 of the Sangha Act B.E. 2505 (1962), as amended by the Second Amendment B.E. 2535 (1992), grants investigative officers discretionary power to declare a monk defrocked if accused of committing a serious criminal offense leading to Parajika (a major monastic offense resulting in automatic disrobing). Section 30 further requires the monk to leave the monastic order before the court delivers a final judgment. This precludes the monk from exercising the right to defend himself using clear evidence or testimony. Should the monk later be found not guilty, the damage is irreversible-he cannot be reordained, nor can his former ecclesiastical rank be reinstated. Such consequences severely undermine the continuity of the Buddhist monastic order and erode public faith in Buddhism. Therefore, the study proposes a revision to the law to allow provisional release, thereby safeguarding the legal rights of accused or charged individuals while respecting the legislative intent to protect Buddhism. This would contribute to a more sustainable and equitable resolution of the issue.