JURIST Guest Columnist Jean-Marie Kamatali, of Ohio Northern University Pettit College of Law, discusses the use and misuse of lèse-majesté…

Despite increasing domestic and international pressure on Thailand to repeal or revise the provision of its criminal code on lèse-majesté, the military government has not only resisted this pressure but has further intensified its application. The controversial lèse-majesté provision is enshrined in Article 112 of the Thailand Criminal Code. It provides that “Whoever defames, insults or threatens the King, Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.”

At first glance the resistance of Thailand to change this provision may be understandable. After all the crime of lèse-majesté is not punishable in Thailand only; almost every monarchy in the world has a provision that punishes it. Criminal codes in monarchies—including The Netherlands, Norway, Spain, Jordan, Morocco and Malaysia—punish this act. Moreover, the United Kingdom and Japan started decriminalizing it only recently. Even in non-monarchy countries such as Italy, Poland and Turkey, lèse-majesté laws still exist. In 2008, a French citizen was found guilty of lèse-majesté by a French tribunal for insulting President Nicolas Sarkozy. The European Court of Human Rights found in 2013, however, that the decision of this French court was in violation of the European Convention of Human Rights, pushing France to review its lèse-majesté law.

The bigger problem of lèse-majesté in Thailand is not, however, that this act is punishable under the country’s criminal code. It is rather about the content of this provision and how it is applied. In other words, although lèse-majesté laws are in general a threat to human rights, particularly the right to free speech; in Thailand the content of this provision and its application move this threat to a higher level.

Starting with its content, Thailand’s provision on lèse-majesté contains a very harsh punishment; a minimum of three years and a maximum of fifteen years is a very high punishment and do not meet the principle of proportionality of sentences. In assessing the proportionality of sentences, factors such as the harm caused or threatened to the victim have to be taken into consideration. In the specific case of Thailand, the victim protected by this provision, the King, has never complained about criticisms directed to him. On the contrary in 2005 King Bhumibol Adulyadej said: “Actually, I must also be criticized. I am not afraid of the criticism … if you say that the King cannot be criticized, it means the king is not human.”

Proportionality can also be assessed by comparing the sentence of one crime with other crimes of equal or higher seriousness. An analysis of the Thailand Criminal Code shows that the crime of lèse-majesté is one of the crimes with the harshest punishment. This offence is punished as severely as manslaughter. Compared to offenses in similar category, however, such as defamation and the offense of insulting officials, lèse-majesté carries a much higher punishment. While lèse-majesté carries a minimum of three years and a maximum of fifteen years, defamation is punishable by imprisonment not exceeding one year or a fine not exceeding twenty thousand Baht (about $600), or both. The offense of insulting officials caries an imprisonment not out of one year or a fine not out of two thousand Baht (about $61), or both.

There is no evidence that harsh punishment of this crime as applied in Thailand has any real deterrent effect. Harsh punishments rarely deter people from exercising their human rights. They rather lead to defiance and revolt.

Thailand is not the only country that prescribes severe penalties disproportionate to the seriousness of this crime. Unlike Thailand, however, the provisions on lèse-majesté in these countries have not been applied in centuries and have fallen into desuetude.

The second problematic aspect of the lèse-majesté provision in Thailand is related to the matter of its application. The most disturbing application of this law results from its categorization in Thailand as a crime against national security.

It is not disputed that the International Covenant on Civil and Political Rights ratified by Thailand in 1996 allows its state parties to subject free speech to certain restrictions as long as they are provided by law and are necessary (a) for respect of the rights or reputations of others; (b) for the protection of national security, public order, public health or morals. These limitations cannot, however, be based on assumed facts, their necessity must be proved by the government.

When justifying limitation that lèse-majesté imposes on free speech, most countries base the human rights limitation on the need to protect the rights and reputations of others. In contrast, Thailand uses the national security argument. Thailand argues that lèse-majesté is an offense against the security of the state because the monarchy is one of Thailand’s principal national institutions. It is not clear, however, why, if the goal is to protect national institutions, it is only this institution that is protected by a lèse-majesté provision. This approach seems also to be in serious violation of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information [PDF]. These principles provide that: “expression that constitutes … criticism of, or insult to, the nation, the state or its symbols, the government, its agencies, or public officials” among other things “shall not constitute a threat to national security.”

Another problem related to the application of lèse-majesté provision in Thailand is its politicization. There is a correlation between the decrease in arrest and prosecution for lèse-majesté during democratic regimes in Thailand and their increase during the military control of the country. According to David Streckfuss, a Thailand historian scholar, before the 2006 coup there was an average of five lèse-majesté cases per year. Since then, more than 400 cases have been brought to court. This even vastly underestimates police activities. In November 2014 the police reported that in recent years the police dealt with 10,000 cases of lèse-majesté. Human Rights Watch argued that lèse-majesté arrests are used by the military regime more to prove its loyalty to the monarchy than its commitment to the rule of law. Police, public prosecution, courts and administrative authorities are often afraid of rejecting allegations of lèse-majesté out of concern they might be accused of disloyalty to the monarchy. Also those charged with lèse-majesté are routinely denied bail and held in prison for many months awaiting trial. Recent reports that lèse-majesté trials are held behind closed doors in military courts even for civilian defendants are raising other human rights issues.

The abuse of the lèse-majesté law is no secret to the Thailand government. In 2010 Prime Minister Abhisit acknowledged its abuse and set up an Advisory Committee to advise the police and public prosecutor on the merits of lèse-majesté cases. Because of military pressure this committee did not, however, last for more than a month.

The problem of the lèse-majesté provision in the Thailand criminal code and its application is the tip of iceberg to a more serious crisis: one of rule of law and democratic governance. The prosecution of lèse-majesté has been used by the military to limit free speech, weaken democratic institutions and justify their authority as the only group speaking on behalf of the King. This approach cannot, however, be sustainable. It is alienating the legitimacy of the government and the judiciary and their support among Thailand citizens and it is leading to the isolation of Thailand internationally. The latter was recently illustrated by the Human Rights Council’s rejection of Thailand’s application to join it. The revision or repeal of the provision of the criminal code on lèse-majesté is therefore needed not only because it is essential for human rights but also because it is necessary for the development of rule of law and democratic governance in Thailand.

Jean-Marie Kamatali received his Bachelier en Droit from the National University of Rwanda, his License en Droit from the National University of Rwanda, his Masters from Notre Dame University and his Ph. D. from Karl-Franzens Universitat-Graz. Professor Kamatali has served as consultant for a number of US Government institutions, including the Department of Justice and USAID. Professor Kamatali previously taught at the University of Notre Dame and he currently teaches at ONU Pettit College of Law where he teaches International Human Rights Law, Legal Issues in Transitional Democracies, International Comparative NGO Law and Immigration and Nationality Law. He has previously been a consultant to a number of international organizations, including the Danish Center for Human Rights,the World Bank, UNICEF and FAO. He has previously, and is currently consulting with The Office of the UN Special Advisors on the Prevention of Genocide and the Responsibility to Protect.

Suggested citation: Jean-Marie Kamatali, lèse-majesté in Thailand: The Rule of Law Crisis, JURIST-Academic Commentary, Dec. 3 2014, http://jurist.org/academic/2014/12/jean-marie-kamatali-thailand-law.php.