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The law is the problem

Thanong Khanthong, in his “Overdrive” column in The Nation of March 6, argues that “there is nothing wrong with the lese majeste law.” The problem, he says, has more to do with enforcement: the law “has been abused by politicians, police and public prosecutors for their own political advantage.”

Thanong’s argument is very much in line with the views expressed about the law by the prime minister and other top politicians in the past few months. There are six points of contention expressed by Thanong and others that should be challenged.

Contention 1: There is nothing wrong with the lese majeste law.

Thanong has gotten it backwards. He says the law is fine, but problems happen with enforcement and abuse. However, in truth it is the law itself that makes its enforcement and abuse so terrible. There are no limits on the law. Anyone can make the charge. Everything can be construed as lese majeste. This is the reason that the law so easily becomes a political tool.

Contention 2: The lese majeste law is similar to libel laws that protect average citizens.

The lese majeste law is emphatically not like normal libel laws. All libel laws have exceptions or exclusions, which can include the expression of an honest opinion, fair comment on issues before the public, of speaking for the public good. Most importantly, truth can be entered as evidence. With lese majeste, there are no exclusions whatsoever.

Contention 3: There needs to be a lese majeste law or else those covered by the law cannot protect their own reputations.

This is misleading. In Thailand, those covered by lese majeste law (king, queen, heir-apparent) do not use the law to protect their reputations. Instead, it is the police or any number of citizens who use the law ostensibly to protect the reputation of the king, queen, and heir-apparent. However, in Norway it can be said that the king uses the law to protect his reputation, for cases can be pursued only with the consent of the king.

Contention 4: All constitutional monarchies have a lese majeste law. The Thai lese majeste law is normal.

True, most constitutional monarchies have a lese majeste law. But there are some important differences that make the Thai lese majeste law unique. Thanong mentions the Netherlands, but fails to point out what the penalty for lese majeste is there. In a recent case, the penalty for someone who had made inappropriate sexual comments about the queen was a 400 euro fine. In Thailand, the penalty is 3 to 15 years’ imprisonment, almost twice as high as anywhere in the past few centuries. If the penalty were increased to 25 years as the Democrat Party suggests, Thailand’s lese majeste law becomes absolutely incomparable. Judging from other constitutional monarchies, it is not in the least “normal.”

Contention 5: The lese majeste law is designed to protect the truth.

Thanong says “without any evidence,” “some anti-monarchists have tried to defame” the king concerning Sept. 2006 coup. This implies that were there evidence, then the case could be made. But lese majeste cases do not allow “evidence” about what was said enter into the proceedings. The truth (or falsity) of what was said has never been considered. The only evidence as such concerns the intentions of the accused. To make matters worse, no differentiation is made between “insult” and “defamation” in the law, when charges are drawn up, or when lese majeste cases are tried in court. Lese majeste is like blasphemy or heresy: when prosecuted, the actual contents of what was expressed are examined only to show the malicious intention; it is not intended to determine truth.

Contention 6: Citizens can criticize the monarchy in a “constructive or academic way. Normal criticism is acceptable.

Not true. There is no provision in the law, as with regular defamation, that stipulates the monarchy can be criticized, normally or otherwise. In fact, many Thais understand the constitution to say that no reference should be made about the monarchy. Who is to determine what is “constructive” or “academic”? Thanong says that one has “to differentiate between criticism of the monarchy in an objective manner and vandalism, libel or defamation against the monarchy with ill intent.” Ok. So what are some examples where “criticism of the monarchy in an objective manner” was allowed?

Article 301 of Turkey’s penal code, a lese majeste-like provision, prohibits denigration of Turkishness and Turkish public institutions. But investigations or prosecutions for Article 301 must be first vetted by the court. The law also clearly stipulates that only denigration is prohibited, and not criticism, which receives an exclusion. In Norway, no prosecutions are possible without the approval of the king. Other lese majeste laws provide various exclusions, and some stipulate only defamation and not insult. Even when these various limits fail, the punishment is not so severe.

For those lese majeste laws in other constitutional monarchies that in letter are similar to Thailand’s, there is little doubt that the law would be changed were the law used as vigorously as it is in Thailand.

In short, everything is wrong with the lese majeste law in Thailand. It does not protect the institution, but instead suppresses social critics.

Thanong should be congratulated for bringing up the issue of the law to readers. The prime minister, too, has said that reform of the lese majeste law will be discussed by the cabinet this week. These are encouraging.

But debate over the law should have some base in reality. The contentions above disregard easily available information from within Thailand and other lands. Thanong and various politicians in the government have put forward the view that enforcement is the problem. Accordingly, the law should not be touched at all: no revision, no abolishment. But this simplistic response should be seriously re-considered. The enforcement will never get better until something is done with the law itself.

For Thanong, the “core of the issue” is addressed by extolling the virtues of the monarchy, which in part explains why he feels the law is not the problem. The real core of this debate, though, is not the character of the monarchy, nor the ill intentions of those perceived as critical of the institution. What is really at question here is that the very nature of this law makes it prone to abuse, and as such, affects freedom of expression in a democratic Thailand.

Note: The Nation refused to publish this rebuttal.

David Streckfuss finished his Ph.D. in Southeast Asian History at the University of Wisconsin-Madison. His thesis examined defamation-based laws, including the lese majeste law. He can be contacted at dstreckfuss@yahoo.com.

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