David Streckfuss: Lese majeste and monarchiesSubmitted by prachatai on Sun, 18/03/2012 - 15:06
See all clips of the event here.
I attempt answers to two sets of questions in this paper. The first is: How is it that many of the constitutional monarchies in Europe are also some of the most democratic countries in the world? What are these monarchies doing right? Or maybe better said, what are they not doing wrong?
The second is: Using the same metrics, how does the Thai monarchy stand up? And what does the answer tell us about the dynamics of the debate over the lese majeste law?
The first metric examines the position of the monarchy within the constitutional order in Europe. Including all but one, monarchs make a public oath to respect the constitution. Article 32 of the constitution of the Netherlands stipulates that: “…The King shall swear or promise allegiance to the Constitution and that he will faithfully discharge his duties. …” Article 19 of the Norwegian constitution reads: “As soon as the King, being of age, accedes to the government, he shall take the following oath before the parliament: ‘I promise and swear that I will govern the Kingdom of Norway in accordance with its Constitution and Laws; so help me God, the Almighty and Omniscient.’”
The second metric concerns the role of opinion polls. In 2010 and 2011, there were at least 10 opinion polls on the monarchy carried out by various Danish newspapers and polling organizations, 17 in Sweden, and 3 in Norway. In Denmark some of the questions asked were:
Should the queen abdicate or not, and when?
How well is the Queen performing her duties?
How are the performances of the Prince Consort and the Crown Prince?
Should the Queen have the power to approve laws or appoint the prime minister?
In Sweden, the questions were:
Should the king retire and abdicate in favor of the popular Crown Prince Victoria? (yes, 37% said yes, 45% said no)
Who is your favorite member of the royal family?
Which member of the royal family is best suited to become head of state?
How much confidence do you have in the king (39% said they did, 35% said they did not)
The function that polls serve is to remind the royal family that they are public figures and as such subject to public comment. Opinion polls help royal families know where they stand before their public, and to make adjustments.
The third metric is transparency in royal spending. As most use public funds, the monarchy, just as any other institution in society, is open to public scrutiny. In the chart, it can be seen that the public cost of monarchy in Luxembourg is $22 a year per person. The royal family of tiny Liechtenstein, on the other hand, pays all of its own costs. The relative burden of monarchy in relation to average income shows, for instance, that Spain is the most frugal and least burdensome cost-wise of the larger kingdoms. In comparison to Spain, the relative burden is 20 times greater in Norway. And for comparison’s sake, the cost of a head of state in non-royal Germany is the second-most economical.
In the past few years, monarchies in Europe have increasingly made their expenses open. Buckingham Palace, for instance, has become acutely aware that every pence of public money it spends will be scrutinized. A spokesperson for the palace recently argued that “Queen Elizabeth II and the royal family are a relative bargain for taxpayers” as it costs each a mere 66 pence per annum, the equivalent, the queen’s website reported, to “the cost of two pints of milk or a download to an iPod.” Transparency makes monarchies accountable.
The fourth metric is the use of the lese majeste law. It is useful first, though, to consider the legal status of European monarchs. Most of the constitutions in Europe’s monarchies afford special, if not sacred, status to its monarch. Norway’s constitution reads: “The King’s person is sacred; he cannot be censured or accused.” The real question really revolves around legal liability. Saying that the monarchy cannot be sued by private individuals or charged by the police is quite different from saying the monarchy cannot be criticized at all. In Europe, monarchs are free from legally liability, but not from criticism.
The lese majeste law in Norway, the Netherlands, Spain, and Belgium is located in the section on the security of the state, with penalties ranging from two to five years. In Sweden and Denmark, though, the lese majeste provision is also linked to the normal defamation law which has a punishment of a fine or imprisonment for up to 4 months for minor infractions. For serious violations that are the product of “widespread bad faith” and lacking “reasonable grounds,” punishment can be raised to imprisonment for two years. Th elese majeste law only says that if such defamation is made against the monarch, the punishment can be doubled.
A number of countries also include an exclusion clause. In Denmark, exclusion from guilt in lese majeste comes from the exclusion for normal defamation in which there is no guilt when the truth of an accusation can be proved or for statements made “in good faith” or “in legitimate exercise of obvious public interest.” In Norway, the lese majeste law can be initiated “only by order of the King or with his consent.” In Denmark, the lese majeste law can only be used by order of the Ministry of Justice.
Having said this, it is important to note that the law is hardly ever used in the constitutional monarchies of Europe. Denmark apparently hasn’t used it since 1934. There have been a few cases in the Netherlands and Spain in the last number of years, but they resulted in fines or short jail terms.
The simple fact is that it is not in the interests of the monarchy to have a law used in its name. Frequent, or even occasional, use of the law may have grave implications and no doubt would appear on one of those often used and pesky opinion polls.
The fifth metric examines what constitutes treason. What I didn’t mention above is that the most frequent opinion poll question is whether the institution of monarchy should be retained, or whether it should be removed. Republican sentiment and debates of the merit of monarchy versus republic is a normal feature of any European constitutional monarchy. Republican parties and republican movements are not seen as attempts to “overthrow the monarchy.” It is doubtful that very many of the Norwegians, Swedes, or Spaniards who define themselves as monarchists label the other side as traitors. Republicans and monarchists alike are considered as good citizens.
Bad Swedish citizens are those who violate Section 1 of Chapter 8 of the Swedish penal code, those who, “with the intent that the form of government be overthrown by force of arms or other violent means.” They are guilty of High Treason. It is considered as a “crime against civil liberty,” for such actions endanger all citizen’s rights to “freedom of speech, assembly or association.” Treason is, in other words, an attempt to cripple the mechanisms of democracy. On the other hand, a peaceful movement to eliminate the institution of the monarchy through democratic means is not treason: it is merely democracy in action. Republicanism is taken as yet another way to express democratic aspirations.
That said, republicanism has not grown very significantly in any of the European constitutional monarchies. Within the last decade, the highest percentage of persons polled in any of the countries under review who preferred a republic was 28% in Sweden in 2010. Over a ten-year period, those favoring retention of the monarchy dropped from 85 per cent in 2000 to 80 per cent in 2005, and finally down to 58% in 2010. Certainly, it is a wake-up call for the Swedish royal family. But any change toward republicanism in Sweden or anywhere else in Europe is not imminent. And, as I have argued here, part of the secret of maintaining monarchies is not to do anything too terribly wrong.
The case has been made that constitutional monarchies have survived into the 21st century in Europe because monarchs have had to justify their existences in response to general practices necessary for the basic functioning of the public sphere—public accountability, transparency, and the freedom of cultural and political expression. It may not be so surprising, then, to discover that the constitutional monarchies of Europe are some of the freest societies in the world.
Turning to Thailand, the situation is quite different. For the first metric, there was a lot of fuss made when the Nitirat group suggested that the king make an oath before the parliament to respect the constitution, as is observed in Europe. The suggestion was taken as an affront. A prominent newspaper columnist said that the Nitirat group’s suggestion “offended ordinary people who strongly feel the group has crossed the line. Personally, I feel that the suggestion is insulting for our King to take an oath before MPs, many of whom have tainted backgrounds and questionable credibility.”
The result: the monarchy’s position in relation to the constitution remains unclear.
As for the second metric of opinion polls, well, obviously accurate polls are not possible with the existence of the lese majeste law.
For the third metric—transparency–Thailand actually does better than some of the European monarchies. If you can’t see the figures, don’t worry. $75 million is for royal projects, $20 million is for costs connected to acting as head of state, and $92 million for the Bureau of the Royal Household. The other $180 million or so is for a single activity: “Plan to uphold, protect, and maintain the institution of the monarchy,” divided between the prime minister’s office, the military, the public works department, and the police.
There might be other costs connected to the monarchy that don’t appear here. For instance, there are no funds specified in the Ministry of Communication and Information Technology dedicated to finding and blocking seditious websites. And of course the budget here doesn’t clear up any of the issues surrounding the Crown Property Bureau. It does help society to know that the budget for the monarchy has increased by 45% since 2005…
Predictably, the greatest difference between Europe and Thailand lies in its use of the lese majeste law. In Thailand, Section 8 of the constitution reads: “The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.” This is interpreted in Thailand unconventionally as a blanket prohibition of criticism, and is linked to the lese majeste law.
Unlike Europe, the lese majeste law in Thailand admits no exceptions. There is no structural restraint, and certain individuals have lodged as many as 15 cases with the police. The punishment is greater than any lese majeste law seen in the world in the past few centuries. But mostly, whereas it is a rarely used, archaic remnant of a bygone era in Europe, in Thailand it is used with utter abandon.
As can be seen, the number of charges going before the lower court peaked in 2010, and dropped down to 85. This is still a far cry from the average 5 to 6 cases per year Thailand saw from the early 1990s to 2005. As a result, Thailand ranks well below many authoritarian monarchies in terms of press freedom.
In this paper, I was originally going to talk about the lese majeste law in terms of human rights. I was going to reject what the Thai government had claimed before the UN last year that “The right to freedom of opinion and expression is the bedrock of Thailand’s democratic society” or that “Thailand has strived to find a balance between protecting the monarchy, which is a main pillar of the nation’s identity and security, and the right of individuals to express their views.” Certainly, Thailand’s human rights record has been a disaster.
But instead I want to talk about the dynamic of the discourse that has come to surround the question of amending the lese majeste law. A number of academics and journalists have offered the view that the debate over the lese majeste law is like a collision between the sacred and the public sphere, between the rational and the religious.
Let’s review some statements made in the last few months. It began in court rulings where judges inserted a sort of statement of faith:
Thai Criminal Court, in refusing bail to a lese majeste suspect: “…under the severity of the charge and the case which is an act against HM the King, HM the Queen, and the Heir-Apparent, this is considered a severe issue and has effect on the Thai public.”
Thai Labor Court: “it can be seen that the spirit of the Thai nation is unlike the identity of other nations which is accepted or is known well to be that the Thai people respect and revere the king.”
A General: “Thailand owes its presence on the world stage and the respect it commands within the global community to the role of the monarchy. His Majesty the King has done nothing to harm the nation and everything to help it.”
The Same General: “…if you speak negatively of the monarchy, then I must speak negatively of you, because you refuse to see the good in Thailand. The nation respects the royal institution, and the Nitirat group–who say Section 112 stifles freedom of speech–is hurting people’s feelings.
A Senator: “Those who want Section 112 of the Criminal Code changed don’t actually want the law to be more lenient but their target is to allow people to insult, defame, create malice and cause the institution not to be tolerated.”
Thammasat University Law Alumni Club Leader: “Disciplinary probes should be launched against the lecturers as they have shown they do not have faith in democracy with the King as head of state.”
The King Prajadipok Institute’s Society’s alumni body: “This is not about laws, but about the faith.”
That’s right. It’s not about laws. It is about faith. Lese majeste has always been on the far end of the continuum of defamation-based laws. In fact, its original form was one of blasphemy. And in the reign of blasphemy, common truths have no place. In blasphemy trials, there is no argument about the veracity of what was said. The focus is on the insult of the sacred, the sacrilege, the hurt.
One side is talking about freedom of expression and legal principles. The other is talking about protection of a religion against blasphemous libel as embodied in the lese majeste law. It is not merely that the followers of the sacred royal cult don’t seem to be responding to those who want to amend the lese majeste law; they are speaking an entirely different language:
In a religious society where non-believers are hunted down and beaten, where can refuge be found except for in a humiliated silence?
Doesn’t this commentary on the right to freedom of expression and the right freedom of thought, conscience and religion,” really describe Thai society today:
No person may be subject to the impairment…on the basis of his or her actual, perceived or supposed opinions. All forms of opinion are protected, including opinions of a political, scientific, historic, moral or religious nature. [States may not] criminalise the holding of an opinion. The harassment, intimidation or stigmatisation of a person, including arrest, detention, trial or imprisonment for reasons of the opinions they may hold, constitutes a violation of [this] article….If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations of ruling parties, etc., or in actual practice, this shall not result in any impairment of the freedoms under [this] article …nor in any discrimination against persons who do not accept the official ideology or who oppose it.”
In summary, the greatest difference between the European monarchies and Thailand comes down to treason. Treason in Europe is to use violence in suppressing the democratic aspirations and rights of citizens. In Thailand, treason has become heresy.