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The author of this article is Theodore Ka Fai Fung, a first-year law student (Bachelor of Laws LLB) at King’s College London at the time of publication. This article is published as part of an initiative by the King's College London Student Division of Lawyers Without Borders.
In the Kingdom of Thailand, a country in Southeast Asia with nearly 70 million people, it is still a criminal offence to criticise the King and his royal family. This is known as the Thai lèse-majesté laws. Article 112 of Thailand’s Penal Code stipulates that, ‘whoever defames (minpramat), insults (dumin), or threatens (sadeng khwam-akhathamat-rai) the King, the Queen, the Heir to the Throne, or the Regent, will be punished'. The laws are also one of the harshest in the world, with the offence being punishable by up to 15 years of jail term [2].
This article will provide an overview of Thailand’s lèse-majesté laws. It will first discuss the extent of the jurisdiction of the lèse-majesté laws, and their effect on human rights, as well as the Rule of Law. The article will then provide examples of previous attempts by the people of Thailand to abolish these laws, through judicial review and civil disobedience.
Source: Photo by Evan Krause on Unsplash (License)
What counts as an insult towards the Thai royal family?
Political satire is not tolerated in Thailand. In 2015, two students from Thammasat University performed a play named The Wolf Bride, which featured a fictional king losing an eye in a car accident. The Ratchada Criminal Court in Bangkok held that the play parodied King Bhumibol and the students were jailed for 2.5 years [3]. Not even foreign citizens could be spared from this law, as Australian writer Harry Nicolaides was once arrested for writing a novel featuring characters that resemble members of the royal family. Although he retracted the book and publicly apologised for his “reckless choice of words”, bail was denied three times [4].
Unfortunately, the effect of the law extends far beyond political satire. According to past enforcement of the Thai lèse-majesté law, an “insult” towards the royal family can be something as simple as sharing news on social media. In 2016, former law student Jatupat Boonpattaraksa was charged with lèse-majesté for posting a BBC Thai article about King Vajiralongkorn on his Facebook profile, which was shared by more than 2,000 people. He was sentenced to 2.5 years in prison. In an interview with Reuters, the student activist admitted that fighting the charges would be futile [5]. The jurisdiction of the law apparently also extends to the King’s dog, despite there being no mention of royal pets in the legal text itself. In 2015, a man in Thailand faced up to 15 years in prison for posting on Facebook images of King Bhumibol’s favourite dog in a way that mocked the King, according to the prosecutor in the military court [6].
All of these prosecutions demonstrated the notoriously sweeping effect of the lèse-majesté law. This is supported by the United Nations Special Rapporteur, Frank La Rue, who described the Thai lèse-majesté laws as vague and the punishment as overly harsh [7].
What is the effect on human rights and the rule of law?
The chilling effect of the lèse-majesté laws on freedom of expression is not difficult to see, as the laws are often used to quash political dissent. The restrictions however extend beyond individuals to organisations, leading to concerns about press freedom. BBC Thai was investigated by Thailand for its publication of a biography of King Vajiralongkorn [8].Google was also requested by the Thai government to remove online content insulting Thailand’s monarchy. According to the Google Transparency Report, 1,880 requests of content removal were made by the Thai government officials [9].
Apart from concerns connected with the freedom of expression, there are also issues with the legal system in Thailand, which poses a threat to the Rule of Law. The United Nations High Commissioner for Human Rights pointed out that most of the hearings of lèse-majesté cases are closed to the public [10]. Apart from secret trials, lèse-majesté offenders were also denied the presumption of innocence, the right to bail pending trial, and the acceptance of truth as mitigating circumstances [11].
The government of Thailand tried to justify its position by associating lèse-majesté with religious blasphemy and libel laws. In a report submitted as part of the framework of the UN Human Rights Council Universal Periodic Review in 2016, the Thai government stated that ‘freedom of expression shall be exercised in a constructive manner that does not insult any faith or belief system, be they religions or main institutions’ [12]. Nonetheless, the argument was dismissed by the United Nations Office of the High Commissioner, suggesting that “lèse-majesté laws have no place in a democratic country” [13].
What are the people of Thailand doing to abolish the laws?
Unfortunately, there is no legal remedy to this problem. An attempt to abolish this archaic law through judicial review was made, but it was unsuccessful. In 2012, the lèse-majesté law was challenged in the Constitutional Court on petition from two criminal courts. By a unanimous decision of the judges, the Constitutional Court affirmed the constitutionality of the lèse-majesté law, holding that the law gave effect to Article 8 of the Constitution of Thailand, which states, “the King is sacred (sakkara) and inviolable (lameut mi day). Nobody can expose the King to any accusation or action of any sort” [14].
The court also dismissed the question of proportionality (satsuon), which was the main argument put forward by the claimants, suggesting that the penalty contained in Article 112 of the Penal Code is strictly necessary and appropriate [15]. As a consequence, the abolishment of the lèse-majesté law through the Thai judicial system was deemed no longer possible.
Recognising the futility of judicial review, the people of Thailand sought to repeal the law by means of protests and civil disobedience. Thousands have participated in peaceful marches, and many arrested as a result [16]. The failure of peaceful protests led to creative campaigns designed to attract global attention, like wearing crop tops as references to the king’s decadent lifestyle [17]. This has led to some success, as the campaigns led to solidarity from other Asian countries like Myanmar under a loose transnational network called “Milk Tea Alliance” [18].
Despite all the efforts, the pro-democracy movement lost its momentum since it took a break due to the coronavirus pandemic [19]. At the time this article was written (November 2021), the lèse-majesté laws have not been abolished yet.
Final Thoughts
Constitutional monarchies in European countries remain common, like the Netherlands, Denmark, Sweden, and the United Kingdom, where lèse-majesté laws have long been abolished. The idea of monarchs being sacred and inviolable might seem out of place in modern times, like Pharaohs being worshipped as demi-gods in Ancient Egypt. It is, however, important to remember that rulers abusing their power are still a reality in many parts of the world in the 21st century. Thailand is a place where people are starting to fight for their fundamental human rights, and history has shown it is possible for the people to stand up against the monarch. It is now up to the rest of the world to take actions to support these people through this constitutional moment.
References
[1] Harding A and Pongsapan M (eds), Thai Legal History: From Traditional to Modern Law (Cambridge University Press 2021)
[2] BBC News, ‘Lese-majeste explained: How Thailand forbids insult of its royalty’ BBC News (6 October 2017) <https://www.bbc.co.uk/news/world-asia-29628191>
[3] Agence France-Presse, ‘Two Thais jailed for 'insulting' royal family in university play’ The Guardian (23 February 2015) <https://www.theguardian.com/world/2015/feb/23/two-thais-face-jail-for-insulting-royal-family-in-university-play>
[4] Thornton McCamish, ‘The trouble with Harry’ Sydney Morning Herald (22 November 2008) <https://www.smh.com.au/national/the-trouble-with-harry-20081121-6e4z.html>
[5] Reuters Staff, ‘Thai activist jailed for two and a half years for posting BBC article’ Reuters (15 August 2017) <https://www.reuters.com/article/us-thailand-king-insult-idUSKCN1AV0YN>
[6] Jonathan Head, ‘Defaming a dog: The ways to get arrested for lese-majeste in Thailand’ BBC News (16 December 2015) <https://www.bbc.co.uk/news/world-asia-35099322>
[7] UN Human Rights, ‘Thailand / Freedom of expression: UN expert recommends amendment of lèse majesté laws’ United Nations (Geneva, 10 October 2011) <https://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11478&LangID=E>
[8] Oliver Holmes, ‘Thailand opens investigation into BBC for alleged insult of new king’ The Guardian (7 December 2016) <https://www.theguardian.com/world/2016/dec/07/thailand-investigation-bbc-alleged-insult-new-king>
[9] Google, ‘Google Transparency Report’ Google <https://transparencyreport.google.com/government-removals/overview>
[10] UN Human Rights, ‘Press briefing note on Thailand’ United Nations (Geneva, 13 June 2017) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21734&LangID=E>
[11] Eugénie Mérieau, ‘Thailand’s Lèse-Majesté Law: On Blasphemy in a Buddhist Kingdom’ (2019), 4 BLS 53.
[12] UNGA ‘National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21’ (1 November 2021) UN Doc A/HRC/WG.6/39/THA/1
[13] UN Human Rights, ‘Thailand: UN experts alarmed by rise in use of lèse-majesté laws’ (Geneva, 8 February 2021) <https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=26727&LangID=E>
[14] Ruling No. 28–29/2555 dated 10 October 2555 BE (2012 CE), para 11.
[15] Ruling No. 28–29/2555 dated 10 October 2555 BE (2012 CE), para 13.
[16] Rebecca Ratcliffe, ‘Thousands protest in Bangkok as Thai activists face charges of insulting king’ The Guardian (25 November 2020) <https://www.theguardian.com/world/2020/nov/25/seven-thai-activists-face-charges-of-insulting-king-on-eve-of-mass-protest>
[17] Bangkok Post, ‘Protest leader 'Rung' detained after bail denied in crop top case’ Bangkok Post (15 November 2021) <https://www.bangkokpost.com/thailand/politics/2215827/protest-leader-rung-detained-after-bail-denied-in-crop-top-case>
[18] Leela Jacinto, ‘“Milk Tea Alliance” blends Asian discontents – but how strong is the brew?’ France 24 News (1 March 2021) <https://www.france24.com/en/asia-pacific/20210301-milk-tea-alliance-blends-asian-discontents-but-how-strong-is-the-brew>
[19] Deutsche Welle News, ‘Thailand: Hundreds protest lese majeste law in Bangkok’ Deutsche Welle News (6 March 2021) <https://www.dw.com/en/thailand-hundreds-protest-lese-majeste-law-in-bangkok/a-56795671>
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