Lese Majeste: On the Right to Offend the Government

In Roman times, ruling emperors came to the conclusion that not only did they rule the state, they were the state. Thus, to criticise the emperor was to criticise the state. To offend the dignity of the emperor was to offend the dignity of the state. On this basis, invoking the coercive power of the criminal law was justified as a valid response to the emperor being offended.

Currently, only a handful of states still have this offence on the books. Of those, the offence is not often used (for example, in Denmark, the Netherlands, Spain and Iceland). However, there are some other countries, such as Kuwait, Jordan, Saudi Arabia and Morocco which continue to charge people with this offence on a regular basis.

In the Southeast Asian region, two countries have offences of lese majesté in their criminal law: Thailand and Malaysia. Malaysia uses the law of sedition as a pseudo-lese majeste law, charging those people who have allegedly insulted the royal household.

Under Thailand’s laws, the lese majeste provision has been increasingly used ever since the Thai military took power in 2014. Article 112 of Thailand’s Criminal Code specifies that lese majesté offences require conduct which ‘defames, insults or threatens’ the monarch. However, recent practice has shown that almost anyone who writes almost anything about the monarch which could be construed as less-than-100%-enthusiastic can be prosecuted.

Broadly speaking, it’s clear that there’s an underlying element of libel or defamation to each of these provisions: the crime arises due to the perceived criminal component of the publication. Consequently, a person accused of lese majeste can put forward the defence of truth. In a practical sense though, it is not clear that this exists in the context of Thailand.

In the build-up to the elections scheduled to be held in Thailand later this year, it is essential that this outdated offence is not used by the junta as a way to smother legitimate debate.

There is a real risk that dissenting political voices may not be heard, due to the scale of these prosecutions. In June 2017, the UN High Commissioner for Human Rights reported that between 2014 and 2016, at least 285 people were charged with lese majeste offences in Thailand. In 2016, only four percent of those charged were able to successfully defend themselves.

In light of this overwhelming conviction rate, there is a strong incentive for a defendant to plead guilty in order to maximise any available reduction in sentence — and lawyers acting for those charged with lese majesté-related crimes are ethically bound to give this information to their client. The implication of this is that the state – through the coercive power of the criminal law – is impinging on the fundamental right of a person to express themselves; and the fundamental right of a person to take part in the political process.

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Thomas Harré

Barrister, LawAid International