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Freedom of (silent) speech: Lèse-majesté law in Thailand and Spain

Amidst the current crisis of speech repressions, one of the most crucial but overlooked areas is the lèse-majesté law. Translated from French as “injured crown”, this draconian law criminalizes the act of insulting crowned figures and heads of states, often resulting in fines or imprisonment. Despite the repression on freedom of speech, lèse-majesté continues to thrive in over 20 countries across the globe - six in Asia and twelve in Europe. To undo the knot that undermines our rights of speech, it is imperative that we look into how lèse-majesté has continued to persist and operate in today’s world.



Backdrop of Thailand and Spain’s Lèse-Majesté Law


For this regional comparative analysis between Asia and Europe, Thailand and Spain have been chosen as examples. Both have notorious cases deriving from their use of lèse-majesté at both the regional and national level, as well as a divisive domestic environment surrounding the support of their monarch. Despite said similarities, there are notable differences in the language and severity of punishments in each legal article, the enforcement of law, as well as their external pressure and domestic support.



Credit: Markus Spiske

King Felipe VI : The Bourbon King and Article 490 (3)


The Spanish royal family or “The Crown” bears importance to the nation as a diplomatic representative and a symbolic entity. During the 20th century, the monarchy was briefly abolished in 1931 and remained so until 1947, when General Francisco Franco named Juan Carlos I of the House of Bourbon as his heir-apparent. After Franco’s death, Juan Carlos I played the core role of transitioning Spain into a democratic nation and was seen as the hero of the nation (Ünaldi, 2012). His son, King Felipe VI, came into power in 2014 with the hopes of maintaining the image of the royal family after the abdication of his father from his involvement in a money-laundering case and bribery. In contrast to his father, King Felipe VI presented himself as a dignified and respectable monarch, but his royal mission and transition from his father’s reign is far from easy amidst the rising anti-monarchy sentiment in the nation.

In the Spanish Criminal Code under Chapter II “On criminal offenses against the Crown”, Article 490(3) criminalizes the “slander” or “defamation” of the King, the Queen, or any royal descendants (Criminal Code 2016, 2016). Those deemed to have violated this code can face up to two years of imprisonment in the case of “serious charges”, while other charges will result in “a fine of six to twelve months”. While the Criminal Code separates these offenses into two levels, what constitutes a “serious” and “non-serious” offense were not defined in the law. Overall, the legal framework for lèse-majesté in Spain defines different levels and duration of punishment depending on the supposed severity of the offense.


King Maha Vajiralongkorn: Father of Thailand and Article 112


Royal figures, especially the King, retain a “demigod” status in Thailand since the founding of the Kingdom of Sukhothai after independence from the Khmer Empire in 1238 (Ünaldi, 2012). King Maha Vajiralongkorn (Rama X) is currently the 10th monarch of the Chakri Dynasty, a controversial figure known for his constant long-term tax-funded vacation in Bavaria, Germany, raising questions within the German government on his payment of property and inheritance taxes (Hutt, 2022). The ongoing demonstration in Thailand against the current government which was established during the 2014 Coup also saw calls for more accountability of the monarchy under the constitution and more transparency of royal budgets (Head, 2021).

Article 112 under the Thai Penal Code (1956) is placed under “Offenses Against the King, the Queen, the Heir-Apparent and the Regent”, which itself is under the title relating to the security of the Kingdom. Here, lèse-majesté is interpreted as a national security issue, as opposed to the Spanish legal framework which narrows it down to a constitutional offense. Article 112 states “Whoever, defames, insults or threatens the King, the Queen, the Heir-apparent or the Regent, shall be punished with imprisonment of three to fifteen years.” (Penal Code, 1956). Any individual can file a case against any person who is perceived to have insulted the royal family, in which the sentence for this allegation ranges from 3 to 15 years of imprisonment per count and with possible consecutive terms. In stark contrast to Spain's proportional division of offense severity, Thailand does not provide clear differentiation for a minor offense to a major one. This ambiguous language reduces constraints for the government to define the parameters of the crime and punishments, allowing it to be used as a tool against perceived dissidents or any individual.


Enforcement of Lèse-Majesté


Although both countries have legislation regarding the criminalization of criticism against the monarchy, its enforcement varies drastically. In Spain, lèse-majesté cases are often entwined with anti-terrorism and anti-separatism. One of the most prominent cases of defamation is the jailing of Pablo Hasel, a Spanish rapper who criticized the former King, as well as supporting separatist groups through his rap lyrics and tweets. He was jailed for 9 months for the crime of defamation, leading to city-wide protests and condemnation by Amnesty International on the rights of speech in Spain (Casey, 2021). Although the enforcement of Article 490(3) has not been frequent and notoriously used, the case has raised constant questions on speech censorship in Spain.

Compared to the Spanish case, Thailand’s Article 112 is notoriously severe and more liberally applied and enforced compared to most countries. The harshest recorded sentence was the 43-year imprisonment of Anchan (last name redacted) in 2015, which was halved from the original full sentence of 87 years after pleading guilty. Her “crime” was sharing audio clips that were deemed to be insulting the monarchy (Yuda, 2021). Between November 2020 and August 2021 amidst the frequent demonstrations in Bangkok, there were at least 124 lèse majesté convictions, including eight individuals under the age of 18 (Chachavalpongpun, 2021). Many of the charges were commuted after the defendant pleaded guilty. With the existence of this draconian law and the widespread fear of excessive punishments, citizens are restricted in voicing their opinions and addressing the problem freely.



External Pressure and Domestic Support


As a member of the European Union (EU), Spain is aware of the watchful eyes of the European Court of Human Rights (ECHR) and of the EU itself. The clear impact of the regional human rights court can be observed in the case of two Catalans burning royal pictures of the Spanish King and Queen. The act was deemed as an act of defamation against the monarchy and was charged with 15 months of imprisonment. However, it was later overturned by the ECHR, highlighting the impact of external pressure on Spain as an EU member (Minder, 2018). Domestically, the popularity of the royal family has taken a dip with questions posed by the youth on its relevance and the rise of anti-monarchism in Catalonia. According to the survey for the Platform for Independent Media, 40.9 % of Spaniards were in favor of the republican state model for the nation in 2020 following the abdication of King Juan Carlos (Keely, 2020). Nonetheless, due to fewer lèse-majesté cases, the law has been treated with more indifference when compared to Thailand.

Unlike Spain, Thailand does not have strong pressure from regional institutions. Thailand is a member of the Association of Southeast Asian Nations (ASEAN), an organization that is not as politically involved as the EU due to its non-interference principle, which discourages member states from interfering with each other’s internal affairs (Parameswaran, 2019). Furthermore, nearly half of ASEAN members continue to implement the lèse-majesté law: Thailand, Cambodia, Malaysia, and Brunei (Holmes, 2022). Lacking regional support and regional criminal courts, Thailand can only rely on domestic pressure from citizens and third-party organizations. Support for the monarchy has become highly polarized after the death of King Rama IX, whose long reign and personal popularity developed a deeply entrenched base among the older generation towards the monarchy. In contrast, many youths have become disillusioned with the monarchy especially under King Rama X’s controversial reign. A prime example of organizations advocating for the freedom of speech is 112Watch, a coalition of pro-democracy activists who disseminate information on the excessive use of Article 112. (112Watch, 2022). Despite significant dissent from new waves of youths and pro-democratic alliances pushing against the censorship of speech, the status of the monarchy is still solidified in the society through strong support from the older generation.



Conclusion


Between the two nations, the severity and liberality in the usage of lèse-majesté is much more drastic in Thailand. Article 112’s ambiguous definitions has made it one of the world’s harshest lèse-majesté law, as well as a convenient tool to politically repress opposing voices againsts the royal family. Although Spain has been home to prominent defamation cases, its defined legal framework and EU-membership-status has given the nation a balanced enforcement of lèse-majesté when compared with Thailand. Nonetheless, democracies cannot thrive with hands being placed on people’s mouths, no matter how “soft” it may be seen. It is time for us to address the elephant in the room and ask the question of relevance and necessity of these repressive laws.




This article represents the views of contributors to STEAR's online digital publications, and not those of STEAR, which takes no institutional positions.



 


References


Casey, N (2021, February 27). Rapper’s Arrest Awakens Rage in Spanish Youth Chafing in Pandemic. The New York Times. https://www.nytimes.com/2021/02/27/world/europe/barcel ona-protests-pablo-hasel.html


Chachavalpongpun, P. (2021, November 9). Thailand’s Lese-Majeste Law Takes Center Stage at UN Rights Review. The Diplomat. https://thediplomat.com/2021/11/thailands-lese-majeste-law-takes-center-stage-at-un-rights-review/


Head, J. (2021, November 10). Thai court says calls for monarchy reform unconstitutional. BBC. https://www.bbc.com/news/world-asia-59230566



Holmes, S (2022, August 19). How Lese Majeste Laws Are Eroding Free Speech in Southeast Asia. The Diplomat. https://thediplomat.com/2022/08/how-lese-majeste-laws-are-eroding -free-speech-in-southeast-asia/


Hutt, D. (2022, February 14). Thai king under scrutiny in Germany. Deutsche Welle. https://www.dw.com/en/thai-king-maha-vajiralongkorn-under-political-and-tax-scrutiny-in-germany/a-60770986


Keely, G. (2020, October 12). Poll finds over 40% of Spaniards back republic in wake of royal scandals. Reuters. https://www.reuters.com/article/us-spain-royals-referendum-idUSK BN26X0W6


Ministry of Justice (2016). Criminal Code 2016. Ministry of Justice. https://www.mjusticia.gob.es/es/AreaTematica/DocumentacionPublicaciones/Documents/Criminal_Code_2016.pdf


Minder, R. (2018, March 13). Burning king's picture is free speech, European Court warns Spain. The New York Times.https://www.nytimes.com/2018/03/13/world/europe/echr-spain- free-speech.html


Parameswaran, P (2019, November 13). ASEAN and Non-Interference: What Do Cambodia’s Evolving Opposition Dynamics Reveal?. The Diplomat. https://thediplomat.com/2019/11/asean-and-non-interference-what-do-cambodias-evolving-opposition-dynamics-reveal/


Investigation and Legal Affairs Bureau, Government of Thailand (1956). Penal Code.International Labour Organization. . https://www.ilo.org/dyn/natlex/natlex4.detail?p_isn=82844&p_lang=en


Ünaldi, S. (2012). Modern Monarchs and Democracy: Thailand’s Bhumibol Adulyadej and Juan Carlos of Spain. Journal of Current Southeast Asian Affairs, 31(2), 5–34. https://doi.org/10.1177/186810341203100201


Yuda, M. (2021, January 19).Thai woman sentenced to 43 years in jail for lese-majeste. Nikkei Asia. https://asia.nikkei.com/Politics/Turbulent-Thailand/Thai-woman-sentenced-to -43-years-in-jail-for-lese-majeste

112 in depth (2022).112 watch https://112watch.org/112-in-depth/


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