Human rights and lese majeste

11 02 2013

Readers will find the Bangkok Post’s publication of a speech by Tjaco van den Hout is former ambassador of the Netherlands to Thailand of interest. The article is said to be an abbreviated version of a speech made at an EU seminar on “Reconciliation and Freedom of Expression” in Bangkok in January. PPT won’t repeat it; rather we highlight a couple of points.

He begins by noting that restrictions on freedom of expression – what he describes as a “primary right” – under Article 19 of the International Covenant on Civil and Political Rights,

… are legitimate only if they satisfy the “three-part test”. This means that the restrictions must be provided by law that is; 1) clear and accessible to everyone, 2) proven to be necessary and legitimate to protect the rights or reputations of others, national security or public order, and public health or morals, and 3) proportionate and the least restrictive to achieve the purported aim.

He notes that General Comment No. 34 of the Human Rights Committee clarifies that:

invoking national security provisions with the aim to suppress or withhold from the public “information of legitimate public interest” that does not harm national security or to prosecute journalists or others for having disseminated such information is incompatible with Article 19 of the ICCPR.

… the principle of proportionality, indicating that this principle “has to be respected not only in the law that frames the restrictions but also by the administrative and judicial authorities in applying the law”.

Finally, on a separate but related matter, it advises state parties to decriminalise defamation (including lese majeste). “In any case, the application of the criminal law should”, according to the Committee, “only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.”

He also notes that the European Court of Human Rights has recently been called to adjudicate when national courts have make decisions on defamation cases, including lese majeste, and mentions two: Otegi Mondragon v Spain (March 15, 2011) and Tusalp v Turkey (Feb 23, 2012).

In adjudicating, the European Court:

… bases its view on the notion of “democracy”. While not defining this notion as such, the court does offer us what it should entail: “pluralism, tolerance and broadmindedness”. Without these, the ECtHR states, “there is no democratic society”. In addition, open public debate is, in its view, essential for any democratic society to function. Consequently, the discretion of a government to restrict the right to freedom of expression on matters of public interest including political issues is very limited indeed.

Where lese majeste is concerned, Thai courts make no such decisions based on either notions of constitutionality or ideas about democratic freedom.


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