Human rights and lese majeste

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.

Lese majeste in other places

A few days ago PPT posted a link to a story on an Institute of Security and International Studies meeting at Chulalongkorn University and presentations was by the ambassadors of Japan, Norway, Spain and the Netherlands. Since then, the Bangkok Post has had a report or summary of some points masquerading as an op-ed by Achara Ashayagachat (9 December 2009: “Public support is key to royals’ survival”). Netherlands Ambassador Tjaco van den Hout seems to have a problem with her reporting and the Postbag has this letter:

Re: the article “Public support is key to royals’ survival” written by Achara Ashayagachat (Bangkok Post, Dec 9). On behalf of Netherlands Ambassador Tjaco van den Hout, hereunder is the correction of the statement attributed to the ambassador in the above-mentioned article. What the ambassador said, verbatim, was:

“Nowadays, Dutch law enforcement authorities must determine whether prosecution of a violation of lese majeste law is genuinely in the interest of the monarchy. Sometimes it is not. On the contrary, prosecution can be counter-productive and actually undermine that which the lese majeste law sets out to protect. Prosecuting acts of lese majeste not only draws more public attention to the offence itself, which might be undesirable, but also inevitably to a judicial practice that in today’s society is seen to be blatantly at odds with the principle of equality under the law _ a principle cherished by most democratic societies.”

PANNAWAT WONGSASITHORN

Secretary, Political Affairs and Development Cooperation

Embassy of the Kingdom of the Netherlands

Managing lese majeste

Update: Bangkok Pundit has more critical commentary on the Bowornsak article. Recommended reading.

In an article in the Bangkok Post (21 May 2009: “Europe’s lese majeste laws and freedom of expression”)  Dutch ambassador to Thailand Tjaco van den Hout has a useful account of the application of the various lese majeste laws in Western Europe.

The ambassador specifically points out some shortcomings in recent articles by Bowornsak Uwanno, published in early April in three parts in the Post (see PPT’s commentary here and here) . Specifically, he identifies Bowornsak’s failure to address the application of the laws in Europe and the accession of all of the European constitutional monarchies mentioned by Bowornsak to the European Convention on Human Rights and Fundamental Freedoms.

Hout’s critique is both enlightening and damaging to Bowornsak’s arguments that are essentially royalist apologias for Thailand’s draconian law on lese majeste.

Meanwhile, both the Bangkok Post and the Nation have reports, neither of which are particularly clear, that briefly state that “action websites deemed offensive to the monarchy” are now under the purview of the Department of Special Investigations (DSI). One of the reports seems to indicate that this relates to just cases currently being investigated.

The impact of this change is unclear, but as the DSI is supervised by Democrat Party power broker Suthep Taugsuban it may be expected that the cases will indeed receive special attention. This is probably not a positive development as the DSI, often seen as somehow “independent” is actually highly politicized.