Written by Samantha Holmes, Asia Advocacy and Communications Officer at ARTICLE 19.
This article was originally published on The Diplomat.
Across Southeast Asia, increasingly authoritarian governments are systematically corroding freedom of expression as their tolerance for dissent and criticism deteriorates. States continue to harass, sue, and imprison activists and human rights defenders at alarming rates, as documented by ARTICLE 19’s Global Expression Report 2022. Repressive governments in the region are weaponizing a range of laws to silence criticism and preserve their corrupt regimes. Of these, archaic lèse-majesté laws are arguably the most problematic of them all.
Lèse-majesté, the crime of insulting the monarchy, is an outdated defamation offence that provides extra protections to unelected rulers. Criminal provisions enshrining lèse-majesté have been repeatedly categorized as undemocratic and in violation of freedom of expression. While some countries still have lèse-majesté provisions that violate human rights, those in Southeast Asia are among the most concerning. Thailand, Cambodia, Malaysia, and Brunei have lèse-majesté laws and continue to implement them to restrict freedom of expression. Systematic prosecutions under lèse-majesté laws in Thailand, Cambodia, and Malaysia intentionally extinguish activism, criticism, and dissent.
The United Nations Human Rights Committee has unequivocally stated that “the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties.” Monarchs, alongside any other sovereign or ruler, are legitimately subject to criticism and opposition and the value of uninhibited expression is particularly high regarding public debate in the political domain. Lèse-majesté laws are therefore fundamentally incompatible with international human rights law and, as repeatedly emphasised by various U.N. experts, “have no place in a democratic country.”
In February 2018, the Cambodian government amended its Criminal Code to include a lèse-majesté offence: Article 437-bis, titled “Insulting the King.” The provision prohibits “insults addressed to the King,” defining this as “any speeches, gestures, scripts/writings, paintings or items that would affect the dignity of the King.” A conviction under this article results in a mandatory sentence of one to five years’ imprisonment. The introduction of this offence in 2018 prompted Cambodia’s score for “abuse of defamation laws” to decline in ARTICLE 19’s Global Expression Report.
Criminal penalties are never a proportionate punishment for reputational damage. Cambodia’s obligatory prison term for lèse-majesté is an egregious departure from the principles of necessity and proportionality that underpin the protection of freedom of expression in international human rights law.
Since the lèse-majesté provision was passed in 2018, Cambodian authorities have levied charges against individuals in 15 cases leading to the conviction of seven individuals. The majority of people who dare to speak critically about the monarchy and who are subsequently prosecuted are political dissidents and rights activists. Six of the convicted individuals were members of the dissolved opposition party, exposing the political motivations that underpin Cambodia’s use of lèse-majesté.
While some of those prosecuted spoke publicly about the king, it is very concerning that at least five persons were indicted under lèse-majesté provisions on the basis of private conversations. The transcript of a phone call between two political dissidents was used to convict them under Article 437-bis and video footage of a private zoom call is purportedly the basis of lèse-majesté charges against three prominent environmental activists, whose verdicts are still pending. These practices indicate that their private communications had been covertly monitored by the authorities.
Thailand has forbidden criticisms of the monarchy since the early 20th century; its notorious lèse-majesté law is one of the strictest in the world. Section 112 of Thailand’s Criminal Code prohibits defamation, insults and threats to “the King, the Queen, the Heir-apparent, or the Regent.” The excessively broad formulation of this provision allows abuse in its interpretation, encapsulating opinions, criticism, and statements of fact, which international human rights law determines cannot be legitimately restricted under the aim of protecting the reputation of public officials and figures, including the monarchy and its representatives. A conviction under Section 112 mandates an automatic prison sentence between three and 15 years – three times the length of the prison sentence mandated under Cambodia’s parallel law.
At the end of 2020 a de facto moratorium on the use of the law came to an abrupt end and authorities began to prolifically prosecute for alleged lèse-majesté, with in excess of 200 individuals charged since. Due the severity of the penalties it carries, Section 112 became a popular government tool for silencing dissidents. The revival of Section 112 was a direct response to the sweeping pro-democracy movement in Thailand in 2020. As people took to the streets to exercise free speech and their right to protest to demand democratic reform, including limits to the power of the Thai monarchy, authorities sought new (or rather old) ways to stymie the movement and suppress public discourse concerning the monarchy.
In an appalling overreach of power, authorities target expression only tangentially related to the monarchy. For example, under Section 112 authorities have prosecuted a former opposition politician who criticized a pharmaceutical corporation substantially owned by the king regarding the domestic production of COVID-19 vaccines. Additionally, authorities have made arrests under Section 112 for speech regarding former monarchs and other members of the royal family, stretching beyond the established scope of the provision which, as the law is written, applies only to the ruling king or queen or the immediate successor to the throne. Authorities have also prosecuted activists for their criticism of Section 112 itself. One prominent human rights defender was charged for quoting a statement from a U.N. human rights expert about the law’s incompatibility with democracy.
In Malaysia, insults to the royalty are criminalized through the archaic Sedition Act, a conviction under which is punishable by up to three years imprisonment for first-time offences and up to five years for subsequent ones. The wording of the law is exceptionally ambiguous, requiring that the accused “utters any seditious words” or undertakes conduct “which has or which would, if done, have a seditious tendency.” The law includes within its definition of a “seditious tendency” an act that “bring(s) into hatred or contempt” or “excites(s) disaffection against any ruler.” The subjectivity of this language and lack of legal certainty surrounding words such as “hatred,” “contempt,” and “disaffection” has enabled authorities to manipulate the law to silence critics and suppress dissent.
The Sedition Act is an essential instrument within a broader legislative framework that Malaysian authorities use to thwart non-conforming speech regarding religion, race, and royalty – the three Rs. Parallel to the internet becoming more accessible, Malaysia’s Communication and Multimedia Act has been increasingly deployed to criminalize online expression deemed insulting to the country’s nine royal families. Both laws are wielded by the Malaysian government to quash speech about the royalty but also to instill a culture of fear and self-censorship among ordinary citizens and inculcate values of taciturnity and compliance throughout society.
Between January 2020 and May 2022, the Malaysian authorities reported opening 182 investigations for cases of suspected insults of the royal institution. As with Cambodia and Thailand, Malaysia joins the regional trend of employing its lèse-majesté laws to reprimand activists and human rights defenders. In one case, a Malaysian activist and political artist was arrested for creating a Spotify playlist using an image of the Queen.
Lèse-majesté laws are irreconcilable with freedom of expression. Across Southeast Asia, governments are strategically enforcing these laws to legitimize censorship and shield unelected rulers from public scrutiny or debate. Lèse-majesté laws perpetuate a culture of oppression and have a chilling effect on open democratic debate.