'national honour' and the state

This page highlights notions of national honour and insulting the state.

It covers -

• introduction
• from lèse majesté to lese nation
• national dignity in the digital environment
• speaking truth to power?

     introduction

Preceding pages have explored defamation of individuals. What of notions of 'insulting' a nation's 'honour' (or that of the 'national community') or a nation's head of state and agencies such as the armed forces?

Defamation laws generally aim to restrict at false assertions of fact and seek to ensure that an individual's reputation is not unjustly harmed. Insult laws, typically characterised as protecting "honour and dignity" rather than reputation, can be used to punish both truth and falsehood. The World Press Freedom Committee's Hiding From The People (PDF) report notes insult laws encompass opinions, well factual statements, satire, invective and even bad manners. A map of criminal defamation regimes is provided by Article 19.

Recent prosecutions for 'defaming' a country or 'insulting' a senior personage or institution have typically been used to repress dissent by ethnic or political groups within a nation or to crimp criticism of dignitaries by local journalists, who often face criminal proceedings alongside threats or violence by vigilantes. The notion of insulting a state - or that particular individuals and institutions are beyond criticism - poses difficulties for liberal democracies.

     from lese majeste to lese nation

As we noted in discussing sedition, blasphemy and censorship pre-industrial states featured prohibitions against subversive speech and action.

That subversion might be directed against an institution or an individual who was considered to embody the state, eg the monarch or a magistrate. It might be abstract or quite personal, eg mocking the amours of a notable or flailing the corruption of a minister of state. It might be addressed through time in the pillory, beheading, removal of nose and ears, branding with a hot iron, a spell in the galleys or simply a public burning of an offensive pamphlet or print. That action served to reinforce perceptions of public order by punishing supposed malefactors and deterring future critics.

The past century saw a shift from lese majeste to lese nation as many states came to emphasise offences against the honour of the state, rather than that of the monarch or other figures at the top of political/social hierarchies.

Such offences encompassed criticism - or merely unwelcome media coverage - of institutions such as the army and judiciary. They also encompassed 'insults' to the national flag or insignia, a category of affront which might extend from daubing a crest with paint and trampling on a flag through to refusal to step into the gutter when encountering an officer or magistrate on a footpath.

Much of the legislation appears to have been modelled on provisions in France's 1881 Press Freedom Law, adapted by Spain (and by Latin American republics) and by the former Eastern Bloc.

Article 161 of the Ukraine penal code for example provides for imprisonment for up to two years over "humiliation of national honor and dignity". Ecuador specifies that

One who, with threats or insults, offends the President of the Republic or one who is exercising the executive function, shall be punished with six months to two years in prison and a fine.

Section 8 of the Thai Constitution reads

The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action.

Malawi's 1967 Protected Names, Flags and Emblems Act prohibits any person from insulting or ridiculing Malawi's flags, emblems and 'protected names', which include the name of a sitting president.

Brunei's constitution (which helpfully declares that "His Majesty the Sultan ... can do no wrong in either his personal or any official capacity") features a global warning against criticism of the absolute ruler -

No person shall publish or reproduce in Brunei or elsewhere any part of proceedings ... that may have the effect of lowering or adversely affecting directly or indirectly the position, dignity, standing, honour, eminence or sovereignty of His Majesty the Sultan.

As of 2006 the Sultan was Prime Minister, Defence Minister, Finance Minister, Supreme Commander of the Armed Forces, Supreme Head of Islam, chief of the Royal Brunei Police, head of the petroleum unit and of broadcasting & information services.

'Insult' is sometimes construed as insult to the national flag or insignia: flag burning is thus sometimes criminalised. It can be treated as a catch-all, with codes of practice for ISPs in China for example specifying that service is conditional on respect for "national honour", something that is sufficiently commodious to extend from risque blogs through to reporting that officials have beaten protesting farmers to death and that chemical spills have threatened the environment.

Insult enactments remain in place in many nations, including EU members such as France and Spain, although they are rarely used in advanced economies.

     national dignity in the digital environment

The World Press Freedom Committee cogently argues that insult laws are inappropriate because -

1. Legal remedies already exist, in civil libel and slander legislation, to provide recourse for perceived defamation.

2. Public officials deserve less - not more - protection from reporting and commentary than ordinary citizens. Having sought public office, they are the servants of the public, not its masters. The European Court of Human Rights has on numerous occasions expressed this view in turning aside legal efforts to punish 'insult'. It said in a case involving Croatia’s irreverent Feral Tribune, "the very function of the press in a democratic society (is) to participate in the political process by checking on the development of the debate of public issues carried on by political office-holders".

3. Democracy and economic prosperity are not possible without public accountability of leaders, transparency in transactions, and vigorous public discussion of issues and choices.

4. Press freedom cannot be said to exist in a nation where journalists are jailed for their work. And without press freedom, no nation can call itself a democracy.

5. Full participation in the international political and economic community is not possible as long as a nation fails to abide by the principles of good governance accepted by that community. All nations are bound by the Universal Declaration of Human Rights, and its broad call for the free flow of information and ideas through any media and regardless of frontiers.

Turkey's admission to the European Union is being complicated by prosecution of satirists who are incautious enough to depict Prime Minister Erdogan as an animal (picturing him as a cat in Cumhuriyet resulted in a US$3,500 fine for cartoonist Musa Kart) and journalists who have questioned the problematical human rights record of the army, courts and police. Some of the wilder specimens of antisemitism such as the Anadoluda Vakit newspaper have, however, not faced prosecution although the Constitution formally prohibits racial vilification and Holocaust denial.

Famous novelist Orhan Pamuk was charged in 2005 under Article 301 of the penal code over the criminal offence of "denigrating Turkey's national identity" and insulting long-dead dictator Kemal Ataturk by commenting that "thirty thousand Kurds and one million Armenians were killed in these lands" over the past 120 years. He subsequently lamented

What am I to make of a country that insists that the Turks, unlike their Western neighbors, are a compassionate people, incapable of genocide, while nationalist political groups are pelting me with death threats? What is the logic behind a state that complains that its enemies spread false reports about the Ottoman legacy all over the globe while it prosecutes and imprisons one writer after another, thus propagating the image of the Terrible Turk worldwide? When I think of the professor whom the state asked to give his ideas on Turkey's minorities, and who, having produced a report that failed to please, was prosecuted, or the news that between the time I began this essay and embarked on the sentence you are now reading five more writers and journalists were charged under Article 301, I imagine that Flaubert and Nerval, the two godfathers of Orientalism, would call these incidents bizarreries, and rightly so.

The prosecution was dropped in early 2006, amid international criticism. Pamuk's lawyer Haluk Inanici chided the court for evasion, noting that did not repudiate the law, instead framing its decision in bureaucratic terms.

The court dropped the charges not because the trial violated the freedom of speech, but because there was a missing approval by the Justice Ministry to proceed with the trial.

Just as importantly, numerous other writers still have cases pending under similar charges. Two weeks after the Pamuk case was dropped, for example, Erol Katircioglu and four other journalists were charged with insult after criticising a court's decision to ban a 2005 conference about the mass killings of Armenians during the Ottoman Empire - claimed as the first time the issue was publicly discussed in Turkey. As of December 2007 reporter Rojda K�zg�n was being tried under Article 301 (2) of the Turkish penal code for "degrading the state's military and security forces", having reported in 2005 that soldiers were using grenades for fishing and damaging the environment.

Egyptian blogger Abdel-Karim Nabil Suleiman was sentenced to four years in prison in 2007 for insulting Islam and President Hosni Mubarak. He had been expelled from law school at Cairo's Al-Azhar University for criticising religious extremism and at the university's urging was then charged with insulting the president, spreading information disruptive of public order and incitement to hate Muslims. Al Jazeera journalist Howaida Taha was given six months' imprisonment with hard labour after an Egyptian court found her guilty of "undermining the image of the country" by making a documentary about government torture.

In Zimbabwe government prosecutions of journalists for criminal defamation are a matter of course. Thai activist Sulak Sivaraksa was arrested in 1984 and 1991 for lese majeste, albeit with speculation that king Bhumibol Adulyadej interceded on his behalf. In 2007 Swiss citizen Oliver Jufer was sentenced to 10 years in a Thai prison for the crime of insulting Thailand's King Bhumibol Adulyadej by vandalising portraits of the monarch with black spraypaint during a drunken spree.

Dishonour provisions in Belarus threaten dissidents and journalists with heavy prison sentences for "discrediting" Belarus, "urging a state or organisation to act to the detriment of the authorities" or merely providing international organisations with "false information on the country's political, economic, social or military situation" - an echo of the Soviet criminal code's catch-all prohibition on "defaming the Soviet system" through "Anti-Soviet campaigns and propaganda". One writer in Kazakhstan was jailed for calling the president a goat.

French president Nicolas Sarkozy was awarded a symbolic single euro in 2008 in litigation that featured his assertion that he had "exclusive and absolute rights over his own image", rights breached by producers of a Sarkozy voodoo doll. The court disagreed with the claim that the doll posed a threat because it might "provoke violence" against the head of state, holding that an outright ban on the doll would be "disproportionate" and "compromise freedom of expression". However, future packaging of the doll must carry a bright-red notice, with a warning that the book and doll constitute an attack on Sarkozy's dignity. 

That notice reads

It was ruled that the encouragement of the reader to poke the doll that comes with the needles in the kit, an activity whose subtext is physical harm, even if it is symbolic, constitutes an attack on the dignity of the person of Mr Sarkozy.

In Cuba reporters have recurrently been imprisoned for "insulting and contemptuous behavior" such as reporting clashes between police and workers. Politician Hector Palacio Ruiz was sentenced to 18 months in prison in 1997 for telling a German television station that Fidel Castro was crazy.

In Syria dissidents have been imprisoned for "defaming the name of Syria" or "defaming the constitution". Blogger Tarek Bayassi for example was sentenced in 2008 to three years in prison on charges of undermining the prestige of the state and weakening national morale after calling for a parliamentary committee for human rights and restrictions on arbitrary action by security agencies. Iran had earlier promoted anti-semitic cartoons denying the Holocaust and imprisoned a cartonist for depicting the nation's president as a donkey.

A Polish court in 2008 more sensibly ruled that it was not slanderous to refer to President Lech Kaczynski as a duck (in a pun on the word "kaczka," which means "duck" and Kaczynski's use of a duck as the symbol for his Law and Justice Party). Judge Alina Rychlinska found that comparing humans to animals is not necessarily an insult.

Some states have allowed the heads of state of other nations to use their insult law.

In Spain lawyers for the Moroccan royal family have for example sought damages from newspaper editor Jose Luis Gutierrez for an article noting seizure of a mere five tons of hashish from a truck owned by a company controlled by the late Hassan II. The article was confirmed as truthful but the monarch took offence at the headline "Hassan II Family Enterprise Linked to Drug Trafficking". Two lower courts found the defendants guilty of having "illegally disturbed His Majesty Hassan II's right to keep his honor". Critics note that the law is not concerned with truth: it is a measure of a nation or ruler's sensitivity. In principle one of the nastier African dictators, Saddam Hussein or the Ceaucescus could have sued over accurate reporting that they had disposed of their citizens.

The Thai government announced in 2006 that it had blocked access to the Yale University Press web site over plans to publish Paul Handley's The King Never Smiles: A Biography of Thailand's Bhumibol Adulyadej.

Yale commented

Yale University Press understands the forthcoming publication of Paul Handley's book has given cause for concern. The book is dispassionate in tone and temperament, and has been thoroughly vetted both by leading scholars in the field and by the Yale University Press Faculty Committee. 

In 2009 Melbourne academic Harry Nicolaides, who lived and taught in Thailand, was sentenced to three years in a Thai prisonover his 2006 novel Verisimilitude that featured a disrespectful brief reference to an unnamed crown prince.

     speaking truth to power

US scholar Ruth Walden, author of the detailed 2000 study Insult Laws: An Insult to Press Freedom, noted that "You can offend someone's dignity with truth". Some dignitaries have deployed defamation rather than insult law to inhibit their opponents.

As noted earlier in this profile disagreement about responsible journalism, ethics and the significance of the media in 'talking truth to power' as a foundation for a strong civil society is apparent in controversy over defamation cases involving some heads of state.

Works such as Chris Lydgate's Lee's Law: How Singapore Crushes Dissent (Melbourne: Scribe 2003), for example, suggest that former Singapore Prime Minister Lee Kuan Yew and the ruling People's Action Party have successfully used defamation action against political opponents and to stifle critical reporting by foreign media organisations such as the Far Eastern Economic Review, Asian Wall Street Journal, Time, Asiaweek and International Herald Tribune. Concerns are highlighted in 'Singapore's jurisprudence of political defamation and its triple-whammy impact on political speech' by Tsun Hang Tey in Public Law (2008) 452-462.







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