Following the announcement of the NCPO that the Constitutional Referendum is to be held on August 7, various groups have expressed their views on Thailand’s draft constitution. Both pro- and anti-draft groups have been running campaigns and expressing their views in public. Unfortunately, however, the NCPO has not been welcoming of the views of both groups.
During the past two months, the NCPO has resorted to various means to suppress those from voicing their opposition to the contentious draft constitution. Such acts of suppression are not unfamiliar to Thai people as they closely resemble the NCPO’s response to those who took an anti-coup stance during the years that followed the coup in 2014.
The NCPO has been using the Order of the Head of the NCPO no.3/2015 to restrict anti-draft groups from expressing their views. This order, which was implemented to deal with actions intended to undermine or destroy peace and national security, has been used to stop the New Democracy Movement (NDM) from running campaigns and the United Front for Democracy Against Dictatorship (UDD) from launching Anti-Electoral Fraud in the Referendum Centre.
Moreover, the NCPO has been using the Order of the Head of the NCPO and Section 61 of the Constitutional Referendum Act B.E. 2559 (2016) to prosecute activists who voiced criticism of the draft constitution.
Currently, Thailand’s right to freedom of expression is clearly subjected to numerous regulations. Until today, 113 individuals have been prosecuted for voicing opposing views on the draft constitution. Of the 113 individuals, 94 were charged for violating the Order of the Head of the NCPO no. 3/2015, five were charged for violating Section 61 of the Constitutional Referendum Act, 13 were charged for violating both the Order of the Head of the NCPO no. 3/2015 and Section 61, and one was charged, initially for violating the Order of the Head of the NCPO no. 3/2015 first, and later, on 12 July 2016, for violating Section 61 of the Constitutional Referendum Act.
The Omnipresent Powers of the Order of the NCPO Head
As Referendum Day gets closer and campaigns led by various groups become more intense, the suppressive acts from the NCPO have also intensified. On June 8, Mr. Somchai Srisutthiyakorn, an Election Commissioner, told the press that a music video, called “It deserves a knee strike (Vote No)”, which was shared on Facebook on Citizen Resistant’s fan page is being reviewed by the Election Commission of Thailand (ECT) as it might have violated Section 61 of the Constitutional Referendum Act1. Following the comments of Mr. Somchai Srisutthiyakorn, the Citizen Resistant group went to the headquarters of the ECT at the Government Complex to perform the song from the music video. Before Mr. Pansak Srithep, a member of the group, started his performance, he was stopped by the police and was taken to the Thung Song Hong Police Station. He was released without charges.
Student groups and activists who have been campaigning against the referendum, were also arrested and prosecuted. On June 22, the members of the NDM gathered in a public venue in Samut Prakan province to distribute leaflets that contained opposing views against the referendum. Although the police initially intervened, after the group members explained the objective of their campaign and related legal issues, they were allowed to continue their activity. However, on June 23, the NDM continued to distribute leaflets and 13 individuals, including activists, students and unionists, were arrested by the police and military officials. They were not informed of the reason for their arrest and were taken into police custody at Bang Sao Thaong Police Station. There, they were charged with violating the Order of the Head of the NCPO no.3/2015
On June 24, a group of students from Kasetsart University, called the “Kasetsart Liberals”, organized a gathering to commemorate the year Thailand became a democracy at an event, called “Padfoon Prachatipatai” (“Dusting off Democracy”), at the Lak Si Monument. Police seized all “vote no” documents and took seven of the students under police custody. They were charged with violating the Article 12 of the Order of the Head of the NCPO no. 3/2015 that bans political gatherings of more than five people. The officials informed them that they might also be found in violation of Section 61 of the Constitutional Referendum Act after the documents that they distributed were reviewed by the ECT.
On June 5, the United Front for Democracy Against Dictatorship (UDD) opened referendum monitoring centers, called Center to Combat Referendum Fraud, across Thailand. However, the press conference launching the centers was abruptly called off after police interruption. The UDD said it will open the Centers to Combat Referendum Fraud on June 19 regardless of the police interruptions. In response to UDD, the NCPO expressed that monitoring centers constitute a violation of the law. This was the first time NCPO stated an existence of such a prohibition2.
As the launch day of the Centers to Combat Referendum Fraud got closer, the suppression of UDD supporters got more intense. In at least 43 provinces individuals were prevented from exercising their right to express their opinions (see the list at the end of this report). They were summoned by the authorities, their houses were raided by the police, their public activities were disrupted, and their signs and t-shirts which had messages related to the Center to Combat Referendum Fraud were seized. Only traditional ceremonies were allowed while banners or symbols were banned.
On June 19, many activities were disrupted by the police and many individuals were taken under police custody but there were no charges against these individuals. On the following day, it was reported that police in Ratchaburi have summoned at least ten members of the UDD who posted in the photos in front of the Center to Combat Referendum Fraud in Ratchaburi. They were charged for violating the Order of the Head of the NCPO no. 3/2015 that banned political gathering of five or more persons. Fifteen more individuals were charged with the same offence3. In addition, many people in different provinces have been called to the police station to be informed of their charges in six provinces: Nong Bua Lamphu (15), Surin (17), Udomthani (four), Sakon Nakhon (two), Nakhon Panom (one), and Phrae (five)4. On June 22, police summoned 19 members of the UDD to inform them of their charges against violating of the Order of the Head of the NCPO for organizing a press conference to launch the Center to Combat Referendum Fraud5. Across Thailand, at least 80 individuals have been prosecuted for their involvement in activities relating to Center to Combat Referendum Fraud.
In the North of Thailand, authorities used the Order of the Head of the NCPO no.13/2016 to conduct search and seizure of materials related to the Center of Combat Referendum Fraus. For example, on June 27, forces in the “Operation Dawn on the Bank of Nan River” conducted searches in various places in Pitsanuloke. However, the objective of the Order is to suppress activities of groups that pose a significant threat to society and the economic system, such as the mafia. From two of those subject to the search, the officials have only found banners that read “the Center to Combat Referendum Fraud.” These banners were seized by the police. Officials were not able to base the seizures on any order of the Order of the Head of the NCPO6.
“This is not a discrimination against any particular persons. Some groups are suspected to have organized illegal activities and caused social disruption. The reason the signs have been seized is to preempt such disruption. I plead you to stop causing such turbulence. We should allow people to cast their votes peacefully. It does not matter if people will accept or reject it on 7 August” – Maj Gen Nooporn Ruenchan, Commander of the 4th Infantry Division7
Suppression of the campaigns on the Constitutional Referendum Act’s Section 61
“Any persons who have transmitted a text, or an image, or sound through the print media, or radio, or television, or electronic media, or other channels, which are inconsistent with the truth or are violent, aggressive, rude, inciting or threatening and aimed at preventing a voter from casting a ballot or vote in any direction shall be considered as disrupting the referendum”
This is what is prescribed by Section 61 of the Constitutional Referendum Act and has been used to limit expression in various instances as stated earlier. The text is vague and overboard. It is likely to be void for vagueness as it fails to specify prohibited acts with the necessary level of clarity. This is contrary to the principle of criminal law.
The first concrete application of the Constitutional Referendum Act B.E. 2559 (2016) took place on 22 April 2016, one week after its came into force. There was an arrest warrant against Mrs. Chiraphan Tanmanee, the Chairperson of the Ratthawat Tanmanee for People with Autism from Khon Kaen, for “having transmitted a text, or an image, or sound through the print media, or radio, or television, or electronic media, or other channels, which are inconsistent with the truth or are violent, aggressive, rude, inciting or threatening and aimed at preventing a voter from casting a ballot or vote in any direction shall be considered as disrupting the referendum”.8
Lately, the NCPO has also been using Section 61 against NDM members who possess any document on opposing views on the draft. The authorities alleged that the documents were in fact “a fake Constitution”.9 On July 10, police officials of the Ban Pong Police Station, Ratchaburi, have searched the vehicle of Mr. Pakorn Areekul, also known as the “Man”, a member and activist of the NDM, when he was at a meeting with local people in the district who had been summoned by the police to be informed of their charges for opening the Center to Combat Referendum Fraud. The officials took him in custody along with Mr. Anan Loket and Mr. Anucha Rungmorakot, the other two NDM activists. On the same evening, police went to the house of Mr. Panuwat Songsawatchai, a student of the Faculty of Political Science, Mae Jo-Phrae University. He was among the suspects who turned themselves in to the police at the Ban Pong Police Station for opening the Center to Combat Referendum Fraud.10
On the same day that the vehicle of Mr. Pakorn Areekuls was searched, a reporter, Mr. Thaweesak Kerdpokha, from Prachatai was also taken into police custody where he was informed of the charges against him. Even though Mr. Thaweesak Kerdpokha was not present at the event where 18 activists from Ratchaburi were involved in a political gathering, he was arrested for being a participant of the political assembly. On July 12, five plainclothes police officials and seven uniform military officials searched Prachathai office and looked for documents related to the referendum campaign. They did not find any documents. Prior to the search, there were plainclothes officials who had been monitoring the office.11
The campaign materials seized by the officials were not distributed but were simply inside the vehicle. Before pressing charges, inquiry official called Mr. Somchai Srisutthiyakorn, an Election Commissioner on Electoral Affairs who explained to the police that if the documents were simply in the possession and not yet distributed the activists could not be charged with violating the law. But if they had distributed them, whether it would violate the Order of the Head of the NCPO no. 3/201512
On July 5, while all attention was focused on the remand hearing of the seven suspects in the referendum campaign at the Military Court, two students from Ramkhamhaeng University were stopped by police officials from the Udomsuk Police Station simply because they were wearing ‘Vote No’ t-shirts. Even though the students were not involved in an activity related to the referendum, they were asked to remove their t-shirts,. The two students were taken to the Udomsuk Police Station and were questioned about how they obtained the t-shirts. They were released without charges.13
Even the ECT, an authority responsible for enforcing the law, failed to provide guidance in enforcing the Constitution Referendum Act.. In a Facebook post by Mr. Somchai Srisutthiyakorn, as an Election Commissioner toward the case that Mr. Suranand Vejjajiva, former Cabinet Secretary and Mr. Pitch Pongsawat, a faculty member of Faculty of Political Science, Chulalongkorn University, wore t-shirts bearing a statement saying “Yes or No is a right and it is not illegal”. According to the Election Commissioner, it is not considered a violation to wear such t-shirts but it is a violation against the law to wear such t-shirts every day on TV.14 Also, two students from Ramkhamhaeng University who were held at the police station for questioning simply for wearing a “Vote No” t-shirts during their campaign to invite fellow students to participate in their rural camping activity, even though no charges were pressed against them, it reflected how there are simply no clear guidelines as to how to apply the law correctly.
Fear of being harassed and intimidated by the police restricts Thai people from freely expressing their views and opinions opposing the draft constitution. NCPO has been using the Order of the Head of the NCPO and the Constitutional Referendum Act to discourage people from expressing views against the draft . Regardless of the size of the campaign or the significance of the act, every act that can be interpreted as a criticism of the draft have been stopped by the NCPO. Suppressing acts of the NCPO shows the limitations Thai people face in exercising their right to free expression. It shows the efforts of the NCPO to control the results of the referendum. It is clear that the NCPO wants the Draft Constitution endorsed at the referendum.15
Regardless of the voters’ answer of a “yes” or a “no” to the referendum, the result will not be the product of a democratic society who was able to exercise its right to free speech and expression..
The harassments as a result of the launch of the Centers to Combat Referendum Fraud by province
The provinces in which the state authorities have been found to crackdown on the launch of the Centers to Combat Referendum Fraud by the UDD. According to news reports and the Facebook fan page of the “Center to Combat Referendum Fraud”, at least 43 provinces saw such harassments carried out by the officials including the summoning for questions, holding in custody, seizing the signs, surveillance, and in some cases, the prosecutions invoking the Order of the Head of the NCPO no. 3/2015.
14 June – sign removed and seized
Prachuab Khiri Khan
19 June – Ordered to call off activity, core members held in custody and summoned to meet the authorities, though some other groups managed to carry out the monitoring activity after 19 June. 25 individuals prosecuted, see 1 and 2
16 June – house raided and warned not to organize the activity, and after 19 June, two persons prosecuted (the second person was charged only after 11 July)
Nong Bua Lamphu
Mae Hong Son