Court of Appeal’s verdict on Apichat’s case: How the Thai Court recognized Junta and its self proclaim laws

Verdict of the Court of Appeal in a case against Apichat, a man who was accused to defy junta’s announcement ban on political gathering of 5 people and above marked another historic pinpoint in The Thai Legal system as well as Thai politics as a whole. It was the first time where a word “Sovereign Entity” (Ratthathipat - รัฏฐาธิปัตย์) was replaced by the term “coup d'etat regime” (rabob hang kan ratthapahan - ระบอบแห่งการรัฐประหาร). Yet, essence of the verdict makes no change, any military junta who successfully overthrown elected government were and will be recognized by the Thai court as legitimate entity that able to issue any decrees to maintain peace and order of the nation.

 

The Background

 
Back in May 23 2014, a day after Gen. Prayuth Chan-ocha an Army Chief successfully seized administrative power from Yingluck Shinawatra government. A group of 500 people including Apichat gathered in front of Bangkok Art & Culture Center (BACC) to protest against the coup. Apichat, who later became defendant of this case raised A4 paper written “No to illegitimate authority” as a symbolic action to oppose the Coup d’etat staged by National Council of Peace and Order (NCPO).
 
Apichat was arrested at the scene by the military around 7.30 pm. While he was escorted to military’s vehicle he shouted “They arrested me just because a piece of paper”. He was detained in a military camp for a night, the military then transferred him to detain at the Crime Suppression Division under Martial Law for another 6 days since the military has power to detain the suspect for seven days according to the provisions of the Martial Law. After 7 days detention period under martial was due, Apichat was remanded in custody for another 24 days as the police filed accusation under Lese Majeste law against him. Apichat was released on June 24 as the court refused to extend his pre-trial detention under Lese Majeste accusation for the 3rd cycle (Note: pre-trial detention for criminal offense with 10 imprisonment and above including Lese Majeste last for 12 days per cycle and can be extended by permission of the court, up to 7 cycles or maximum of 84 days).
 
Until now Apichat’s Lese Majeste case was hung somewhere in Thai judicial system. Nevertheless, for the past 3 years since 2015, Apichat was occupied by another Criminal Case because he had taking part in a protest on 23 May 2014, the military had reported to the police that Apichat defied NCPO announcement no. 7/2014 which prohibited a political gathering of 5 people and above, offender of this decree is subjected to up to a year of prison sentence or fine in the sum of 20,000 Baht or both. In his defense, Apichat not only tried to prove his innocence, he also aimed to use his case as a tool to have the court precedent with regard to legitimacy of coup d'etat as well as legitimacy of decrees that had been arbitrarily declared and enforced by the junta.
 

The Arguments

 
In his defense, Apichat argued that his action was guaranteed by provision of section 69 of the 2007 Constitution which provided that "A person shall have the right to resist peacefully an act committed for the acquisition of the power to rule the country by a means which is not in accordance with the modes provided in this Constitution." as well as provision of the section 70 of the 2007 Constitution which provided that "Every person shall have a duty to uphold the nation, religions, the King and the democratic regime of government with the King as Head of State under this Constitution."
 
The defendant also argued that at the time of occurrence the NCPO has not yet successfully seized power as there were people who expressed disagreement toward coup. Hence decrees that had been issued at that time including NCPO announcement no. 7/2014 was not considered as a legitimate law at the time.
 
The defendant challenged the legality of the declaration of Martial Law which was the source of power that NCPO claimed to prohibit political gathering under NCPO announcement no. 7/2014 on the ground that it was declared by the army chief without Royal Command, wherein the Martial Law itself provided that the declaration of Martial Law nationwide need to be done thought Royal Command.
 
The defendant also challenged to legality of NCPO announcement no. 7/2014 itself on the ground that at the time of this case, it was not yet published in Royal Gazette, hence it was not effected at the time the defendant committed alleged offense.
 

Ruling by the Court of the First Instance

 
In February 2016, the Court of the First Instance acquitted Apichat due to error in the criminal procedure. It found that inquiry official from the Crime Suppression Division (CSD) who conducted inquiry with Apichat had no authority over the case. However, the Court of Appeal later over ruled this verdict as the prosecution had appeal that inquiry from the CSD did had authority to conduct inquiry on the defendant, the Court of Appeal then ordered the Court of the First Instance to reconsider the case in the matter of fact.
 
On 19 December 2016 The Patumwan Municipal Court found Apichat guilty under NCPO announcement no. 7/2014 and under section 215 of the Criminal Code (Assembled of 10 people upward to create disorder) and was sentenced to 2 months in prison and fine in the sum of 6,000 Baht. Since Apichat had never been sentence to prison before his prison sentence was suspend for one year.
 
In this verdict, ruling of the court with regard to issue surrounding legitimacy of coup d'etat and junta's self proclaim decrees are as follow.
 
With regard legality of the NCPO announcement no. 7/2014, the court see that since Gen. Prayuth successfully seized power from the administration of Yingluck Shinawatra, he then had the power to control the nation and Gen. Prayuth as head of the NCPO himself had became a Sovereign ( รัฏฐาธิปัตย์ ). Furthermore, since 4.30 pm. The NCPO made announcement no. 2/2014 declared Martial Law nationwide Section 8 and 11 of Martial then became source of power that the NCPO used to made announcement no. 7/2014 thus it was considered to be a legitimate law that had been enforced in order to maintain peace and bring the situation back to normal.
 
In this verdict the Court of the First Instance, however, did not mentioned about its opinion with regard to legality of the declaration of Martial Law without Royal Command which would directly effected to legality of NCPO announcement no. 7/2014, it also did not consider about the fact that the announcement no. 7/2014 was publicized in Royal Gazette after the incident in this case took place as well as did not consider about argument from the defendant that his action in this case was the exercise of rights provided by Section 69 of the 2007 Constitution.

 

The Appeal

 
Apichat appealed the case to the Court of Appeal by made 6 arguments in which 2 arguments were made to challenge legitimacy of the NCPO as well as legality of the declaration of Martial Law and NCPO announcement no. 7/2014
 
With regard to legitimacy of the NCPO, the defendant challenged that Gen.Prayuth was not a soverign entity because he seized administrative in an undemocratic manner. Furthermore, there was no law that gave legitimacy to Gen.Prayuth apart from NCPO announcement which Gen.Prayuth arbitrarily made without consent of the people, NCPO announcement no. 7/2014 hence not could not be considered as law that can be enforced over the defendant.
 
With regard to legality of the declaration of Martial Law and NCPO announcement no.7/2014, the defendant challenged that the declaration of Martial Law nationwide by the NCPO on 22 May 2014 was unlawful because it had not been done through Royal Command in accordance with Section 2 of Martial Law, NCPO announcement no. 7/2014 that had provision under Section 8 and 11 of Martial Law as source of power therefore unlawful and cannot be enforced on the defendant.
 
Furthermore, NCPO announcement no. 7/2014 was published in Royal Gazette on 26 May 2014 which was the date after alleged offense of the defendant had been committed, it was then cannot be enforced against the defendant.
 
The defendant also challenge that his action had been done in a peaceful manner to oppose coup d'etat it thus a legitimate action in accordance with provision under Section 69 of the 2007 constitution which provided that a person had the right to peacefully oppose the seize of administrative power that has been done outside of the spirit of the 2007 Constitution. It is also a duty of the defendant under Section 70 of the 2007 Constitution to protect the democratic system under the 2007 Constitution.
 
 
 

 

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Apichat, his lawyers and his friend at the Pathumwan Municipal Court 31 May 2018

 
On 31 May 2018, the Court of Appeal made some change in a verdict of the Court of the First Instance in a positive manner. First, it clear the charge under Section 215 of the Criminal Code on the ground that the defendant acted in a peaceful manner and when the military arrested him, he showed no sign of obstruction. It also made the change with regard Apichat's sentence by quashed his 2 months prison and remain only 6,000 Baht fine. The essence of the verdict is however remain the same, the Court of Appeal still recognized legitimacy of the junta as well as its self proclaim laws. The ruling of the court with regard to the recognition of coup d'etat and legality of NCPO announcement are as follow.
 
With regard to legitimacy of the NCPO, the court see that before the NCPO seized the power, situation of the country was in a crisis. Political division had all over the nation and violence also took place from time to time. Many lawful methods had been used to restrain the crisis, yet it were all fail. The NCPO then had to seize the power and take control of the situation. Even thought the NCPO had seized the power in an unconstitutional manners yet after it had seized the power the situation was unfold in a positive manner without resistant from neither interim government nor majority of the population. The NCPO then successfully seized the power and had legitimacy to issued announcements and orders as laws to govern and maintain the situation under its coup d'etat regime.
 
With regard to legality of Martial Law and NCPO announcement no. 7/2014, the Court of Appeal sees that since the NCPO had successfully seized the power it then had righteous to make announcements and orders which consider as law under coup d'etat regime. The court also sees that NCPO had power to made announcements and order s by itself without the need to derive power from Martial Law. NCPO announcement no.7/2014 is hence considered as legitimate law. With regard to the date that NCPO announcement no. 7/2014 became effective, the court sees that since there is no effective date mentioned in the announcement, the date that it was made to the public which was 22 May 2014 then is considered as the date that this announcement was entered in to force regardless the date that it was publicized in Royal Gazette.
 
With regard to the claim of provision under Section 69 and 70 of the 2007 Constitution by the defendant, the court sees that on 22 May 2014 the NCPO had announcement no. 5/2014 and 11/2014 declared the cancellation of the 2007 Constitution, the defendant therefore cannot claim those provisions for his defense.
 
Note one of the interesting issues regarding this verdict is the wording that the court called status of the military junta who successfully seized the administrative power by coup d'etat. Instead of calling it "Sovereign Entity" as called in verdict of the Court of the First Instance as well as in verdict of other previous cases where legitimacy of military junta was challenged, this verdict called it with the word "coup d'etat regime".
 
Furthermore, the way this verdict interpreted status of military junta who successfully seized the power is also worrisome. In the verdict of the Court of the First Instance, the court interpreted that the junta made announcements and orders with power derived from the declaration of Martial Law. However, in the verdict of the Court of Appeal, the court interpreted that the junta had righteous to make announcements and orders with legally binding by itself without derived power from other existing laws like Martial Law. The interpretation of status of military junta in such manner seem to be an invitation card for yet another coup d'etat in the future.
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