Repressive Constitution under the Referendum Act 2016


In April 2016, the junta-appointed parliament passed the Referendum Act 2016 for the Constitutional Referendum on 7 August 2016. The draft constitution was written by a committee appointed by the NCPO without any public participation in the drafting process. The draft also installed many new mechanisms to ensure the military roles in politics, for example, it appointed 250 senators, set up the ethical standards for politicians and the National Strategy that will be drafted by the junta. The NCPO therefore needed this draft to pass the referendum with as less resistance as possible. The Referendum Act of 2016 was enacted for a constitutional referendum and to control the political atmosphere before the referendum date. Section 61 was the main problem of this law, which limited freedom of expression on criticism of the draft constitution. Section 61 of the Referendum Act states that:
             “Any person who commits following acts; (1) to cause confusion to affect orderliness of voting,
             Anyone who publicizes text, images or sound, through either newspaper, radio, television, electronic media or other channels, that is either untruthful, harsh, offensive, rude, inciting or threatening, with the intention that voters will either not exercise their right to vote, or vote in a certain way, or not vote, shall be considered as a person causing confusion to affect orderliness of voting.
             Any person commits the act to cause confusion to affect orderliness of voting shall be punished with imprisonment of not exceeding 10 years and a fine of up to 200,000 Baht. The Court may order to revoke his/her right to vote of not exceeding five years.
             If the offences are committed by a group of five persons or more, each person shall be punished with imprisonment of one to ten years, a fine from 20,000 to 200,000 Baht and a 10-year revocation of voting right by court.”
The Referendum Act of 2016 caused a lot of problems in the society because the legislators did not limit the official’s authority and did not try to protect people’s freedom of expression. Therefore, there were a lot of innocent people who were affected by this act.
Under the military rule, from 25 April 2017 to 7 August 2017, at least 64 individuals have been arrested or charged under Section 61 of the Referendum Act and from 19 June 2017 to 30 July 2017, at least 131 individuals have been charged under the Head of the NCPO’s Order No. 3/2015 and others laws for participating in activities related to the referendum. 
The problems from the legal provision itself 
1. Ambiguity of law 
There are several ambiguities in the legal provision for example “harsh”, “offensive” or “inciting”. It is difficult to know which expression constitutes an offence against this section. Moreover, there are no definitions for these words in the Penal Code. This is against the principle of the Criminal Code that there should be clear definitions, so people can know their rights and freedoms.
2. Criminalising rude words
Expressing with “Rude” words may not be proper, but under normal circumstances not illegal. Moreover, there are no clear definitions explaining which words constitute rudeness. The interpretation of which words are rude is subjective and depends on the situation.
3. Limiting point of view
Prescribing “untruthful” in this act causes problems because when people read the draft constitution, they use their own experiences, ideas and beliefs to interpret the draft constitution. This means that people would have different opinions on the draft constitution that might be different from those of the one who wrote it.
The problems from its enforcement
1. The Referendum Act had been used to threaten dissent.
The military government kept advertising the good aspects of the draft constitution through millions of leaflets, all television channels and all kinds of media. Even Gen. Prayuth, the head of NCPO gave an interview that he will go to vote in favor of the draft. The drafting committee refused to join any debate given that it was not its duty as a neutral body. But campaigns against the draft were strictly repressed. All of the people who were arrested and charged are ‘Vote No’ supporters. The Election Commission also played an active role to threaten and prohibit people from campaigning.
For example, when Somchai Srisutthiyakorn, an Election Commissioner said that he was told that there was a Facebook’s page of one political movement, which sold t-shirts. Those t-shirts had messages that might affect the voters, so this might qualify as an offence under section 61 of the Referendum Act. The political movement that Somchai mentioned was New Democracy movement and the message on the t-shirts was: “Vote No for the future we didn’t choose".
2. The Referendum Act had been used to charge extensively against an unclear offence. 
The example for this was ‘Vote No’ Sticker at Banpong District case, which the 5 defendants were allegedly carrying anti-constitution materials. However, they were charged with only the ‘Vote No’ stickers with a message ‘Do not accept an unchosen future’. Even in the complaint that filed with the court, there is no clear explanation of how such messages violates the law.
Case studies under Section 61 of the Referendum Act
Chuwong, lawyer and leader of the Krabi Landless Peasantries Group posted message on Facebook, stated that he will vote no to the draft constitution on 7 July 2016, someone saw his message on Facebook and went on to report the case to the police. On 15 July 2016, the police requested the Court to issue arrest warrant against Chuwong under the Referendum Act. Chuwong went to report to the police on 16 July and denied the charge. The police released him on bail on the same date with 150,000 Baht cash deposit.
Pakorn, Anan, Anucha, three New Democracy Movement (NDM) activists, and a Prachatai journalist Taweesak, on 10 July 2016, were taken to Ban Pong police station for allegedly carrying anti-constitution material in their car. Later on, Phanuwat, a student from Maejo University, was taken from his residence in Ratchaburi to the police station. They were charged with violating Section 61, paragraph 2 of the Referendum Act for distributing the stickers, and were detained at the Ban Pong police station. On 11 July 2016, Ratchaburi Provincial Court granted bail to the five for 140,000 baht each. The trial of this case has finished. The court will render a verdict on 29 January 2018. 
Piyarat, a 25 years old activist, went to cast his vote at poling station in Bangna District Office on 7 August 2016 which was the referendum date,. After receiving a ballot, Piyarat tore it in to pieces and shouted "Down with Dictatorship Long Live Democracy". Authority immediately arrested Piyarat along with Thongtham and Jirawat who filmed and uploaded the incident on social media under the Referendum Act for disrupting peace in polling station.
On 26 September 2017, the Phra Khanong Provincial Court acquitted the 3 defendants from the charge of conspiring to create disorder in a polling station under the Referendum Act. As for Piyarat who tore his ballot, the court sentenced him to 2 months in prison and fined him in the sum of 2,000 Baht for destroying other’s property. Piyarat's prison sentence was however suspended for a year. 
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