‘A political campaign is not a crime’: Stories of Three Victims of the Referendum Act

On the morning of 10 July 2016, activists Pakorn ‘Man’ Areekul, Anucha ‘Champ’ Rungmorakot, and Anan ‘Boy’ Loked, travelled to the Ban Pong police station in Ratchaburi province to support 18 Red Shirts who had been summoned by the police for opening a referendum fraud monitoring centre. Like many others before them and many after, the red shirts were accused of violating Order of the Head of NCPO No.3/2015, an order of the head of the junta which outlaw political gathering. 

Accompanying these activists was Taweesak ‘Otto’ Kerdpoka, a Prachatai journalist who was reporting the event. When they intended on leaving the station, their pick-up truck was searched by the local police, and upon inspection, campaign materials for the August 2016 constitutional referendum were found. Among the items confiscated included a vinyl banner with an emblazoned message ‘Any Thai Prime Minister is subject to mocking’ and stickers bearing the message ‘"7 August - Join together to Vote No to deny the future that we cannot choose"’ (see the list of confiscated items). To the rude shock of these individuals, the police proceeded to arrest and charge them (and later that night, a fourth activist) for possessing (and prospectively distributing) these ‘offensive’ material.

For over a year, Man, Champ, Boy, Otto and Phanuwat (the fourth activist) have been embroiled in lengthy legal proceedings over their alleged violation of the Referendum Act. Their charge: violating Section 61 of the Act, for ‘disseminating false information in a rude, offensive, and inciting way with an intention to influence voters’, which carries a severe punishment of up to 10 years imprisonment and/or a 200,000 Baht fine. At this juncture, the Ratchaburi provincial court has heard testimonies from the defendants, and both eye and expert witnesses. Having observed the full length of their trial, iLaw conducted an in-depth interview with the activist-defendants Man, Champ and Boy to hear their stories.

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Three out of five defendants in the Vote No sticker case (from left to right) Pakorn 'Man', Anan 'Boy' and Anucha 'Champ'  

Q: Having observed your testimonies, we noticed that the Ratchaburi provincial court allowed the defense (defendants and witnesses) an unusual amount of space to express criticisms of the August 2016 referendum and the latest constitution. Given that the public space to express this type of criticism is very restricted, what did you make of this open space in the court? 

Man: I felt that this is the first time during the legal proceedings that I could express my opinions. Usually, I am unable to fully express myself in this way. Public political gatherings are criminalized at this point in time, while it remains difficult to mobilize activism through social network.

Boy:  If a court was ordered by the military or the government to judge in a certain way, the court is not a tool for activists to use to fight the political system. I am concerned that the judiciary in Thailand might be subjected to political interference. 

Champ: I believe that the court can be a channel to express political dissent and to fight for political reform, but only if the justice process is not interfered by other entities. However, after having observed trials in military courts, it is my opinion that it is impossible to use political arguments in the court as a defence. Typically, judges forbid defendants from criticizing political figures or the political system during the hearings. The court can only be neutral when it allows such political arguments.

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Q: Can you tell us about your legal preparation for this case?

Man: Initially, the case file from the police was quite weak, as it just stated that we possessed the campaign material but it did not state that we distributed it. Thus, we thought that this case was easily winnable. However, the police changed their accusation against us to attempting to distribute the material as, from the police investigation, they uncovered a photograph of us carrying a box from my truck. Even though the court did not admit this photograph as evidence, we had to prepare our case to show that the content of our material does not violate the Referendum Act. Specifically, I worked with my lawyer to prove to the court that the confiscated ‘Vote No’ stickers are not illegal, and thus, its distribution should be allowed.

To this end, we focused on the key terms of Section 61(2) of the Act, which states that individuals who publicize information that is falserude, or an incitement, is subject to charge. Even after the information possesses elements from those three terms, the information must also make the public vote in a certain way. Thus, for the first part of our defence, we needed to prove that the content in our campaign sticker does not qualify as falserude, or an incitement. In the second part, we needed to show the court that campaigning to persuade people to vote in a certain way is not a crime. We needed to expose the hypocrisy that campaigns to persuade people to vote for the draft constitution is not criminalized as members and supporters of the government such as Suthep Thaugsuban, openly declared their support for the draft constitution.

Q: What were you planning to do with the referendum campaign material?

Man: We had never intended to distribute the campaign material in the Ban Pong area. On the day of our arrest, the documents happened to be in the car.

(Man had testified to the court that other activists from the New Democracy Movement were distributing the material at a forum in Thammasat University a few days earlier, and had stored the material in his truck because he is the only one among the group who had a car).

Q: What was NDM’s plans regarding the dissemination of information regarding the referendum?

Man: There were two distinct phases in the New Democracy Movement’s plans. Initially, the strategy of NDM was to run a full-blown political campaign about the referendum with vehicles going around cities and campaigners addressing bystanders through amplifiers. Also, leaflets and pamphlets with commentary about the draft constitution would be freely distributed. However, this strategy was altered after the arrest of organisation leader Rangsiman Rome and other activists at Ban Sao Thong District in Samut Prakan for distributing pamphlets. To avoid further legal action against NDM activists, the new plan was to not actively distribute the campaign material but only through private channels should anyone request it. NDM would also distribute their material in seminars including the one that was hosted by the Election Commission.

Q: These strategies existed within the context of the Referendum Act, which was being used frequently against other ‘Vote No’ campaigners due to its use of vague, undefined terms such as ‘offensive’, ‘rude’, and ‘incitement’. How did the NDM frame their strategy within the context of these laws?

Man: When we first planned to organize a campaign, the Referendum Act was not enacted. Even when the Act was passed, our plans did not change as we believed that our campaign was evidence-based. This is because all our campaign messages were direct citations of the draft constitution. Even if the authorities announced that 'Vote No' campaigns are illegal, we would have still proceeded with our plans. 

Boy: I genuinely believe that referendum campaigns are a normal part of the referendum process itself and are most definitely not a crime. This belief is based on my observations of people were freely conducting referendum campaigns in the UK (about the question of Scottish independence) at the same time, and how people managed to campaign relatively freely in Thailand with the referendum of the 2007 constitution. Thus, imagine our surprise when we were arrested.

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Q: The witness testimonies in this case brings to light a list of police misdemeanors and confusion in the police procedure. Could you explain more about this?

Boy:  Initially, the police asked us about the documents, and we replied that they relate to the referendum. Then, the police asked us if the material is supports or rejects the draft constitution, in which we replied that it’s the latter. Pol. Lt. Col. Sarayuth Bureevajira, who was the leader of the arrest team and the officer that searched our vehicle, then showed a political bias that probably affected his reaction in arresting us. He told us that voting against the draft constitution is illegal and that the constitution must pass so that the country can achieve progress. 

We were dissatisfied with the police procedure that was followed as well during the arrest as the officers did not state if a crime actually happened or even if a possibility of a crime had occurred. In addition, even though the Election Commission in Ratchaburi was the sole body with the authority to verify the legality of our campaign material and to bring any prospective complaint, the police warned them to stay out of their business. Also, the police did not know which charge to place us under. They first wanted to charge us with Order of the Head of NCPO No.3/2015 on unlawful political assembly, but for unstated reasons, decided to change the accusation to violating the Referendum Act.

Man: Yes, I was surprised and panicked when these events unfolded. Usually, police officers in Bangkok would often tell me that we share the same political beliefs and that they do not intend any harm to me. Whether this is a façade to gain more information from us, the police that I typically encounter have never openly identified themselves as my opponent. But this case is the first time that I have ever faced this. 

Q: How has your work as an activist been affected because of your involvement in this case? Have you also faced any harassment by the authorities?

Boy: Perhaps this case does not affect us directly in our activism but it definitely does not help that we are forced to spend a lot of time being involved in lengthy court proceedings.With the current charges hanging over me, it is difficult for me to enter the job market. Even though employers in this country are not that concerned with prior criminal records of job applicants, they are concerned that I would have to take time off work to attend court proceedings.  I’m just a small fish in a big pond, so the effect of state repression on me was greater. This insecurity stems from the fact that I was on a target list of the junta soon after the coup as I was forced to sign a Memorandum of Understanding to abstain from any involvement in future political activities. This particularly affected my university studies. 

Man: This case does not impact my activism in a great way, not compared to the other cases that I am involved in. This is because the proceedings in this case has a clear and known procedure, for example the schedule of the trials. However, in the other case, I was charged with defying the Order No. 3/2015 for participating in an unlawful political assembly, and this case will be judged by the Bangkok military court. The procedures in that case are less clear and are less consistently followed. After I was released from 12 days of pre-trial detention, I did not receive any information regarding the progress of the case nor did I receive any warrant. 

More broadly, I work as teaching assistant at Burapha University every Thursday. My teaching is interrupted when I have to attend trials, which usually last for a few days in each proceeding. Sometimes I am hired to run some events, but I would have to abandon them if I called to attend a trial. This happened during the first round of the proceedings which cost me an income of 20-30,000 Baht from abandoning a project I was tasked with.

Champ: In terms of social activism, there’s not much of an effect. But I do agree with the others that standing trial is a waste of time when I could be engaging in more productive and creative work.  

Boy: A more serious issue for me, is that families of activists are threatened by the authorities to force activists to cease their dissent.

Champ: My family does not understand why I was prosecuted, and they’re worried about the image and reputation of the family name. As for my concern, given that I campaign on many issues such as agriculture, labour, student welfare, I expected that I would be on the government watchlist. I used to rent a house, the address of which remained on my national ID card even after I moved out. As the security officials was unaware that I had moved out, they kept the house under strict surveillance.The situation became so unbearable, which led to the residents moving out as they felt threatened.

Q: Why is it important for you to fight this case?

Man: I aim to set clear and consistently-upheld standards and principles, to show that political campaigns in a referendum is the right of everyone and that any law that suppresses the exercise of this right should never be instituted. This is because this right is part of the wider space to exercise our freedom of expression. Given how important this freedom is to me, I will not plead guilty. I will not give up the struggle.

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Champ: It’s important for me to fight this case through to the end as I do not accept our arrest and the charges against us. Our actions to campaign for a nationwide referendum on the draft constitution is not a crime, and the legal procedure against us is unjustified.

Boy: My reasons are similar to the others, but I also want to point out that after coup, many important cases of a political nature were brought to court, which disputes over the rights and freedoms of the people. I want to ask the civilian judiciary about how they feel in handling these vast amounts of political cases. I want to know if the civilian courts regard these political cases as criminal. The courts should not accept these cases as they involve violating laws written and passed by the junta and its rubber-stamp parliament that was designed to exist in a state of exception or in a state of national crisis. As activists, we have to ask ourselves whether we will surrender to these illegitimate laws that we do not accept. 

See more detail of this case on iLaw database

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