By Phattranit Yaodam and Samira Saran
August 7, 2016 is scheduled for the constitutional referendum by the Thai Military government and the National Council for Peace and Order (NCPO), the junta-ruling body. It is during times of political change that the right to freedom of expression is most essential, ensuring that a well-informed and empowered public is free to exercise its civil and political rights. Providing the conditions for free and open political communication is the basic element of ensuring fair and democratic referendum processes.
This concept is mentioned in international standards. It is the right to freedom of opinion and expression, as articulated in articles 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). It is fundamentally interrelated with article 25 of the Covenant, on the right to participation in government through free and fair voting.
Under Thai law, the Constitutional Referendum Act B.E. 2559’s Section 61 paragraph two and its implementation along with The Head of NCPO Order No.3/2015 have shown contradictory results. It intends to restrict the people’s rights who need to discuss and to critically evaluate decisions about their country.
The NCPO Order No.3/2015, which the government claims is needed, to maintain a “certain degree of restriction, to protect the rights or reputations of others and to uphold national security and public order,” is not an applicable law. Its Article 12 (ban on any political gathering of five persons or more) is a restriction on the rights of freedom of expression and peaceful assembly which are recognized in ICCPR to which Thailand is a state party.
Moreover, Section 61, paragraph two of the Constitutional Referendum Act B.E. 2559 (2016), states that “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”. It has not been crafted with care to ensure that it complies with paragraph 3 of Article 19 of ICCPR. They do not serve, in practice, to stifle freedom of expression (as provided by the Human Rights Committee’s General Comment No. 34, CCPR/C/GC/34).
Therefore, both the Head of NCPO Order No.3/2015 and Section 61 paragraph two of the Constitutional Referendum Act B.E. 2559 threatens society’s enjoyment of the right to freedom of opinion and expression.
As of July 2015, according to a Thai lawyer for Human Rights (TLHR), 113 people have been prosecuted for publicly opposing the draft constitution— many of them from the capital, Bangkok. As the opening day of the Centers to Combat Referendum Fraud neared, the NCPO suppression escalated.
On 23-24 June 2016, student groups and activists, who demonstrated in public opposition to the referendum, were arrested. An example is the following incident. After distributing leaflets to the general public, 13 individuals, were bought to the Bang Sao Thaong Police Station. They were taken into custody and charged with violating The Head of NCPO Order No.3/2015 and the Constitutional Referendum Act B.E. 2559’s Section 61.
On 10 July 2016, the Ban Pong police searched the vehicle of 4 activists, and found campaign material about the Constitutional Referendum and “Vote No” fliers. They were then held in custody for questioning, together with a reporter from Prachatai. No charges were initially pressed against them. But afterwards, the Commander of the Provincial Police Region 7 instructed the officer to charge them with violating the Constitutional Referendum Act B.E. 2559’s Section 61 for preparing to distribute fliers.
Moving on to Northern Thailand, authorities cited The Head of NCPO Order No.13/2015 as a premise to conduct search and seizure of all materials remotely related to the Center of Combat Referendum Fraud. As a result, in over 43 provinces, residents were prevented from exercising their right to freedom of expression. Civilians’ homes were raided by police, individuals were summoned by authorities without explanation, and banners and symbols were banned. On June 27, 2016, forces that were originally intended to suppress dangerous societal organizations, like the mafia, burst into homes searching for opposition supplies. Individuals have been arrested for wearing apparel that reads “vote no” or gathering in groups greater than 5.
By arbitrarily pressing charges, the police impair the people from freely expressing their views on the Draft Constitution. Through misconstruing The Head of NCPO Order No.13/2015 and the Constitutional Referendum Act B.E. 2559’s Section 61, the government and its organizations intend that individuals be discouraged from opposing the draft. Regardless of the voters’ opinion on the referendum, the results will not be the product of a democratic society that is able to exercise its right to free speech and expression.
