THIALAND: Prosecution of four student activists and journalist under Referendum Act continues

Dear Friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding the Ratchaburi Provincial Court scheduling a conciliation hearing, for four activists and one journalist, indicted for alleged offences against Section 61 of Constitution Referendum Act B.E.2559 (2016) and the against the Announcement of Council for Democratic Reform under Constitutional Monarchy (CDRM) No. 25 concerning criminal prosecution. The defendants denied all charges and intend to defend the case. As a result, the Court will proceed to a witness and evidence deposition at 8:30 am on 17 October 2016, as scheduled.

UPDATED INFORMATION: (Based on documentation by Thai Lawyers for Human Rights)

On 21 September 2016, Mr. Pakorn Areekul, Mr. Anucha Rungmorakot, and Mr. Anan Loket (members of the New Democracy Movement), Mr. Panuwat Songsuwatchai (Mae Jo University student), and Mr. Thaweesak Kerdpokha (Prachatai journalist) reported to the Provincial Court of Ratchaburi for a scheduled conciliation hearing in the case of Vote-No Stickers at Baan Pong. The defendants were indicted for attempted distribution of the stickers displaying dissenting messages, in alleged violation of the Constitution Referendum Act Section 61, which states that any person having disseminated documents inconsistent with the truth or involve violence and incitement shall be punishable by one to ten years imprisonment and a fine of 20,000 to 200,000 baht for an act committed by a group of five persons or more. Further, the Court has power to revoke the right to vote for up to ten years if the accused are proven guilty of the charges.

Before the session, the defendants filed a petition with the Attorney General at Ratchaburi Provincial Prosecutors’ Office, requesting acquittal of the case. The petition of the defendants states that the Referendum Act’s Section 7 has guaranteed the freedom to freely express one’s opinions and disseminate factual information concerning the Draft Constitution Referendum. The stickers displaying messages of “7 August: Let’s Vote No to Reject the Undesirable Future” contain texts, which, in contrast to the indictment, were not inconsistent with the truth, violent, or inciting, and not aimed to prevent voters from casting a ballot or to influence the vote in any direction. The defendants claimed their actions were legal and under the exercise of freedom under the law. In addition, the prosecution does not serve public interest, argues the petition, and instead harms the government’s image in the international community on their human rights record, and disturbs harmony amongst the people.

However, the petition was ignored by the Ratchaburi Provincial Prosecutors’ Office. On 29 August 2016, the public prosecutor indicted the five defendants including one reporter from Prachatai.

At 9:20 am, the conciliation hearing session started in the absence of the prosecutor. The Court read out the case file, then stated that the Constitution Referendum Act was enacted to ensure public order and to prevent any actions deemed to create disturbance during the referendum. Reasoning that it carries low punishment of less than ten years’ imprisonment and a 20,000 to 200,000 baht fine (approximately $ 570 to 5,700 USD), the Court viewed the Bill as provisional rather than permanent. Furthermore, since the Draft Constitution had already been approved, the Court said it shall proceed to deliver the decision immediately if the defendants plead guilty.
The defendants’ lawyer argued that the stickers were not in violation of the Referendum Act, citing the words of Somchai Srisutthiyakorn, Member of the Election Committee (EC). Some of the defendants are students, and one is a journalist who was covering the news in Ratchaburi that day. The lawyer then argued that the alleged actions were based on a difference of opinion, which individuals are entitled to, and that the actions were peacefully carried out in an unaggressive manner, with no intention to orchestrate political unrest. Noting that the case does not benefit the general public, the lawyer asked the Court to move to dismiss the case.

The Court then requested information on similar cases currently being tried in other courts, and stated that it would take such cases as the model and proceed in the same manner. The lawyer cited the Anti-Corruption Centre case, where National United Front of Democracy Against Dictatorship (UDD) members were accused of violating NCPO Order no.3/2015, which bans political gatherings of five persons or more, for setting up a centre to monitor the referendum, i.e. the Referendum Watch Centre.

The lawyer raised concerns aired by the United Nations Office of High Commissioner for Human Rights (OHCHR) that the case would not unite the people, benefit public interest, or reflect respects for human rights. The lawyer also noted that if the defendants were to plead guilty they would face a permanent criminal record. Moreover, the defendants truly believed their actions were legal, and did not intend to distort information to their advantage or agitate the public.

The Court then stated that the case could take different directions depending on judicial interpretation, and noted that the Court would proceed with the deposition hearing if the prosecutor did not withdraw the case. The Court further stated the wish to discuss with the defendants’ lawyer the approaches to this case.

The Court reasoned: on one hand, the prosecution will proceed if the defendants plead not guilty. On the other hand, if they confess to all charges, the Court shall subject them to a punishment under the Court’s discretion granted by the law. In this case, the Court can order punishment that does not reflect on the defendants’ criminal record, based on their age, past record, education, occupation and so forth. The Court would need to consult with the Superior Court for an appropriate approach that would benefit the defendants.

The defendants’ lawyer, however, persisted with the defendants’ intention to defend the case, remarking upon the attention gained from the media and the general public. In addition, the lawyer argued that many politicians who had voiced their support for the Draft Constitution were not charged under the same Act. The defendants’ actions were simply a difference of opinion, said the lawyer, and that the voters could make a sound judgement and decide for themselves. The lawyer then asked the Court to hear the defendants’ statements, as follows:

Mr. Pakorn Areekul, Defendant no.1, claimed that the distribution of the stickers were to express their opinions about the Draft Constitution. If their actions are punishable, then any dissenting opinion of the Draft Constitution is potentially at fault. Mr. Somchai Srisutthiyakorn, Member of the EC, had even stated that he would stand as their witness if the case proceeded stated Mr. Areekul. The defendants will not plead guilty since it will set standards for other cases and create an atmosphere of fear to exercise the freedom of expression in the future read the statement.

Mr. Taweesak Kerdpokha, Defendant no.2, stated that his presence as a journalist was to cover the news of people being charged due to the setting up a Referendum Watch Centre in Ratchaburi. He noted that he had no connection to the stickers and other documents found during the car search, and that such a case harmed the government’s image more when a reporter is prosecuted in this manner.

Following the lawyer’s and the defendants’ statements, the Court read out the indictment, stating the rights and duties of the defendants under the law, the litigation process, and the defendants’ contrition and responsibilities for committing a crime. The defendants then pleaded not guilty and declared their intention to defend the case. The Court set an appointment for the deposition of witnesses and evidence at 8:30 am on 17 October 2016.
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SUGGESTED ACTION:

Please write letters to the authorities listed below, asking them to immediately end any ongoing judicial harassment of the 4 activists and 1 reporter from Prachatai. The Asian Human Rights Commission calls for international pressure to ensure all charges are dropped against them.

In addition, please note that the Asian Human Rights Commission is writing a separate letter to the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression and seeking his urgent intervention into this matter.

To support this case, please click here: SEND APPEAL LETTER