Court verdict could tear hole in junta’s road map
The fate of the referendum on the charter draft scheduled for August 7 has been thrown into doubt after three Ombudsmen resolved to forward to the Constitutional Court a petition filed by a group of scholars calling for Article 61 of the Referendum Act to
The group, led by Jon Ungpakorn, director of Internet Law Reform Dialogue (iLaw), petitioned the Ombudsmen to consider whether Article 61 contradicts the 2014 interim constitution, which guarantees people’s rights and freedom of expression.
The Ombudsmen last Wednesday agreed with the group that the second paragraph of Article 61 – which prohibits dissemination of untrue, aggressive, harsh, rude, provocative or intimidating messages intended to influence voters or incite unrest – could be deemed in violation of the interim charter that guarantees freedom of expression.
Key figures in authority appear unworried about the impact any court ruling might have on the referendum.
Deputy Prime Minister Wissanu Krea-ngam and Constitution Drafting Commission chief Meechai Ruchupan have reiterated that the referendum can not be put off since doing so would violate the 2014 interim charter’s stipulation that it must be held within 120 days of the CDC submitting its draft to the Election Commission.
They also believe that the court ruling will affect only the controversial paragraph and not the rest of the Referendum Act.
Wissanu, who is the government’s legal expert, said that if the court rules that the paragraph violates the charter, then the three problematic words – aggressive, harsh, and rude – would be removed.
But if we examine three potential scenarios of a court ruling, things don’t look as simple as the deputy PM claims.
In the first scenario, the court dismisses the petition and the referendum process can continue as scheduled.
In the second, the court rules that only the second paragraph is unconstitutional, so the concerned agencies have to amend the bill to comply with the verdict. This process would not take so long.
Third, the court rules that the whole Referendum Act is unconstitutional because the second paragraph is pivotal to the legislation. In this case the whole act would have to be annulled, resulting in a lengthy process of drafting and passing a new bill.
Missing the 120-day deadline would also mean the 2014 interim charter would have to be amended to extend the pre-referendum period.
Delaying the referendum could also impact the National Council for Peace and Order’s road map and its election date, set for late next year.
Some observers also detected doubts in the reaction of Prime Minister Prayut Chan-o-cha, who appears to be the only government member concerned about the verdict.
Prayut said that if the Constitutional Court rules Article 61 of the referendum act is a breach of the interim charter, the referendum would be postponed.
“But it won’t be me that orders the postponement. Second is the question of when the court issues the ruling? If it rules before August 7 and the ruling says it is unconstitutional, we must stop. Otherwise we can continue with the referendum as scheduled,” he said.
The remark seemed aimed at sending a political signal, or perhaps he just wanted to remind the court that its verdict had the potential to derail the junta’s road map.
Worse still would be any accusation that the junta is trying to scrap the referendum in order to extend Prayut and his cohorts’ stay in power.
Those same accusations emerged when the first charter draft, written by Borwornsak Uwanno’s committee, was shot down by the now defunct National Reform Council (NRC).
Had the NRC approved the draft, Thailand might now be witnessing an election campaign or even a new government, as scheduled in the original road map.
Now, the second road map seems in danger of being overtaken by events on the ground.
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