Defendant lawyers have also found that given what they describe as the ambiguity of the Act, it is even harder to prove that their clients’ actions were in line with democratic principles.
“Section 61 of the Act allows the authorities to broadly interpret the provision and they can consider anyone as having committed wrongdoing against the law,” lawyer Pawinee Chumsri of TLHR said.
Pro-democracy observers and legal experts said the Referendum Act created a climate of fear after it was promulgated in mid-April.
Legal experts from non-profit group Internet Law Reform Dialogue (iLaw) and former senators championing human rights believed the second paragraph of Section 61 of the Act was “ambiguous”, and it could lead to confusion and a climate of fear, under which people are afraid to express their views towards the draft. They petitioned the Ombudsman, which submitted their claim to the Constitutional Court. It asked the court to rule on whether the law violated the 2014 Interim Charter, which guarantees people’s right to expression.
Under the section, dissemination of “false”, “vulgar”, “provoking”, and “intimidating” messages relating to the referendum with the “intention” to incite unrest or influence voters to cast ballots either way was deemed a violation of the Act, which carries a penalty of up to 10 years in jail, equivalent to a murder offence.
TLHR is working for 22 of the 44 defendants, while the other cases are being looked after by other groups of lawyers. The 22 are involved in five separate cases. These include the high-profile cases of the seven anti-coup student activists who distributed anti-draft pamphlets in Samut Prakan province, and the case of a Prachatai journalist arrested while working in Ratchaburi province, Pawinee said.
All of the defendants are on bail. Of the five cases, two have been forwarded to the Court of Justice by public prosecutors, the legal team revealed. “Most of them were arrested following the dissemination of pamphlets with information against the draft or for campaigning against the referendum,” Pawinee said.
The team of lawyers has learned that not all their clients’ charges relate to Section 61 of the Act. They have found that in some cases the defendants were arrested under Section 61 alone, while others were charged under Section 61 along with other offences relating to national security related laws such as the National Council for Peace and Order’s ban on political gatherings, the Computer Crime Act, and sedition in the Criminal Code.
Those charged under Section 61 will be tried in a civilian court, while those charged under “national security” laws face the further complication of being tried by a military tribunal, Pawinee explained.
Pawinee said the vagueness of the law made it difficult to fight the cases, and it was tougher for cases to be tried in a military court, where the trial process has been criticised for not being in line with international standards.
The lawyer said she and her lawyer colleagues would adhere to democratic principles to defend the cases because they believed the accused did not commit any offences. “They did not perpetrate [an offence], we know. They just expressed what they think about the charter draft.”
She said experts would testify that the defendants’ actions were legal and Section 61 was vague and did not qualify as a law due to its ambiguity.
Moreover, she added, the provision breached Section 7 of the Referendum Act which ensured people’s freedom of expression related to the referendum.
The lawyer team plans to ask the Attorney-General to withdraw the cases, arguing that the cases contributed nothing in terms of public benefit because the August 7 referendum is over and the Referendum Act only applied to that event.
Of all the cases handled by TLHR, Pawinee said, the accused would deny all the allegations and they would refuse to enter into a justice reconciliation process, an alternative to the punitive measure of a jail sentence.
Some observers view the legal fight as a gesture of disapproval over the referendum law. They observed that the law seemed to be set out to quell anti-charter campaigns, given that no pro-charter campaigners were charged.