Charter referendum: Shhh! Don’t tell me what you think!

A law governing the referendum is now in force but nobody is clear what one can or cannot do or say to avoid breaking it.

For one thing, Articles 61 and 62 of this puzzling piece of legislation say nobody is allowed to “incite” others to vote for or against the charter draft. In fact, even before the law was promulgated last week, Premier Prayut Chan-o-cha suggested that even those “campaigning” for or against the draft could land in jail for up to 10 years.

But what constitutes “inciting” or “campaigning?” Nobody can say. The Election Commission (EC) is supposed to be able to answer that question. But even the senior official concerned can’t tell you whether wearing a T-shirt with a “Vote No” message represents a violation of the law or not.

EC Commissioner for Public Participation Prawit Ratanapien could only come up with a warning: Don’t do anything that could be considered a borderline case. Don’t try to convince others and don’t use expletives – or impolite language in any form.

What constitutes “borderline?” He wouldn’t specify. Is it “safe” to post a Facebook message supporting or opposing the draft? Deputy Premier Wissanu Krea-ngarm was asked this question the other day. His response: Do it at your own risk.

Prawit’s personal advice: “To be on the safe side, you should only talk about your own ideas on the issue, but don’t try to persuade others. If you try to convince others of your way of thinking, someone might interpret that as inciting others. That could be risky. Someone who thinks you are trying to create trouble by inciting others could file a complaint against you at any police station around the country – not just with the EC. So don’t do anything that could put you in a vulnerable position.”

But then, even following that cue, expressing your personal opinion isn’t all that safe. Voicing your thoughts in public – even if you make it clear they are your personal ideas – can always be seen as trying to convince others, even when they come with the disclaimer, “Please be informed that you are not supposed to agree or disagree with what I have to say from now on or thereafter!”

What if a political party calls a press conference to state its position on the charter draft? Is that permissible under the new law?

EC Commissioner Prawit, in a Q&A with the Thai Post on Sunday, was equally non-committal: “Anything beyond expressing your personal opinion is risky. That’s not because you might have done something clearly in violation of the law. It’s because someone else may think you have done something wrong. He or she could file a charge against you – and it’s you who have to answer the complaint.”

But then, the Constitution Drafting Committee (CDC) led by Meechai Ruchupan is supposed to be explaining to the public why it has drawn up this highly important document. A CDC member who defends the draft could be seen as “persuading” others to vote for the charter. Is that against the law or not?

Prawit says CDC members are also trying to sort out that problem as well. “They aren’t supposed to be telling the public to accept or not accept the draft. They are simply supposed to explain why they wrote such and such provisions,” he said.

That, of course, could get quite confusing if the charter writers, faced with the question of whether they think the public should vote Yes or No in the referendum, play it safe by responding: “I can’t say whether you should vote for or against. I can only say we have drawn up a new constitution to the best of our ability.”