On 16 November 2016, the inquiry officer at the Khon Kaen Provincial Police Station in Northeastern Thailand scheduled 8 alleged offenders of the ‘Talk for Freedom’ case in violation of the Order of the Head of the National Council for Peace and Order (NCPO) no. 3/2015, which bans any political gatherings of five persons or more, to report to the military prosecutor at the 23rd Military Circle in Khon Kaen. The inquiry officer has investigated two expert witnesses on 2 and 24 November 2016, yet has another witness investigation on 6 December 2016. Meanwhile, the alleged offenders, most of whom are college students, have final exams in December, therefore, were rescheduled to report at 10 am on 19 January 2017 at the Khon Kaen Police Station.

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The 8 northeastern-based activists and human rights defenders, including Mr Jatupat Bookpattaraksa or ‘Pai Dao Din,’ a prominent activist based in Northeastern Thailand, Mr Narongrit Oopachan and Mr Chatmongkol Jenchiewchan, college students, Ms Natthapon Arjharn, local land rights activist, and Thai Lawyers for Human Rights documentation staffs Ms Neeranuch Neamsub and Ms Duangthip Karnrit, who had previously reported to the police station on 4 October 2016 and submitted their written statements, were scheduled to appear on 16 November at the Khon Kaen Police Station to be taken to the military prosecutor in the Sri Patcharin Military Camp. Jatupat, a well-known activist of the Dao Din Group based in the Northeast and member of the New Democracy Movement (NDM), was released on bail from 18 days in detention with 13 days of hunger strike in two different cases related to his organising peaceful assembly in August (Read more). He is now facing another political assembly charge for organising a coup commemoration event on 22 May 2015 at the Khon Kaen Democracy Monument (Read more).

Other two alleged offenders, Dr Cherdchai Tantisirin, a former Member of Parliament from Pheu Thai Party, and his wife Asst Prof Panwadee Tantisirin, a lecturer at the Faculty of Nursing at Khon Kaen University, who previously reported to the police to be informed of their charges on 30 September; however, were not scheduled. Meanwhile, another alleged offender Mr Rangsiman Rome, a key NDM member, previously refused to report himself nor be involved in the legal proceeding, stating that any legislation issued by the NCPO lacked legitimacy. Rangsiman is also facing charges and legal proceedings in military courts in Bangkok under Section 61 of the Constitution Referendum Act 2016 and the Head of the NCPO Order no. 3/2015 for participating in a group that distributed documents deemed to prevent voters from casting a ballot or convey the vote.

At presence, the inquiry officer had finished the investigation on two expert witnesses, Mr Pongsak Chanon, Coordinator of Asia Network for Free Elections (ANFREL) in Thailand and Specialist at We Watch Network—a youth election and referendum watch group, and Associate Professor Janjira Eiammayura, the Faculty of Law at Thammasat University, on 2 November and 24 November 2016, respectively.

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Mr Pongsak Chanon, Coordinator of Asia Network for Free Elections (ANFREL) in Thailand and Specialist at We Watch Network—a youth election and referendum watch group

Pongsak’s statement explains that he has no involvement with the event ‘Talk for Freedom’ charged for political assembly offence. Based on his expertise, the referendum watch and public observation play a key instrument to confirm the legitimacy of the elections, protect the civil and political rights of voters, and promote the transparency of majority-elected government, all of which are essential to the democratic development in Thai society. Speculations and recommendations from open discussions with information collected on the ground shall produce precautionary measures to counter political influence of local figures and reported corruptions in the referendum, among others, as well as raise public awareness.

Further, the statement quotes Mr Krit Urwongse, Director of the Political and Electoral Development Institute, that the state and government agencies must allow voters the equal rights and freedom in expressing comments on the draft. Voters are to be provided with sufficient implications of the draft to freely cast a reasonable vote that reflects their will. Such remark is in accordance with the universal principles of referendum and elections in ways that it confirms fairness and freedom of people’s difference of opinions, as well as complies with the International Covenant on Civil and Political Rights (ICCPR), a treaty Thailand ratified, and the Universal Declaration of Human Rights (UDHR).

According to Pongsak, apart from the international standards Thailand must withhold, Section 7 of the Constitutional Referendum points out that, “a person shall have freedom of speech [to] disseminate opinions related to the voting honestly [if] not infringing the laws.” Based on this article, Pongsak notes that the event ‘Talk for Freedom’ is a legal exercise of freedom of expression and the public participation that complies with the Referendum Act and has been held in a peaceful manner. The forum acts to fulfill the insufficient advocacy of the government and the Electoral Commission of Thailand (ECT), with no purposes to incite the public or endanger national security. Any obstruction or prosecutions against those who promote the dialogue on the draft inflict on the public fear to express opinions or to freely discuss, and should be seen as the disruption of democracy, civil rights violations, and discrimination against a group of dissenters. Therefore, the activists should not be charged under political assembly offence, while the authorities fail to prosecute the draft supporters under the same charges (Read more).

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Associate Professor Janjira Eiammayura from the Faculty of Law at Thammasat University

On 24 November 2016, Associate Professor Janjira noted two points in her statement. First, the referendum is one of the legal measures under direct democracy for people to participate in policy initiatives and other governance directly without their representatives. The government must provide a free and fair process that both supporters and skeptics can impart information and express their opinions on the draft, as well as permit the public access to the draft details that allow them to cast a reasonable vote within their knowledge. Any suppression of diverging comments leads to the illegality and illegitimacy of the Draft Constitution and, therefore, is inconsistent with the Constitution. This will render a waste of time and money, including the people’s tax. Furthermore, the referendum will not deliver the people’s true will, which is the ultimate purpose of democracy. Second, all Thai Constitutions are the evidence of people’s wills, as well as guarantee the promotion of rights and freedom of the people. The advocacy, both for and against the draft, simply indicates their legitimate opinions on the drafts itself as the reflection of their will and participation as a citizen, as stated within the Constitution.

Similar to Pongsak’s, Janjira’s statement observes that the alleged acts did not violate Section 7 of the Referendum Act and the Head of the NCPO Order no. 3/2015 since all Thai Constitutions guarantee and protect people’s rights and freedom in accordance with the UDHR and the ICCPR. The state’s exception on this case might pose as a breach to the ICCPR, which can translate as a serious violation on its people in the international community. Further, Janjira voiced that all government agencies must respect and comply with its international obligations that people shall express their opinions as they see fit under the law. The special circumstance or state of emergency do not exempt the government from allowing such freedom and rights.

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The case stems from the 31 July 2016 event titled the ‘Talk for Freedom: The Constitution and Isaan People’ forum at the Faculty of Agriculture, Khon Kaen University, organised by the student activists. Students, college lecturers, and Northeastern-based civil society networks together joined the event to discuss their opinions on the Draft Constitution and the then upcoming referendum dated 7 August 2016. Similar gatherings were held at Thammasat University and elsewhere. As of now, there are 11 people who have been facing accusations and charges in this case which originated from a public discussion over the Draft Constitution in Khon Kaen.

Although the activity was carried out prior to the Constitutional Referendum, which won approval from Thai voters nearly four months ago, yet many activists and people have continued to face legal actions resulted from their peaceful exercise of freedom of expression and assembly. At present, 208 persons are facing prosecutions with various offences concerning the referendum, with the greatest proportion of defying the Head of the NCPO Order no. 3/2015, which prohibits political gatherings of five persons or more.