Article 61 ruling ‘crucial to rights’

THE government has been accused of applying a heavy hand in restricting freedom of expression ahead of the referendum on August 7.
In response, human rights advocates and scholars have petitioned the Constitutional Court via the Ombudsman for a ruling whether the referendum’s key legal mechanism, Article 61 of the new referendum law, violates people’s rights as guaranteed under the interim constitution.
The court will rule on the issue on Wednesday.
Jon Ungpakorn – director of the Internet Law Reform Dialogue (iLaw) and a former senator who advocated human rights – is leading the campaign.
He spoke to The Nation’s Piyaporn Wongruang about why the group decided to file the petition and how important freedom of expression is for the country’ future.

Could you share with us the reasons why you decided to file the petition?
Our point is this: We are going to have one of the biggest decision-making processes, which is the referendum, on one of the most important issues of our lives, which is the new charter. The passage of the new charter this time means a lot to our future because it has been written in a way that is difficult to be amended, meaning anything written in there would be with us for a long period of time.
To decide on such an important matter, the referendum must be free and fair the most, meaning it must open every opportunity for people to learn about what is being decided first so that they can make an informed and independent decision on it.
That’s why freedom of expression, especially during the period of time ahead of the event, is particularly important.
Actually, this is a fundamental principle applied all over the world. You must know the topic first before you make a decision.

What problem do you see with Article 61 under the referendum law?
We think that there is something peculiar in the process. We view that Clause 2 of Article 61 restricts people’s rights to expression. Not only is it written in a vague manner, which is open to arbitrary enforcement, it also carries a very harsh penalty, which is even harsher than a sedition offence.
On the surface, it seems to carry no problem at all, but when we look into it we will see that the clause is indeed critically problematic.
So, we studied the present charter to see what we can do about this. And the charter allows us to file a petition via the Ombudsman with the Constitutional Court to rule on it. Or the other way, we must become the law offenders first and then we will be able to file the case to the court directly, which we think is not a good option. That’s the reason why we have filed the petition through the Ombudsman.
iLaw had consulted on the issue with those who have worked on promoting human rights, and a number of scholars and human rights advocates agreed with us. So, they decided to show their support to our petition.

What have you filed with the court to rule on?
What we have requested the court to do is rule on whether the clause in the article is constitutional. The Interim Charter guarantees people’s rights and liberty, which is also protected by other international obligations [the country has]. So we view that the clause of the article does violate the constitution as well as those obligations including the International Covenant on Civil and Political Rights.
(Article 4 of the provisional charter states that “all human dignity, rights, liberties and equality of the people protected by the constitutional convention, and by international obligations bound by Thailand, shall be protected and upheld by this Constitution”).
We have heard complaints about the restrictions as a result of this clause a lot. So we started to study those, including from social media, and brought the issue to our meeting before resolving to file the petition as we are an independent organisation promoting people’s rights to expression as well.

What do you expect to hear from this case the most?
We just want people not to be afraid to speak their minds. If you have noticed, we have been threatened by state authorities almost every day. That is the equivalent to shutting people’s mouths. It’s actually not only about this clause, there are several other regulations that follow.
They are written in a similarly vague manner. See a referendum campaign as an example. Up until now, is anyone clear whether we can run such a campaign? While the state is apparently able to do so by sending volunteers out to meet people and tell them about the charter and its benefits, other groups who tell people not to accept it are arrested. So, is this called fairness?
In fact, with or without Article 61’s Clause 2, it’s already not fair because we actually face a number of regulations. The clause just makes the mouth gagging worse.

What would you like to hear from the court?
It’s sort of a test. Legally speaking, if the court does rule that the clause violates the charter, the referendum will still continue. What we will get, as citizens, is a bigger opening of our freedom of expression. In any democratic environment, people must have the courage to speak their minds. It’s fundamental and at the heart of the democratic learning process.
If we can pass this process, under which people can speak their minds amid their differences without violence, I think we can still have a future, with democracy growing along with us. It’s a test for us people as well.