Court verdict puts stamp of approval on ambiguity

In a press release, the court stated that it found the clause in question was not in conflict with Article 4 of the provisional charter. That ruling was in response to a petition by the Ombudsman’s Office following a request by a group of activists. The Constitutional Court on Monday provided its detailed explanation for the verdict.

Court verdicts must certainly be treated with respect. However, critical analysis and debate on interesting court verdicts is something that should be encouraged for better understanding.

The second paragraph of Article 61 in the referendum law prohibits dissemination of untrue, aggressive, violent, vulgar, provocative and intimidating messages through print and electronic media, as well as any other means, with the goal of influencing votes or preventing eligible voters from exercising their right, or causing unrest during the referendum.

Article 4 of the interim charter states that, “Subject to the provisions of this Constitution, all human dignity, rights, liberties and equality of the people protected by the constitutional convention under a democratic regime of government with the King as the head of state, and by existing international obligations bound by Thailand, shall be protected and upheld by this Constitution.”

The Constitutional Court’s verdict in this case has two interesting issues. First, the court ruled that it is not against the interim charter to issue a new law to restrict rights and liberties guaranteed by the constitution. The court explained that the freedom of expression protected under the interim charter may be restricted by certain legal provisions, which is stated in the charter.

The court gave as an example a clause in the previous constitution of 2007 that stated that restriction of rights and liberties “shall not be imposed except by virtue of the provisions of the law specifically enacted for the purpose of maintaining the security of the state, safeguarding the rights, liberties, dignity, reputation, family or privacy rights of other persons, maintaining public order or good morals or preventing the deterioration of the mind or health of the public”.

It should be noted that Thailand’s constitutional guarantee of rights and liberties differs from some other countries. The Kingdom’s supreme law often states that the guarantee of those rights and liberties “shall be in accordance with the relevant laws”. That means a particular law may overrule the constitution even if it restricts certain rights and liberties. It is because that is allowed by the constitution itself. In effect, the constitutional guarantee is completely meaningless.

This is certainly different from some other countries where the individual rights and freedoms are guaranteed in a way that they cannot be restricted by any other law.

The next interesting issue involving the latest Constitutional Court verdict is about the ambiguity of certain terms in the Referendum Act clause in question, namely “aggressive”, “violent”, “vulgar”, “provocative” and “intimidating”. The group that petitioned with the Ombudsman’s Office expressed concern that such ambiguous terms could land defendants in jail.

The Constitutional Court verdict described the terms as “clear words with no specific meanings”. The court gave as an example the word “night” that can refer to any time between sunset and sunrise.

However, the court also admitted that the terms used in Article 61 could lead to judgement. That means the terms are actually ambiguous.

Also, the court seemed to attempt to allay fears by stating that it was likely defendants would not face the severest penalty imposed by the law. In fact, people who do not commit the alleged offence do not deserve any punishment, even if it is the lightest of penalties.