Overall analysis on contempt of court With regard to the Thai offence of “insult of the court”, similar to other countries, there is an inherent clash between maintaining the authority of the judiciary, the right to a fair trial and freedom of expression. However, the Thai treatment of “insult of the court” differs from other countries in that there is no strict legal test to determine if an “offence” has been committed. These strict legal tests that exist in other countries ensure that freedom of expression is not infringed unjustly. In addition, a defence to be established on truth and fair comment and the social need for public interest is not supported in Thai “insult of the court” cases. As demonstrated by the Supreme Court’s legal reasoning in the case of Sudsa-nguan, there is no clear and sound legal test applied to show how the “offence” has a high likelihood of undermining and prejudicing the administration of justice and that the legal process was seriously prejudiced. Another problem arises from the lack of a clear and consistent interpretation of the word “court vicinity”. A Facebook post conducted at the offender’s house was once interpreted as a punishable act with intention to cause damage in the court vicinity. The case against seven activists was for an activity clearly conducted outside the court’s fence but near the court sign, while there was a court decision to punish a person who wrote and submitted a complaint letter against judges to official bodies outside the court building. The legal proceedings for contempt cases are conducted in a special procedure that violates the rights of the accused. That legal representation for defendants is not a requirement for the trial is a violation of Article 14 of the ICCPR. Decisions by judges are often made in a short space of time, demonstrating that judges do not give sufficient consideration to determine if the trial proceedings in question have been impeded or prejudiced or if the reputation of the judiciary has been impaired. Section 61 of the Referendum Act of 2016 In April 2016, the junta-appointed parliament passed the Referendum Act 2016 for the constitutional referendum on 7 August 2016. The draft constitution was written by a committee appointed by the NCPO without any public participation in the drafting process. The draft also installed many new mechanisms to ensure the military roles in politics; for example, it appointed 250 senators, set up the ethical standards for politicians, and established that the national strategy would be drafted by the junta. The NCPO therefore needed this draft to pass the referendum with as little resistance as possible. The Referendum Act of 2016 was enacted for a constitutional referendum and to control the political atmosphere before the referendum date. Section 61 was the main problem of this law, as it limited freedom of expression on criticism of the draft constitution. Section 61 of the Referendum Act states: Any person who commits following acts; (1) to cause confusion to affect orderliness of voting, Anyone who publicizes text, images or sound, through either newspaper, radio, television, electronic media or other channels, that is either untruthful, harsh, offensive, rude, inciting or threatening, with the intention that voters will either not exercise their right to vote, or vote in a certain way, or not vote, shall be considered as a person causing confusion to affect orderliness of voting. Any person commits the act to cause confusion to affect orderliness of voting shall be punished with imprisonment of not exceeding 10 years and a fine of up to 200,000 Baht. The Court may order to revoke his/her right to vote of not exceeding five years. If the offences are committed by a group of five persons or more, each person shall be punished with imprisonment of one to ten years, a fine from 20,000 to 200,000 Baht and a 10-year revocation of voting right by court.57 The Referendum Act of 2016 caused a lot of problems in the society because the legislators did not limit the officials’ authority and did not try to protect people’s freedom of expression. Therefore, there were a lot of innocent people who were affected by this act. Under the military rule, from 25 April 2017 to 7 August 2017, at least 64 individuals have been arrested or charged under Section 61 of the Referendum Act and from 19 June 2017 to 30 July 2017, at least 131 individuals have been charged under Head of the NCPO Order No. 3/2015 and other laws for participating in activities related to the referendum.58 57 Thai Lawyers for Human Rights. (2016, 12 July). Vote-No Activists and Reporter Prosecuted under Constitution Referendum Act. Thai Lawyers for Human Rights. http://www.tlhr2014.com/th/?p=1107 58 “Table of charges against Referendum Act of 2016”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/en/ node/363 138 / Unshackling Expression