The problems arising from the legal provision itself Use of the Act to lay charges for unclear offences Ambiguity of the law There are several ambiguities in the legal provision, for example, the terms “harsh”, “offensive” or “inciting”. It is difficult to know which expression constitutes an offence against this section. Moreover, there are no definitions for these words in the Penal Code. This is against the principle of the Criminal Code that there should be clear definitions, so people can know their rights and freedoms. Criminalising rude words Expressing oneself with “rude” words may not be proper, but under normal circumstances it is not illegal. Moreover, there are no clear definitions explaining which words constitute rudeness. The interpretation of which words are rude is subjective and depends on the situation. Limiting point of view The use of the term “untruthful” in this act causes problems because when people read the draft constitution, they use their own experiences, ideas and beliefs to interpret the draft constitution. This means that people could have opinions on the draft constitution that might be different from those of the individuals who wrote it. The problems arising from its enforcement Use of the Referendum Act to threaten dissent The military government kept advertising the good aspects of the draft constitution through millions of leaflets, all television channels and all kinds of media. Even Gen. Prayuth, the head of the NCPO, gave an interview to say that he would vote in favour of the draft. The drafting committee refused to join any debate, given that it was not its duty as a neutral body. But campaigns against the draft were strictly repressed. All of the people who were arrested and charged were “Vote No” supporters. The Election Commission also played an active role to threaten and prohibit people from campaigning. For example, Somchai Srisutthiyakorn, a member of the Election Commission, said that he was told that there was a Facebook page of one political movement which sold t-shirts. Those t-shirts had messages that might affect the voters, so this might qualify as an offence under Section 61 of the Referendum Act. The political movement that Somchai mentioned was the New Democracy Movement and the message on the t-shirts was: “Vote No for the future we didn’t choose”. An example of this was the case of “Vote No” stickers in Banpong District, in which the five defendants were allegedly carrying anti-constitution materials. However, they were charged with only the “Vote No” stickers with a message “Do not accept an unchosen future”. Even in the complaint that was filed with the court, there is no clear explanation of how such messages violate the law. Case study 1: Chuwong59 Chuwong, a lawyer and leader of the Krabi Landless Peasantries Group, posted a message on Facebook stating that he would vote no to the draft constitution on 7 July 2016. Someone saw his message on Facebook and went on to report the case to the police. On 15 July 2016, the police requested the court to issue an arrest warrant against Chuwong under the Referendum Act. Chuwong went to report to the police on 16 July and denied the charge. The police released him on bail on the same date with a cash deposit of 150,000 baht. Case study 2: “Vote No” stickers60 On 10 July 2016, Pakorn, Anan and Anucha, three New Democracy Movement activists, and Taweesak, a Prachatai journalist, were taken to Ban Pong police station for allegedly carrying anti-constitution material in their car. Later on, Phanuwat, a student from Maejo University, was taken from his residence in Ratchaburi to the police station. They were charged with violating Section 61, paragraph 2 of the Referendum Act for distributing the stickers, and were detained at the Ban Pong police station. On 11 July 2016, Ratchaburi Provincial Court granted bail to the five for 140,000 baht each. The trial of this case has finished. The court will render a verdict on 29 January 2018. Case study 3: Piyarat61 Piyarat, a 25-year-old activist, went to cast his vote at a polling station in the Bangna District Office on 7 August 2016, which was 59 “Chuwong: Posted Status Vote No to Draft Constitution”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/ en/case/724 60 “Vote No Sticker at Banpong District”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/en/case/730 61 “Piyarat:Tearing Referendum Ballot”. Freedom of Expression Documentation Centre. https://freedom.ilaw.or.th/en/case/732 THAILAND / 139