Author: Tyrell Haberkorn, University of Wisconsin-Madison
On 11 December 2018 Thai Prime Minister General Prayuth Chan-ocha promulgated Head of the National Council for Peace and Order (NCPO) Order No. 22/2561, which ostensibly relaxed restrictions on civilian participation in politics ahead of the elections planned for February 2019. The order revoked nine NCPO announcements and orders out of a total of 535 issued between the May 2014 coup in which the NCPO seized power and September 2018.
The problem with these announcements and orders, which are summarily issued by the NCPO or General Prayuth with authority granted by special articles in the 2014 and 2017 constitutions, is that they become immediately legal, constitutional and final upon being proclaimed. They will remain part of Thai law until being revoked, either en masse or individually, even once the NCPO exits power.
Among those revoked in December 2018 was Section 12 of Head of the NCPO Order No. 3/2558, put in place on 1 April 2015, which criminalised political assembly of five or more persons and stipulated a punishment of six months and/or a fine of 10,000 Thai baht (US$300). ‘Political assembly’ was left undefined. The hundreds arrested for and accused of violating the order have variously joined silent commemorations of the coup, marched in street protests and, in one case, held up a sign at an academic conference.
In August 2018 five individuals were indicted in the Chiang Mai district court for violation of Head of the NCPO Order No. 3/2558. The five were two academics (Chayan Vaddhanaphuti, Chaipong Samnieng), two students (Nontawat Machai, Teeramon Buangam) and an independent writer and translator (Pakavadi Veerapaspong). They were accused of being involved in holding up a sign that stated ‘An Academic Conference is Not a Military Barracks’ at the International Conference on Thai Studies (ICTS) in July 2017.
Similar to other academic seminars and conferences since the May 2014 coup, at ICTS there were plainclothes military and police intelligence photographing speakers and audience members, conspicuously taking notes on panels critical of the regime and otherwise interrupting the conference. In response to these actions as well as broader restrictions on freedom of thought at the conference, a group of 180 Thai and international academics signed a declaration in support of academic freedom, and the sign was posted.
A few days after the conference, a military officer made a complaint against the five individuals, who were ultimately indicted and summoned to hear the complaint against them. Outcry and a wave of support for them ensued, with statements from a group of international Thai Studies academics and from human rights and professional organisations including Scholars at Risk, Human Rights Watch, Amnesty International and the Association for Asian Studies.
Witness hearings began in early December 2018, with the prosecution and court impervious to the demands to drop the charges and end the case. They were set to continue on 12 December, one day after General Prayuth revoked Head of the NCPO Order No. 3/2558. Although the revocation noted that it would not affect any ongoing cases, Thai Lawyers for Human Rights pointed out that the Thai Criminal Procedure Code is clear that a defendant cannot be prosecuted and punished if there is no law in force that criminalises their actions. The court seems to have shared this concern — at the beginning of the 12 December session, hearings were suspended while the status of the prosecution following the new order was considered.
The court reconvened to issue a ruling on whether the prosecution can continue now that the actions of the defendants are no longer criminalised on the morning of 25 December. The court ruled to dismiss the charges and case altogether.
This ruling is significant for the five defendants as well as Thai society at large, particularly at this key pre-transition moment. The lives of the five individuals accused have been interrupted and their freedom threatened. Ending the case has ceased these threats.
The primary tool of the NCPO’s regime has been the use and abuse of law, including their own orders and announcements. The court’s ruling on whether the Criminal Procedure Code applies here indicates that a modicum of judicial independence still remains in Thailand. Ending the prosecution of individuals for whom the law criminalising their actions has been revoked is a key step towards rebuilding the rule of law.
But this ruling is only a tentative first step. What happens next matters a great deal. All other charges involving Section 12 of Head of the NCPO Order No. 3/2558 must also be dropped. The remaining over 500 NCPO orders and announcements summarily prosecuted must be revoked, and the spurious charges made against civilians under them dropped. These would be concrete steps towards creating space for people’s participation in politics ahead of the upcoming elections, which was, after all, the junta’s stated reason for issuing Head of the NCPO Order No. 22/2561.
Eventually, the prosecutorial lens needs to be turned towards the dictatorship itself. But this, like rebuilding the rule of law, is likely to be a long-term project in Thailand.
Tyrell Haberkorn is Associate Professor of Southeast Asian Studies in the Department of Asian Languages and Cultures at the University of Wisconsin-Madison.
This article is part of an EAF special feature series on 2018 in review and the year ahead.