Protesters confronting crowd control police during a protest at Nang Loeng Intersection on 28 September 2021

2nd jail sentence for protest-related violations of emergency decree raises concerns

On Tuesday, the Court handed out one-year jail sentences to 7 defendants arrested for participating in a protest on 11 August 2021. The seven were found to have disrupted public order, a violation of emergency decree provisions enacted for purposes of disease control. The ruling raises concerns the decrees are being broadly interpreted in order to stifle political dissent.

The confrontation between the protesters and crowd control police (Picture from Thalufah)

On 2 August, Ratchadapisek Criminal Court held a hearing for 8 people who were arrested by crowd control police on 11 August 2021 at a protest staged by Thalufah group at Bangkok’s Victory Monument.

According to the Thai Lawyer for Human Rights (TLHR), the eight were charged with violating provisions of the emergency decree and violently resisting arrest. The case against one defendant, who failed to appear and could not be contacted, was dismissed.  The other seven were tried and sentenced.

The charges of violently resisting arrest were dismissed after testimony made it clear that the arresting police officers were uninjured and the defendant unarmed.

However, the seven were found to have disrupted public order, an offence under the emergency decree.  Citing its stipulations, the court ruled that staging the protest in a highly-restricted area was a clear offence, leaving authorities unable to maintain public order.

In stressing public order, the Court precluded the need to consider whether the protest, which was held in a well-ventilated area, actually posed a threat to public health or not. By attending a public gathering of more than five people, the defendants were in violation of the law, warranting 1 year jail sentences and 20,000 baht fines.

The jail sentences were suspended for 3 years.

In testimony given before the hearing, the defendants stated that they were not there to protest. One, Worawan Sae-aung, or “Aunty Pao,” claimed that she was there as a vendor. Although known to be an outspoken critic of the government, she said that she was selling things when the police arrested her.

Other defendants testified that they were passing by the protest and stopped to observe the situation when the police fired rubber bullets at them and arrested them. One testified that he and his wife were knocked off their motorcycle by a police officer with an anti-riot shield. He also said that his foot was injured in the fall but the police did not provide him with medical assistance.

Another defendant testified that he went to Victory Monument that day because he had an appointment with a doctor at a nearby hospital. He said that when the crackdown began, he was buying goods but decided to leave on his motorcycle.  Instead, the police ignored his explanation, arrested him, tied his hands with a cable tie, and placed him in a police detention truck.

The presiding judge issued the ruling after a one hour discussion with the Deputy Chief Justice of the Criminal Court.

This is the second instance in which a prison sentence has been issued for an emergency decree violation related to political expression. The first was on 12 July when the Pathumwan Court handed 2 month jail sentences and 10,000 baht fines to Parit Chiwarak and Jutatip Sirikhan for staging a public forum to mark the anniversary of Wanchalearm Satsaksit’s abduction on 5 June 2020.

2 years on, abducted activist still missing, advocates and relative prosecuted

The verdict reaffirms the legitimacy of the Emergency Decree and five additional public gathering bans issued by Gen Pornpipat Benyasri, then Chief of Defence Forces, which were made when Covid-19 was rapidly spreading, causing thousands of cases and over 50 deaths in Thailand.

TLHR notes that this ruling differs from earlier rulings in the Phayao and Lop Buri courts, which found that the Chief of Defence Forces or other designated officials could issue orders to oversee public gatherings in crowded spaces but could criminalise ‘staging a protest that may risk infection.’

Kunthika Nutcharus, the defendantsattorney, made three observations about the ruling on Tuesday. First, it was a draft, not a finalised version, so she has yet to see or hear the exact wording of the official judgement.

In finding the defendants guilty, for example, the Court cited social order as a “higher moral principle,” a vague justification that may be clarified in the final judgement.

Second, Kunthika confirmed that the judge consulted at length with the Deputy Chief Justice of the Criminal Court, a step which her experience only happens in political cases.

She added that the representatives of international legal entities observing the trial also questioned the judge's independence, taking note of when the judge left the proceedings and for how long.

Lastly, she observed that attaching a three year suspension to a one year jail sentence was asymmetrical and could be understood as a disturbing effort by the Court to prohibit the defendants from engaging in various forms of political expression for a long period of time.

Note: Kunthika's statement has been replaced with an edited version at 14.13 of 4 August 2022.

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