IPU Issues Historic Resolution on Thailand – OpEd

Nearly three years after more than 90 pro-democracy protesters were killed by government forces on the streets of Bangkok, Thailand’s Red Shirt movement has scored a substantial victory before an important multilateral institution, shedding light on the pervasive injustices in the country’s political system.

Following its most recent summit in Ecuador, the Inter-Parliamentary Union (IPU) – a body which has permanent observer status at the UN and which is considered by the UN to be the leading international organisation for parliaments – has issued an historic resolution condemning the unlawful disqualification of Thai Member of Parliament Jatuporn Prompran.

As a prominent Red Shirt leader in the Thai Parliament, Jatuporn was disqualified from his seat in parliament by a coup-appointed judge on Thailand’s Constitutional Court in May 2012 stemming from his participation in the April-May 2010 protests in Bangkok, which later led to periods of detention that made it impossible for him to vote as an MP.

The IPU Resolution maintains that the grounds under which Jatuporn was disqualified “appear directly to contravene Thailand’s international human rights obligations,” while also reiterating concerns that Jatuporn’s arrest occurred under the previous government’s unlawful use of emergency powers and politically motivated charges of terrorism.

According to the IPU Resolution TH/183, filed on 27 March 2013, Jatuporn’s parlimentary seat had been terminated at a time when “it had not been established that he had committed any wrongdoing” and on account of a speech that appeared to fall “within the exercise of his right to freedom of expression.” The resolution also finds that the practice of preventing those accused of crimes from voting represents an “unreasonable restriction,” particularly in the light of the Covenant’s provisions guaranteeing persons accused of a crime the right to be presumed innocent.

The IPU cites concerns over the legal basis and reasoning behind Jatuporn’s preventative detention, and issued a request for a copy of the charge sheet, while also setting issuing a request to the Secretary General “to visit Thailand with a view to raising this matter with the competent parliamentary, executive and judicial authorities and exploring the possibility of IPU assistance in this area.”

The IPU Resolution can be downloaded here. The full text is below:

CASE No. TH/183 CASE No. TH/183 — JATUPORN PROMPAN — THAILAND

The Committee,

Decides to recommend to the Governing Council of the Inter-Parliamentary Union that it adopt the following resolution:

The Governing Council of the Inter-Parliamentary Union, Referring to the case of Mr. Jatuporn Prompan, a former member of the House of Representatives of Thailand, and to the resolution it adopted at its 191st session (October 2012),

Taking into account the information provided by the Secretary General of the House of Representatives in his letter of 15 February 2013 and by the source on 23 March 2013,

Recalling the following:

– Mr. Jatuporn, a leader of the United Front for Democracy against Dictatorship (UDD) and at the time a member of the House of Representatives, played a prominent role in the “Red Shirt” demonstrations that took place in central Bangkok between 12 March and 19 May 2010; in the weeks following the demonstrations, Mr. Jatuporn and his fellow UDD leaders were officially charged with participating in an illegal gathering that contravened the state of emergency declared by the government and with terrorism in relation to arson attacks on several buildings that took place on 19 May 2010, when the UDD leaders had already been taken into police custody; Mr. Jatuporn was quickly released on bail thereafter;

– On 10 April 2011, Mr. Jatuporn took the stage during the commemoration organized at the Democracy Monument in Bangkok to mark the first anniversary of the government’s response to the Red Shirt demonstrations; in his speech, he criticized the then government and the Royal Thai Army for using the pretext of “protecting the monarchy” to criminalize the Red Shirt movement and kill its members the year before; Mr. Jatuporn also criticized the Constitutional Court for sparing the Democrat Party from dissolution, making reference to leaked video recordings that showed some of the justices colluding with party officials; following this, representatives of the Royal Thai Army filed a complaint alleging that Mr. Jatuporn had committed lese-majesty in his speech; the Department of Special Investigations (DSI) asked the Criminal Court to
revoke his bail following the complaint, which it did on 12 May 2011; Mr. Jatuporn was subsequently held in Bangkok Remand Prison until 2 August 2011; the DSI subsequently dismissed the charge and the case was referred to the Office of the Attorney General for consideration on 17 January 2012;

– A week after the revocation of his bail, Mr. Jatuporn’s name was included on the party list submitted by Pheu Thai for the legislative elections to be held on 3 July 2011; the Election Commission endorsed the list after verifying that the candidates met the required legal conditions; in advance of the elections, Mr. Jatuporn’s lawyers repeatedly filed motions requesting that the Criminal Court grant bail or temporary release to allow him to vote; the requests were denied and Mr. Jatuporn was thereby prevented from exercising his right to vote; according to the source, his failure to cast a vote was immediately seized upon by the opposition as evidence that he was not qualified to sit in parliament; at first, the Election Commission certified the election results, allowing Mr. Jatuporn to be sworn in as a member of the new House of Representatives, which first met on the day of his release; in late November 2011, however, the Election Commission ruled by a 4-1 vote that Mr. Jatuporn should be disqualified as a member of parliament and asked the Speaker of the House of Representatives to refer the case to the Constitutional Court for a final ruling;

– On 18 May 2012, the Constitutional Court ruled that Mr. Jatuporn’s detention on election day, and consequent failure to vote in the election, disqualified him from serving as a member of parliament; it reasoned that Mr. Jatuporn was prohibited from voting under Article 100(3) of the 2007 Constitution, which specifies that “being detained by a warrant of the Court or by a lawful order” on election day was one of the prohibitions leading to disenfranchisement, and that this in turn meant that he had automatically lost his membership of his political party under the 2007 Organic Act on Political Parties; the loss of party membership was the basis (under Articles 101(3) and 106(4) of the Constitution) on which he was disqualified from sitting in the House of Representatives,

Recalling that the source affirms that the charges against Mr. Jatuporn are entirely inapposite, that the specific charge of participation in an illegal gathering stemmed from the previous government’s unlawful use of emergency powers, and that the terrorism charges on which Mr. Jatuporn and other Red Shirt leaders were indicted in August 2010 are politically motivated, but that, while the Red Shirts were accused by the government of committing various acts of violence, there exists no evidence that their leaders played a role in planning the attacks, or even knew about them; considering that hearings will be held twice a week in the criminal case between 19 April and July 2013,

Recalling further that Mr. Jatuporn was sentenced on 10 July and 27 September 2012 respectively in two criminal cases to two six-month prison sentences (with a two-year suspension) and fines of 50,000 baht on charges of defaming then Prime Minister Abhisit Vejjajiva, but that an appeal is pending in both cases; bearing in mind that the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression repeated in his report (A/HRC/17/27 of 16 May 2011) the call for all States to decriminalize defamation, Bearing in mind that Thailand is a party to the International Covenant on Civil and Political Rights and therefore obliged to protect the rights enshrined therein,

Considering that, on 1 April 2013, the House of Representatives will start debating changes to the Constitution that are expected to affect inter alia the legal framework governing political parties and their dissolution; recalling that the source fears that Mr. Jatuporn’s disqualification may be used by his party’s opponents to argue that the governing Pheu Thai party “inappropriately endorsed” Mr. Jatuporn’s candidacy, and that Mr. Jatuporn’s inclusion on the party’s slate of candidates therefore caused the election to be conducted in a “dishonest and unfair manner” and that his party therefore should be dissolved,

1. Thanks the Secretary General of the House of Representatives for his letter and cooperation;

2. Reaffirms its view that the letter does not dispel its concerns that Mr. Jatuporn was disqualified on grounds that appear directly to contravene Thailand’s international human rights obligations;

3. Considers that, although the Thai Constitution specifically provides for the disenfranchisement of persons “detained by a lawful order” on election day, preventing those accused of a crime from exercising the right to vote is at odds with the provisions of the International Covenant on Civil and Political Rights, Article 25 of which guarantees the right to “take part in the conduct of public affairs” and “to vote and to be elected at genuine periodic elections” without “unreasonable restrictions”;

4. Considers in this regard that denying an incumbent member of parliament temporary release from prison to exercise the right to vote is an “unreasonable restriction”, particularly in the light of the Covenant’s provisions guaranteeing persons accused of a crime the right to be presumed innocent (Article 14) and “separate treatment appropriate to their status as unconvicted persons” (Article 10(2)(a)); points out that Mr. Prompan’s disqualification also appears to run counter to the spirit of Article 102(4) of the Thai Constitution, which stipulates that only those convicted, not those accused, of a crime lose their right to stand for election once a candidacy has been submitted;

5. Remains likewise concerned that Mr. Jatuporn’s political party membership was terminated at a time when it had not been established that he had committed any wrongdoing and on account of a speech that appeared to fall within the exercise of   his right to freedom of expression; remains also concerned that the courts can rule on the question of party membership when this is first and foremost a private matter between Mr. Jatuporn and his party and there was no dispute between them on the question;

6. Sincerely hopes that, in the light of the above, the competent Thai authorities will do everything possible to reconsider Mr. Jatuporn’s disqualification and ensure that all current legal provisions are in line with the relevant international human rights standards; wishes to be kept informed of the consequences of the constitutional amendment process is in this regard;

7. Remains concerned about the alleged legal basis for and facts adduced to substantiate the charges pending against Mr. Jatuporn and about the possibility that the court may order his return to preventive detention; wishes to receive a copy of the charge sheet; considers that, in the light of the concerns in the case, it would be useful to send a trial observer to the proceedings, and requests the Secretary General to make the necessary arrangements;

8. Remains concerned that Mr. Jatuporn was prosecuted, sentenced and convicted on charges of defamation; concurs in this regard with the recommendation made by the United Nations Special Rapporteur that defamation should not be considered an offence under criminal law; wishes to ascertain, therefore, whether the Thai authorities are contemplating reviewing the existing legislation with this in mind; wishes to receive a copy of the first-instance rulings and to be kept informed of the appeal proceedings;

9. Considers that the present case has ramifications that go well beyond the situation of Mr. Jatuporn alone and concerns the constitutional and institutional relationship between the House of Representatives and the courts; requests the Secretary General to visit Thailand with a view to raising this matter with the competent parliamentary, executive and judicial authorities and exploring the possibility of IPU assistance in this area;

10. Requests the Secretary General to convey this resolution to the competent authorities and to the source;

11. Requests the Committee to continue examining this case and to report back to it in due course.