Translation:Constitutional Court Order No. 67-69/2555

by the Constitutional Court of Thailand

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Order No. 67-69/2555

Case No. 55/2555 Case No. 58/2555 Case No. 29/2555

In His Majesty's Name

The Constitutional Court

Between  $\scriptstyle {\left\{{\begin{matrix}\ \\\\\ \\\ \\\ \\\ \ \end{matrix}}\right.}$  Rueangkrai Likitwatthana, 1st Petitioners Nuengdin Wimuttinan, 2nd Singthong Buachum, 3rd   General Bunloet Kaeo-prasit, 1st Respondents Squadron Leader Prasong Sunsiri, 2nd

Re: Petitions for Constitutional Court decision under the Constitution, section 68

Rueangkrai Likitwatthana, Nuengdin Wimuttinan and Singthong Buachum preferred three petitions to the Constitutional Court for its decision under the Constitution, section 68, as to whether General Bunloet Kaeo-prasit and others have exercised the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State or to acquire the national government power by the means not recognised by the Constitution.

Having considered, the Constitutional Court found that the three petitions are of proximate issues. For the sake of the proceedings, the Constitutional Court, before dealing with the three petitions (Cases No. 55/2555, No. 58/2555 and No. 59/2555), ordered them to be consolidated and directed Rueangkrai Likitwatthana to be cited as the 1st Petitioner, Nuengdin Wimuttinan, the 2nd Petitioner, Singthong Buachum, the 3rd Petitioner, whilst General Bunloet Kaeo-prasit is cited as the 1st Respondent, and Squadron Leader Prasong Sunsiri, the 2nd Respondent.

The facts derived from the three petitions and their supplementary documents are as follows, in summary:

The first petition (Case No. 55/2555)

The 1st Respondent is the President of the Siam Protection Organisation which organised the anti-government rally, called "Stop National Crisis and Downfall", at the Royal Turf Club of Thailand under His Majesty's Patronage on 28 October 2012. The 2nd Respondent took part in the rally and addressed the audience about an anti-government plan. After the rally, the 1st Respondent scheduled another rally to be held at the end of November 2012. The 1st Respondent then gave interviews to the mass media on various occasions that the Government will be unseated if more than one million persons participate in his rally, and that his aim is to cause the Government to resign or dissolve the House of Representatives without a new election, but a working team will instead be set up in the form of a popular council of revolutionists.

The 1st Petitioner is of an opinion that the 1st and 2nd Respondents are exercising the rights and freedoms of assembly to subvert the Government, not to hold a peaceful gathering, and to debar the Executive Branch or the Government from exercising the executive power, constituting an offence under the Criminal Code, section 11, in consequence. The said acts of the two Respondents are thus regarded as the exercise of the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State under the Constitution. Being aware that the two Respondents scheduled another rally to be held at the end of November 2012, the 1st Petitioner hereby exercised the right under the Constitution, section 68, paragraph 2, to request the Constitutional Court to order both Respondents and other relevant persons to discontinue their next rally and, if any political party is involved, to render an injunction or order under the Constitution, section 68, paragraphs 3 and 4.

The second petition (Case No. 58/2555)

The 1st Respondent is the President of the Siam Protection Organisation. Its boards and members are from various sectors, including the Multicoloured Shirts and the People's Alliance for Democracy, which have campaigned against Police Lieutenant Colonel Thaksin Shinawatra by causing a wave of mass rallies leading to the coup d'état of 19 September 2006. On 28 October 2012, the 1st Respondent held the first rally at the Royal Turf Club of Thailand under His Majesty's Patronage, with a view to subverting the Government. In defying and deposing the Government, the 1st Respondent threatened to exercise forcible violence, persuaded and incited the public to partake in the rally and to denounce the Government for the false charges of allowing the monarchy to be violated, being a puppet of Police Lieutenant Colonel Thaksin Shinawatra, and committing corruption. The 1st Respondent desired to overthrow the Government elected under the democratic regime with the King as Head of State, by using the forces of mass rallies to impose challenge and pressure on the Government led by Yingluck Shinawatra, the current Prime Minister. It could now be taken that the 1st Respondent and the Siam Protection Organisation have committed the offences of insurrection under the Criminal Code, sections 113 and 114. Moreover, on 10 November 2012, the 1st Respondent and the Siam Protection Organisation planed to organise a mass rally from 24 to 25 November 2012 at the Equestrian Plaza. For the purpose of suspending and expelling the Government, the 1st Respondent incited and hired more than one million people to lay siege to the Government House. The 1st Respondent has also proposed to isolate or freeze the Nation for five years, during which the administrative councils, comprising of thirty one ministers and two hundred and fifty lawgivers, will be formed without any politician.

In order to prevent possible unrest which would ensue from the acts of the 1st Respondent and would fan the flames of the situation, the 2nd Petitioner hereby requested the Constitutional Court to order the 1st Respondent and the Siam Protection Organisation to discontinue their activities pursuant to the Constitution, section 68, and to hold an emergency hearing and indicate certain provisional measures, including a requirement that the 1st Respondent and the Siam Protection Organisation cancel their rally scheduled to be held from 24 to 25 November 2012, until any decision is rendered.

The third petition (Case No. 59/2555):

The 3rd Petitioner learnt that a rally was held at the Royal Turf Club of Thailand under His Majesty's Patronage on 28 October 2012. It was the 1st Respondent and his adherents who jointly organise the rally with the express intention to undermine the democratic regime of government with the King as Head of State. On 10 November 2012, they also held a press conference at the Auditorium of the Royal Turf Club of Thailand under His Majesty's Patronage, where they gave information to all mass media that another rally will take place at the Equestrian Plaza from 09:01 hours of 24 November 2012. As they wish to topple the Government which is led by Yingluck Shinawatra as Prime Minister and is elected by the people, it could clearly be understood that their intention is to abolish the democratic regime of government with the King as Head of State. Being aware of the said acts, the 3rd Petitioner hereby exercised his right under the Constitution, section 68, paragraph 2, to request the Constitutional Court to order the 1st Respondent and his adherents to discontinue their rally which is scheduled to be held at the Equestrian Plaza from 09:01 hours of 24 November 2012.

Having viewed the three petitions, the Constitutional Court found that the facts stated therein do not yet suffice to adopt an order as to whether the three petitions are admissible. Seeing necessary to examine the relevant parties for additional facts, the Constitutional Court summoned the 1st Respondent, who is the President of the Siam Protection Organisation, and Air Marshal Watchara Ritthakhani, the Spokesperson of the Siam Protection Organisation, to appear and interrogated them.

On the examination day, the 1st Respondent submitted the reply of 22 November 2012, stating the following. The rallies are in line with the Constitution, sections 3 and 63, as well as the duties of the Thai people under sections 70 and 71 in every respect. Nothing in the rallies is intended to undermine the democratic regime of government with the King as Head of State or to acquire the national government power by the means not recognised by the Constitution. The rally to be held on 24 November 2012 will be calm, unarmed and peaceful. The 1st Respondent has, by letters, communicated the organisation of the rally to the Prime Minister, the Minister of Interior, the Commissioner General of the National Police, the President of the Lawyers Council, the National Human Rights Commission, and, by faxes and electronic mails, to all embassies. This rally is truly the exercise of the freedom of assembly and the duties of the Thai people as recognised by the Constitution.

In the course of the examination, Prayong Chaiyasi, representative of the 1st Respondent and of Air Marshal Watchara Ritthakhani, gave the following answer. It is not the idea of the 1st Respondent to isolate or freeze Thailand. In reality, the 1st Respondent proposed to freeze wicked and sinful politicians for five years, during which many reforms will be launched to prevent them from seizing or exploiting the Nation. The idea of establishing a popular council of revolutionists is derived from the rally and indicates that some people disagree with the Government, despite it being formed by the political parties elected by the citizens.

Having reviewed the petitions and their supplementary documents and having conducted the examination, the Constitutional Court found that the obtained facts now suffice to adopt an order governing the three petitions.

The preliminary issue the Constitutional Court needs to handle is whether or not the petitions of the three Petitioners meet the criteria of the Constitution, section 68.

The Constitution, section 68, paragraph 1, prescribes that "No person may exercise the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State under this Constitution or to acquire the national government power by the means not recognised by this Constitution". And paragraph 2 reads: "Where any person or political party commits the act forbidden by paragraph 1, a person aware of the act shall be entitled to refer the matter to the Attorney General for investigation and request the Constitutional Court to order the discontinuation of the act, without prejudice to the criminal prosecutions against the actor".

After due consideration, the Constitutional Court entertains the following opinion: In the course of the examination, the representative of the 1st Respondent and of Air Marshal Watchara Ritthakhani insisted that the 1st Respondent does not have the idea of isolating or freezing the Nation, but the idea of freezing the wicked and sinful politicians for five years, so as to prevent them from exploiting the Nation. Obtained also is the information that the rally of 24 November 2012 is to express the power to remove the Government, not to unlawfully gain the state power, and will be terminated if the removal is not successful. Notwithstanding the situations described in the petitions, it could not yet be reasonably seen that the constitutional rights and freedoms are to be exercised for the purpose of undermining the democratic regime of government with the King as Head of State under the Constitution or acquiring the national government power by the means not constitutionally recognised, as proscribed by the Constitution, section 68, paragraph 1.

For these reasons, the Constitutional Court does hereby refuse to address the three petitions.

Wasan Soypisudh

President of the Constitutional Court

Jaran Pukditanakul

Judge of the Constitutional Court

Charoon Intachan

Judge of the Constitutional Court

Chalermpon Ake-uru

Judge of the Constitutional Court

Nurak Marpraneet

Judge of the Constitutional Court

Suphot Khaimuk

Judge of the Constitutional Court

Udomsak Nitimontree

Judge of the Constitutional Court

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