Cases, Other cases, Public Assembly Act, Section 116

NLA Sit-In

Latest Update: 23/03/2017

Defendant

Jon Ungphakorn and Others

Case Status

Judgment / End of trial

Case Started

2010

Complainant / Plaintiff

The Secretariat of the House of Representatives is the 1st injured person and The Secretariat of the Senate is the 2nd injured person for the trespass charge. Deputy Commander of Metropolitan Police is the head of inquiry officers working group. The public prosecutor of the office of Attorney General is the plaintiff of this case.

29 November 2007, A demonstration was held outside the parliament building, demanding that the NLA immediately abandoned consideration of the 11 bills. Over 100 demonstrators climbed over the fence, enter the lobby and sat down in front of the meeting chamber. 10 leaders were charged with collaborating to incite the public to violate the laws.

Crimincal Court punished the defendants for gathering against public order and trspass. The Court of Appeal dismissed all charges.

Defendant Background

1. Mr. Jon Ungphakorn, NGO and human rights activist. He is a founder of Aid Access foundation, iLaw and Prachatai online newspaper. He was elected to the Senate with the support of the NGO and HIV/AIDS communities.

In 2005 he was awarded with the Magsaysay Award for Governmental Services, exactly 40 years after his father won the award.

2. Mr. Sawit Keaw-wan, is a leader of The State Railway workers’ Union of Thailand (SRUT). He used to be one leader of the People's Alliance for Democracy (PAD), or yellow-shirt movement, and a Secretariat of State Enterprises workers’ Relation confederation (SERC)

3.Mr. Sirichai Maingam, state enterprise union leader. He used to protest against the privatisation of Electricity Generating Authority of Thailand which later the Administrative Court ruled that it has to be state-own enterprise. He was also a former leader of People's Alliance for Democracy (PAD), or yellow-shirt movement.

4.Mr. Pichit Chaimongkol, NGO and political activist. He is a former secretary of Student Federation of Thailand in 2003. He worked with Friends of People group who supported movements of disadvantaged groups and other social activities.

5.Mr. Anirut Khaosanit, farmers activist. He was one of the founder of Petchaburi Farmer Rehalibitation group which worked to solve the problems of farmers' dept.

6.Mr. Nasser Yeemha, NGO and political activist. He was a head of office of Thai Social Democratic Party. He worked with Friends of People group and gave advise to people who got effect from government's development project. He also worked on farmer's dept issue.

7.Mr. Amnat Palamee, state enterprise union leader.

8.Mr. Pairoj Polpetch, NGO and human rights activist. He is a committee of Law Reform Commission of Thailand. He was a president of NGO Coordinating Committee on Development and a president of Union For Civil Liberty (UCL).

9.Ms. Saree Ongsomwang, NGO and consumer rights activist. She is now a scretaritat of Foundation for Consumers.

10. Ms. Supinya Klangnarong, freedom of Expression and media reform activist. She uesd to work for Campaign for Popular Media Reform and now she is a member of National Broadcasting and Telecommunication Commission (NBTC).

Offense

Article 116 Criminal Code, Article 215 Criminal Code, Others

trespass

Allegation

The Charges are; collaborating to incite the public to violate the law through speech, writing, or other means outside the boundaries of constitutional rights or legitimate freedom of expression (Section 116 of the Criminal Code – maximum penalty of 7 years imprisonment); gathering in a group of 10 or more people, in the capacity of leaders or commanders, to threaten or to carry out an act of violence or to act in a way which causes a public disturbance (Section 215 of the Criminal Code – maximum penalty of 5 years imprisonment and/or fine of up to Baht 10,000); trespass with use of violence (Sections 362, 364, and 365 of the Criminal Code – maximum penalties of 5 years imprisonment and/or fines of up to Baht 10,000 under both Sections 362 and 364 as qualified under Section 365)

Circumstance of Arrest

22 January 2008, Jon Unghakorn who was a president of NGO Coordinating Committee and the other 9 defendants reported to the Metropolitan Police under the summon warrant to acknowledge the charges and be interrogated. All accused denied that they did not commit any offense against the law.

On that day, there were a lot of people gathered to show support those 10 accused infront of Metropolitan Police office. People also hi-parked on the amplifier truck while the 150 officers prepared to maintain peace and order.

Trial Observation

No information

Black Case

อ.4383/2553

Court

Supreme Court

Additional Info

While the Supreme Court Verdict was read, Spinya Klangnarong, the 10th defendant, was serving as The National Broadcasting and Telecommunication Commissioner (NBTC). Accordind to Section 7 of the NBTC Act, the qualification of the commissioner must free from any final court verdict of guilty. The verdict of this case made her disqualify for the position.

Reference

No information

Following the military coup on 19 September 2006 and the suspension of the 1997 Constitution, the military council formed by the coup leaders established a “National Legislative Assembly” (NLA) to act as an interim unicameral legislature for enacting legislation until parliamentary elections were held under a new constitution. All members of the NLA were selected by the military council.

After the promulgation of the 2007 constitution on 24 August 2007, the NLA continued to function as the legislature, and during the last two months before the general parliamentary election of 23 December 2007, the NLA rushed through the passage of a number of extremely controversial laws affecting human rights, civil liberties, community rights, and social justice. This was done despite strong opposition and protests by many civil society groups. The most controversial of these was Internal Security Act, a law demanded by the military to allow them to hold special powers to deal with national security issues after the return to elected civilian government. Other controversial laws passing through the NLA included legislation on privatisation of state universities, water management, and state enterprises.

On 11-12 September 2007 the Thai NGO Coordinating Committee (NGO-COD) with Jon Ungphakorn (1st defendant) serving as Chair and Pairoj Polpetch (8th defendant) as Vice-Chair held a consultation involving a number of civil society networks and labour union leaders which ended with a public statement and press conference calling on the NLA to abandon consideration of 11 controversial bills considered to violate the rights, freedoms, and welfare of the public according to the 2007 Constitution.

On 26 September 2007, a delegation from NGO-COD and the Confederation of State Enterprise Labour Unions submitted an open letter to the NLA Speaker, Mr. Meechai Ruchupan at the parliament building.

On 29 November 2007, a mass demonstration was held outside the parliament building and grounds, demanding that the NLA immediately abandon consideration of the 11 controversial bills, requesting members of the NLA to consider resigning their office , and asking members of the public to sign a petition for the NLA to cease all legislative activities in view of the coming elections for a democratic parliament.

On 12 December 2007 A mass demonstration was held outside the parliament building and grounds, involving well over one thousand demonstrators. At around 11.00 a.m. over 100 demonstrators climbed over the metal fence surrounding the parliament building using make-shift ladders to enter the grounds of parliament. Then, around 50-60 demonstrators were able to push their way past parliamentary guards to enter the lobby in front of the NLA meeting chamber where the NLA was in session. They then sat down peacefully in concentric circles on the lobby floor. Negotiations with some members of the NLA and with a high-ranking police official ensued, until at around 12.00 noon the demonstrators were informed that the NLA meeting had been adjourned. The demonstrators then left the parliament building and grounds, returning to join the demonstrations outside the premises.

22 January 2008

The ten defendants were summoned by police to acknowledge a number of charges against them. Later prosecutors asked police to investigate further, more serious charges which were then brought against the defendants, while less serious charges such as using a loudspeaker without prior permission were dropped.

30 December 2010

The prosecution was submitted thr case to the Criminal Court. All defendants were present at the Court with supporters and denied all charges. All the defendants were allowed to post bail by the court.

21 February 2012

The trial of prosecution withnesses examination started. The prosecutor brought 24 witnesses to testify to the court including members of National Legislative Assembly (NLA), Senate officers, security officers, police officers. The schedule for prosecution witness examination is between 21-24, 28-29 February and 1-2, 13-16 March 2012. But the trial took very long and postponed to 22 January to 8 February 2013.

19 February 2013

The trial of defendant's witness examination started. The defense lawyer brought 24 witnesses to testify to the court including 10 defendants, law and political scince acdemics, journalists who are at the scence, National Human Rights Commissioner, member of National Legislative Assembly and human rights activists. The schedule for defendant's witness examination is between 19 February to 14 March 2015.

28 March 2013

Criminal Court read the verdict. The Court ruled that the 1st, 4th, 7th and 8th defendant was guilty under Criminal Code Section 215 paragraph 3 as a leader of the gathering, the 5th, 6th, 9th and 10th defendant was guilty under Criminal Code Section 215 paragraph 1. The 1st-6th and 8th-10th defendant was guilty of trespass under Criminal Code Section 362, 364 and 365. The 1st-4th, 7th and 8th was sentenced under Section 215 paragraph 3 for 2 years imprisonment and 9,000 baht fine. The 5th, 6th, 9th and 10th defendant was sentenced under Section 365 (1) (2) for 1 year imprisoment and 9,000 baht fine. The sedition charge was dismissed.

Due to the ten defendants' testimony benefit the trial the penalty was reduced for one third. The ten defendants have never commited any crime before and commit this case with an intention to protect the benefit of the nation. The penalty, therefore, was suspended for 2 years.

26 November 2014

The Court of Appeal reversed the verdict of Criminal Court and order to dismiss all charges for the 10 defendants.

15 March 2017

The Criminal Court scheduled to read the court’s verdict at 9.30 am. All 10 defendants were present before the court with their defense lawyers, while 3 prosecutors were present to hear the Supreme Court’s verdict. In addition, among those present in the court included around 50 observers and journalists to monitor and report the court proceedings.

The Supreme Court found defendants guilty under the charge of assembling to cause disorder in society trespassing but issued the punishment of a ‘suspended sentence’. The determination of the exact punishment is suspended for 2 years pending probation.

Verdict

The Summary of the Court of First Instance’s Verdict

The facts of the case was that on 19 September 2006 the Council for Democratic Reform under the Constitutional Monarchy (CDR) successfully staged a coup d'état. Later on 1 October 2006 the 2006 interim constitution of Thailand was promulgated. It constituted the National Legislative Assembly (NLA) to perform legislature power. The NLA could enact laws as the House of the Representatives and the Senate did. On 11 October 2006 members of NLA were appointed. On 24 August 2007 the 2007 constitution of Thailand was in effect. The Provision Clause stated that the NLA shall perform the duties of the House of the Representatives and the Senate until the first sitting of the National Assembly.

12 December 2007, a group of about 500 people of NGO Coordinating Committee on Development (NGO-COD) gathered outside the parliament building to protest against the consideration of the 11 bills. A six-wheeled truck equipped with an amplifier was used as a stage. Representatives of different groups took turn to made statements. The 7th defendant was the moderator, presenting the representatives. The 1st – 5th, 9th and 10th defendants made speeches. Around 11.00 am, a bamboo ladder was brought in and metal was used to cover the sharp fence. Around 100 demonstrators crossed over the fence. Among those were the 1st – 6th and 8th – 10th defendants. They pushed the glass door to enter the lobby of the parliament building. The 1st – 6th and 8th – 9th defendants entered the building too. The 10th did not. The 4th defendant with a loudspeaker shouted “NLA”, and the demonstrators replied “Get Out!”. The chanting repeated many times. Pol. Lt. Gen. Aswin Kwanmuang came to negotiate with the 1st and 8th defendants. Then Meechai Ruchuphan called off the meeting.

The judges considered an offense under the Criminal Code, Section 116. The plaintiff presented that all ten defendants participated in the demonstration. There were speakers on the stage. There were statements made against NLA. Some statements said that NLA was dissolved. Some demonstrators peacefully help up messages that read “Close Down NLA”. Though some statements were directly against NLA, but there were considered as freedom of assembly and freedom of expression under the Constitution. No witnesses of the plaintiff could confirm that the defendants were to incite or to order the demonstrators to climb over the fence. Although the 7th defendant announced that “the officials invited Thai citizens, the owners of the parliament and the taxpayers, to visit their workplace”, but it was said after the demonstrators had climbed over. So it was not the direct cause. The plaintiff could not prove whether all ten defendants were involved in preparing the bamboo ladder and the metal used for covering the fence. It was an unexpected event, and was subject to each of the demonstrators. This is because some of the demonstrators did not climb over. All ten defendants were found not guilty of the charge.

For the offense of gathering which causes a public disturbance in the capacity of leaders, and trespass with use of violence, according to Section 215 (3) and Section 365 (1) (2), the plaintiff submitted photographic evidence. The pictures were the demonstrators chained up the door handles, the demonstrators running to the glass door, pushed and pulled the glass door against the security guards. The plaintiff’s witness who was the security guards of the parliament building were brought in to testify. Their testimony was reasonable and complied with the pictures. It was believed to be true.

Even though the demonstration was exercise of freedom of assembly under the Section 63 of the Constitution, it still must be under the laws, not violate others’ rights, and not against good morals. The demonstrators don't have the absolute rights to do anything against the law. They had to remain peaceful, eapecially at the parliament building, an official place. It was where law being passed and a workplace of legislative power, which was one of the three branches of state soverign power that should be upheld respectfully. Even though there was no violent confrontation after all, but climbing, pushing and pulling, and sitting in the building. It was therefore obvious that this caused a public disturbance. Pushing and pulling the door was also an act of violence.

Entering an official place, such as the parliament building, required permission, ID card exchanged for a visitor badge and displaying the badge were needed. All ten defendants’ actions violated the right to property of the Secretariat of the Senate and of the Secretariat of the House of Representatives. First the demonstration was peaceful. Once it became chaotic, it was no longer a peaceful demonstration without arms which was preotected by the Constitution. It was an act of exercise their rights that violated others’ rights. All ten defendants took part in the demonstration. They were found guilty of gathering and carrying out an act of violence or to act in a way which causes a public disturbance, under Section 215.

The 1st defendant accepted that he was the leader to make speeches. He told the demonstrators to sit down. He held a news briefing. He was the representative to negotiate as well as made a victory speech.

The 2nd defendant with a loudspeaker shouted “NLA”, and the demonstrators replied “Get Out!”. He also took part in the news briefing and made long speeches on the stage.

The 3rd defendant was another speaker. He was asked to oversee the order of the demonstrators. He also told the demonstrators to sit down and made a victory speech.

The 4th defendant spoke with a loudspeaker and told the demonstrators to line up and walk out.

The 7th defendant was another speaker, announcing the purposes of the demonstration. He was a moderator, presenting the speakers. When there was no one to speak, he would lead the demonstrators to sing songs and to do some activities.

The 8th defendant was another one who told the demonstrators to sit down. He was also a negotiator and joined the news briefing.

Although all ten defendants denied being the leaders, but the actions of the 1st – 4th, 7th and 8th were more than ordinary demonstrators. It was considered as they were leaders who gave commands under Section 215, paragraph 3. They climbed over and sat in the lobby. Their action was considered as they joined other demonstrators in violating right to own property under Section 362 and 364. When violence was carried out, and more than 100 demonstrators climbed over the fence, this was considered as trespassing with an act of violence and collaborating to commit a crime with more than 2 people.

The defendants argued that it was necessary for them to hand over their letter at the parliament building. They tried everything to have their voice heard. If the bills were passed, democracy would be affected. The judges considered that for each bill to be passed, there would be those who were in favour and were against it. To demonstrate was enough for the NLA and the public to acknowledge their concerns. It was each NLA members’ right to whether agree or not. Exercising the demonstrators’ right should have not violated others’ right. Gathering in front of the parliament building was enough. There was no reason to hand over their letter in front of the chamber. Climbing over to meet with NLA members and to make them agree with their opinion was an abuse of right to assemble peacefully.

There was no ground that the NLA would overthrow democracy. If the defendants understood that the NLA would do so, then they should have sought legal process and not by using forces and demonstration arbitrarily. The defendants argued that the NLA’s work were illegitimate, the judges considered that at the time there was no election. Then the Provisional Clause of the Constitution stated that they should perform the legislative power. For other issues such as the NLA’s legitimacy and the quorum, the constitutional court had the obligation to consider them. In the past the constitutional court voided many bills approved by the NLA, because of quorum issues. It was no reasonable ground for the defendants to enter the building. All ten defendants were found guilty.

The 1st – 4th, 7th and 8th defendants were found guilty under Criminal Code Section 215, paragraph 3. The 5th, 6th, 9th, and 10th were found guilty under Criminal Code Section 215, paragraph 1. The 1st – 6th, and 8th – 10th were found guilty under Criminal Code Section 362, 364, and 365. The 1st – 4th, 7th, and 8th, committed the same act violating several provisions, they were sentenced by the maximum punishment under Section 215, paragraph 3, which was 2 years imprisonment and 9,000 baht fine. The 5th, 6th, 9th and 10th were the same act violating several provisions, they were sentenced by the maximum punishment under Section 365 (1) and (2), which was 1 year imprisonment and 9,000 baht fine.

Due to the ten defendants' testimony benefit the trial the penalty was reduced for one third. The 1st – 4th, 7th and 8th’s sentences were reduced to 1 year and 4 months imprisonment and 6,000 baht fine. The 5th, 6th, 9th and 10th’s sentences were reduced to 8 months imprisonment and 6,000 baht fine.

The ten defendants have never committed any crime before and committed this case with an intention to protect the benefit of the nation. The penalty, therefore, was suspended for 2 years.

The Summary of the Court of Appeal’s Verdict

The case occurred after Council for Democratic Reform under the Constitutional Monarchy (CDR) successfully staged a coup d'état. The CDR appointed the National Legislative Assembly (NLA) to consider and pass bills. Before the general election to be held, the NLA was still in session. The ten defendants and demonstrators gathered in front of the parliament building. They wanted to express their concerns regarding the bills being passed under urgency. They suggested that the elected members should be the ones to consider passing bills. They also wanted the NLA to suspend passing 11 bills. The demonstration went on peacefully and without arms. It was protected under the Constitution.

Then the situation was out of control when the gates were shut, and the demonstrators were not allowed to get it. When they could not express their concerns, some of them climbed over the fence and sat down on the lobby floor. Some of them still stayed outside. Pol. Lt. Gen. Aswin Kwanmuang came to negotiate and accepted complaint from the demonstrators. He would pass it on to those concerned. The President of the NLA called off the meeting. The demonstrators left the building in order. There was no damage made to the building.

For the charge for gathering of more than ten people to carry out an act of violence or to act in a way which causes a public disturbance, the judges ruled that defendants must have intended to cause such disturbance. But their special intention for the demonstration was to protest against the NLA’s work when passing bills under urgency, which were important and related to the people’s rights. Their action was not the ground to cause a public disturbance. Therefore it was not considered a wrongdoing.

After the judge ruled that the ten defendants did not intent to cause a public disturbance, there was no need to consider whether the ten defendants were leaders or commanders.

For the charge of trespassing, although the demonstrators did not enter the parliament building with the proper security procedure, the judges ruled that entering the building to demand what was rightful according to the Constitution, was not to take over the building or to disturb the peacful possession of the owner of building. The officials and the NLA members were still able to perform their duties normally. They did not even drive out the demonstrators. When the meeting adjourned, the demonstrators simply walked out by themselves. Their action was not considered as trespassing.

The summary of Supreme Court's verdict

The Supreme Court initiated proceedings by passing judgement on the validity of the defense lawyers’ arguments that the plaintiff illegally submitted the case to the Supreme Court. The defendants base this argument on the reason that the individual who submitted the case to the Supreme Court and asked the Court for an extension period to submit the case was not the prosecutor. While the Supreme Court considered that even thought the person who wrote the request are not the person who signed to acknowledge the court order and not the prosecutor in this case (the person who did submit the case was a legal clerk), it judged that it does not require any specific prosecutor to submit the case. Thus, the Supreme Court rejects the defense’s argument for consideration.

In establishing whether the defendants committed the crime, the Supreme Court disagreed with the prior verdict of the Court of Appeal (the Court of Appeal dismissed the case on 26 November 2014). The Supreme Court followed the judgement of the Court of First Instance (the latter convicted the defendants on 28 March 2013).

In considering the facts of the case, the Supreme Court observes that all 10 defendants and other demonstrators gathered during the early morning of 12 December 2007 at the parliament building to demand the NLA to not pass 11 draft laws that the demonstrators disagreed with.

The defendants delivered speeches on the stage to the demonstrators and encouraged them to enter the parliament building. When the officers closed the entrance gate to the building, the demonstrators covered the fence surrounding the building with a metal sheet, and then used ladders to scale the perimeter of the fence. These facts show that the defendants had planned to enter the parliament building. The witnesses from the prosecutor testified that there were demonstrators who rushed to the glass door and forcibly opened the doors before entering.

Even though Section 63 of the 2007 constitution guarantees the right of peaceful assembly without arms, the assembly must not violate other peoples’ rights under Section 28 paragraph 1 of the constitution. The demonstrators chained the parliament gate with a lock and used ladders to scale the perimeter of the fence. It is a violation of the parliament’s regulation about how to enter the parliament building. All the defendants did not attempt to stop the demonstrators from scaling the fence, but instead joined the demonstrators in scaling the fence and entering the chamber. Thus, from these facts, the court deems that the defendants had an intention to disturb the peaceful possession of other peoples’ property without proper justification. The court stated that the defendants and demonstrators did not have to forcibly enter the parliament building to express their disagreement with the bills. The act of the defendants was judged to possess foreseeability to cause disorder in society.

Thus, the act of the defendants fall under the elements of crime under Section 215 of the Criminal Code (gathering to cause public disorder) and Section 365 (1) (trespass by doing harm) and (2) (trespass by 2 people or more). The latter conviction was judged based on 1 officer’s testimony that he was kicked by the demonstrators.

On judging the issue whether the defendants were the leaders of the demonstration, or whether they had the duty to command the gathering, the court observes that the first defendant was responsible for finding speakers. The court also observed that when the demonstrators climbed over the fence, the first defendant felt worried and he climbed over the fence to look after the demonstrators.

The eighth defendant told the demonstrators to sit down and join the negotiation process and he submitted the documents to the police negotiator. The second defendant shouted “NLA, get out”. When the demonstrators moved out the parliament building, the second defendant gave an interview to the media. The third defendant was asked by the demonstrators to come to maintain order in the demonstration. In addition, when the demonstrators exited the parliament building, the 3rd defendant announced on a stage (on a six-wheel truck) that the demonstration had achieved its objectives.

The fourth defendant used a megaphone to relay to the demonstrators to exit the parliament building in an orderly fashion. The seventh defendant acted as the moderator on the stage.

Based on these facts, as per Section 215 paragraph 3 of the Criminal Code, the Supreme Court ruled that the first to fourth defendants and the seventh and eighth defendants are found guilty as the leader, or person who has duty to command the assembly that caused public disorder.

In addition, the Supreme Court found the fifth, sixth, ninth and tenth defendant guilty under section 215 paragraph 1 of the Criminal Code for gathering to cause public disorder. The first to the sixth defendants and the eighth to the tenth defendants are found guilty of trespass by doing harmful acts under Section 365 (1) and (2). The act of the defendants is considered the same act that violates several provisions of the law.

The Supreme Court, therefore, reversed the verdict of the Court of Appeal. Because the defendants had no prior criminal conviction, and after the Court factored the defendants’ age, occupation, education, and the Supreme Court found that the circumstance of the case is not severe, and thus issued the punishment of a suspended sentence with a probation of 2 years.

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