The Ombudsman will petition the Constitutional Court to seek a ruling on whether the Referendum Act's Section 61 violates the interim charter's clause on freedom of expression.
Raksagecha Chaechai, secretary-general of the Office of the Ombudsman, said the three Ombudsmen of Thailand voted unanimously Wednesday to forward the matter to the court by the end of this week.
The move followed a complaint filed by the Internet Dialogue on Law Reform (iLaw) group and academics last month, stating that certain paragraphs of the law's Section 61 restricted citizens' right to exercise their freedom of expression ahead of the referendum.
Section 61 says that text, pictures or sounds that are "inconsistent with the truth, or are violent, aggressive, rude, inciting or threatening and aimed at preventing a voter from casting a ballot or vote in any direction shall be considered as disrupting the referendum process". Individuals who express strong opinions for or against the draft charter could face a jail term of up to 10 years and/or a maximum fine of 200,000 baht.
According to legal experts from the iLaw network, Section 61 infringes on people's rights and freedoms. It could also be widely interpreted by officers and judges, due to the lack of definition of what constitutes "violent", "aggressive" or "inciting" words or behaviour, they argued.
The office agreed on the lack of clarity regarding the terms used in Section 61, said Mr Raksagecha, adding that people giving information regarding the draft's contents could easily be accused of campaigning or incitement. The court will rule if individuals prosecuted under the act are innocent or guilty, but they may see their rights violated at earlier stages of the judicial process.
The court will only have to rule on the constitutionality of Section 61's second paragraph, he said. The Referendum Act, passed last April 22, will remain in use and the referendum process therefore will not be disrupted.
Mr Raksagecha added that the Ombudsman did not ask the court to review the heavy penalties under Section 61's third and fourth paragraphs, as those penalties will be handed out at the discretion of judges ruling on such cases.
Pleased with the Ombudsman's decision, Jon Ungpakorn, iLaw's director, hoped the court will hand down a ruling quickly, as there are only two months before the referendum date in early July. The matter should be urgently considered as citizens see their rights and freedoms being restricted.
"People do not dare to express their opinions on the draft charter, as they are afraid of being prosecuted. Today, even wearing a T-shirt with messages in favour of, or against the draft could lead to 10 years' imprisonment," he said.
Meanwhile, National Legislative Assembly (NLA) member Wallop Tangkana-nurak said the Ombudsmen must not have any "hidden agenda", and are viewed by some political groups as potentially wanting to abort the Aug 7 referendum.
Section 7 of the Referendum Act grants persons the freedom to express opinions of the referendum in an honest and lawful manner, but Mr Wallop said Section 61 may cause various interpretations of improper acts so the Ombudsman wants the court to make clear what are considered as disruptions to the referendum.
If the court eventually rules Section 61 is unconstitutional, it will probably order "the troubled portion be removed" from the act without any impact on other sections, said NLA member Thani Onlaiat, who once served on a panel to draft the Referendum Act.