On 25 May 2014, three days after seizing the ruling power, the National Council for Peace and Order (NCPO) issued the Announcement no. 37/2557 to empower the Military Court to have jurisdiction of all offences against Articles 107-112 in Chapter about the Monarchy and Articles 113-118 about national security of the Penal Code and all other breaches of Orders and Announcements issued by the NCPO which take place when the Announcement is effective.
That the Military Court is designated to deal with cases concerning the monarchy and security is indicative to the NCPO’s effort in earnest to heavily and seriously suppress the commission of such offences and that the normal course of justice process fails to satisfy the NCPO’s need.
Though sharing some similarities with a civilian Court, the Military Court’s procedure is markedly different for it provides for no appeal to a court of higher instances. A one-court system, the final decision can be made by the trial court. Another concerning aspect is the independence of the judges as they all have been recruited from military personnel. Given the abnormal political situation at present, any defendants or political suspects would often feel insecure and fear the deprivation of their rights in the course of justice should they have to have their cases tried in the Military Court.
Offences to be tried in the Military Court must take place prior to 25 May 2014
Nevertheless, the NCPO Announcement no. 37/2557 stipulates clearly that any offences to be tried by the Military Court must take place “during the time the Announcement becomes effective”, meaning after 25 May 2014 onward and until the Announcement is revoked. Any offences that has taken place and has been completed prior to 25 May 2014, regardless of which categories they are, shall be tried in a normal civilian court.
This is consistent with a principle of criminal law whereby an emphasis is placed on the date the commission of the offence takes place. No ex-post facto laws or no laws can be promulgated later to criminalize any act that has taken place prior to the existence of the law and in this case any offences that have taken place prior to the designated time shall not be tried by the Military Court.
The interpretation applies in the case against Weerayuth, an anti-coup activist, who is charged with breaching the prohibition against the assembly of five people upwards invoking the NCPO Announcement no. 7/2557. Since his action took place on 23 May 2014, prior to the issuance of the NCPO Announcement no. 37/2557, his case was therefore tried in the Pathumwan Municipal Court, a civilian court and he was convicted to one month of imprisonment with probation.
Another similar case is Yutthasak, a taxi driver, who was reported by his passenger for violating Article 112. The offence took place on 28 January 2014, prior to the issuance of the Announcement no. 37/2557, and therefore his case was tried in the Criminal Court, a civilian court and he was convicted to two-year-and-six-month-imprisonment.
The Article 112 case against Tom Dundee has already been indicted in the Military Court
After the coup, the number of Article 112 cases has spiked. At least 14 persons have been arrested and held in custody and two other ongoing cases have been rushed in haste. One of them, Samak, has been held in custody by the order of the Military Court. He was accused of defacing a portrait of His Majesty the King in Chiang Rai Province. The incidence took place on 9 July 2014 and therefore falls under jurisdiction of the Military Court as per the Announcement no. 37/2557.
The inquiry officials have so far sought permission from a civilian court to hold all suspects in other cases in custody during the pretrial since the offences have been committed prior to the coup, except the case against Thanat, aka “Tom Dundee” who was accused of making a speech in violation of Article 112. The speech or the act took place since November 2013, but in June 2014, a video clip of his speech was uploaded to youtube. The officials determined that the act committed by Tom Dundee took place after 25 May 2014, or after the Announcement no. 37/2557 has become effective. Therefore, permission has been sought from the Military Court to hold him in custody and his lawyer has submitted an objection motion to the Military Court already.
Slowly, ongoing Article 112 cases in civilian court are being transferred to the Military Court.
For example, an anonymous man has been reported for posting online messages prior to the coup. He was arrested on 25 May 2014, the same day the Announcement no. 37/2557 was issued. Therefore, it would not be possible that he would have committed his crime after the Announcement became effective. And prior to that, the permission to hold him in custody had been sought from the Criminal Court. And by granting an extension of his custody, the Court affirmed its jurisdiction over the case. But on 19 August 2014, closer to the date the indictment has to be made, he was brought to the Military Court as the officials were now seeking permission from the Military Court to extend his custody. It was later reported that the civilian public prosecutor decided to not take this case anymore and he deemed the case does not fall under jurisdiction of a civilian court. As a result, the inquiry officials have to change their course of action and now sought permission from the Military Court to hold the man in custody as well as are preparing case file for indictment to be submitted by the judge advocate to the Military Court.
Later on 22 August 2014, Kathawuth who has been reported as a result of his internet radio clips was brought to the Military Court, even though the clips were produced and broadcast before 25 May 2014 and previously, the officials had always sought for permission from the Criminal Court to extend his pretrial custody. And by granting the extension of his custody, the Court affirmed its jurisdiction over the case. Then, closer to the date the indictment has to be made, he was brought to the Military Court as the officials were now seeking permission from the Military Court to extend his custody, similarly to the case of the anonymous man. The inquiry officials claimed the public prosecutors decided to not take this case citing that it was not under jurisdiction of a civilian court, but a military court.
This anonymous man and Kathawuth applied for bail with the Military Court to no avail. The Court claimed that while the bail was submitted, the inquiry officials were present in the courtroom and that the inquiry officials have indicated their objection to the bail citing high penalty rate of the charges. In addition, the Court claimed that after reviewing circumstances around the cases, it was deemed that a temporary release would become an obstacle or would disrupt the investigation or would lead to the tampering with evidence.
And then on 22 August 2014, it was reported that the anonymous man has already been indicted with the Military Court, and during the indictment, he was not brought from the prison to appear in the Court, different from the process conducted in a civilian court.
It is now interpreted that by posting an online message, one remains culpable to legal action forever.
In the custody petition submitted to the Military Court in the case against Kathawuth, the inquiry officials state that “The person has been held in custody by the inquiry officials for interrogation all along and he has been brought to the Criminal Court for extending his custody for seven times already. In this case, it was found that the offences were committed from 28 March 2014 to 27 May 2014, and they had to be dealt with by invoking the National Council for Peace and Order Announcement no. 37/2557 dated 25 May 2014 regarding “Offences under Jurisdiction of the Military Court”.
Basically, the officials now claim that the commission of the offences took place from 28 March 2014 to 27 May 2014 in order to time it beyond the date the Announcement was issued on 25 May 2014. The trick makes the case fall under jurisdiction of the Military Court. And by making such interpretation, it means that the culpability of online posting shall remain as long as the content is still available online. This kind of interpretation seems wrong.
The commission of an offence related to online posting should be completed the moment the post appears online. And the day the posting is made should be counted as a single day during which the commission of the offence takes place and it does not matter how long the content continues to appear online since it is a subsequent result of the commission of the offence. It is impossible to interpret the continuity of the time an online posting is made and extend it to several days.
If the interpretation is made correctly and the commission of the offence is regarded to have taken place only within a single day, then the offences allegedly committed by Kathawuth and the anonymous man should have taken prior to 25 May 2014 and do not fall under jurisdiction of the Military Court. It is believed that the inquiry officials in charge of the cases had been interpreting the law this way since the beginning and therefore had been seeking permission from the Criminal Court to extend their custodies. And the judges must have concurred with this interpretation and therefore have granted seven extensions of their custodies in a row.
Meanwhile, civilian public prosecutors, judge advocates and judges of the Military Court deem it possible to interpret that the cases fall under jurisdiction of the Military Court.
What will happen if Article 112 cases are tried in the Military Court?
Should we accept the interpretation regarding the day the commission of the offence takes place and the jurisdiction of the Military Court this way, it is likely that all ongoing Article 112 cases and other cases related to online posting, which used to be adjudicated by a civilian court, will now be transferred to and tried by the Military Court.
As far as we know, there are at least four cases including the cases against Apichart, Chaliaw, Thanet and a student from Mahanakhon Technology College which are involved with online posting, though there will be more similar cases in the future.
At present, there has been no verdict made by the Military Court to help us understand the way the hearings will be conducted, the Court’s interpretation and its conviction. It remains to be seen if the Military Court will adopt the same approach as a civilian court in their adjudication of Article 112 cases and other cases involving political belief.
Meanwhile, defendants who have found their cases transferred to the Military Court must not accept the way the law is interpreted and may feel insecure as far as the justice process is concerned. They shall be another group of people who have not been bestowed with “happiness” as yet.