THE REFERENDUM on the charter draft will be held as scheduled on August 7 irrespective of the Constitutional Court’s ruling on the Ombudsman’s petition whether Article 61 of the Public Referendum Act 2016 is unconstitutional, an Election Commission member said.

[Referendum explained]

The second paragraph of Article 61 prohibits dissemination of untrue, provocative, vulgar and intimidating messages through print and electronic media or other channels that could incite unrest.

The Ombudsman has ruled that the Article could be deemed in violation of the 2014 interim charter that guarantees freedom of expression.

The ruling came after former senator and director of Internet Law Reform Dialogue (iLaw), Jon Ungpakorn, filed a petition with the Ombudsman seeking a ruling on the legality of Article 61.

Election Commission member Somchai Srisuthiyakorn said the referendum would continue to be held on August 7 even if the court rules in support of the Ombudsman’s stance.

It is yet to be seen if the Constitutional Court would accept the petition from the Ombudsman to rule on the legality of Article 61, Somchai said.

He supported the Ombudsman’s move, saying it would provide clarity on the legal issue. The public referendum law is still effective. “The EC must uphold the law until the court rules otherwise,” he said.

Somchai, however, warned that even if the court ruled the second paragraph of Article 61 as unconstitutional, people who disseminate untrue, provocative, vulgar and intimidating messages through print and electronic media could face charges under the Computer Crime Act or the Printing Act.

National Legislative Assembly member Wallop Tangkananurak said although the legality issue has not yet been ruled on by the court, the process of holding the referendum would be carried out.

He added the EC still had power to check if anyone was committing offences as stipulated in the referendum law.

“Article 61 is completely valid. Anyone committing offences would face prosecution, and action may also be taken under the computer law,” he said.

He said if the court ruled in favour of the Ombudsman’s petition, only Article 61 would be invalid and not the whole Act.

Wallop dismissed speculation that the move to seek the Constitutional Court’s ruling was intended to scuttle the referendum, saying the Ombudsman had no ulterior motive but only wanted to prevent implementation problems.

Siam University law lecturer Ekachai Chainuvati saw two possibilities: either the referendum could be annulled if the Constitutional Court finds Article 61 violates the interim charter, rendering the whole bill illegitimate; or, only the article would be deleted without the rest of the bill being adversely affected.

Ekachai explained the Article would still be effective until the court decided otherwise.

“The obvious problem is nobody knows how to act with regards to the Article,” said Ekachai, who also signed the petition seeking the Constitutional Court’s ruling.

“The Ombudsman’s decision is also a big surpise to me,” he added “It’s like snow is falling in Bangkok.”

Charter writer spokesman Udom Ratamarit said if the court ruled that the paragraph was unconstitional, the dissemination and public relations on the charter draft might be adversely affected.