Open Letter on Thailand from Human Rights and Civil Society Groups

Mr. Josep Borell Fontelles
EU High Representative for Foreign Affairs and Security Policy / Vice-President European External Action Service (EEAS)

March 6, 2023

Re: Upcoming Elections in Thailand

Dear Mr. Fontelles,

This May, the people of Thailand will vote in elections meant to choose a new parliament and select a prime minister to serve as Thailand’s next head of government. These processes, however, are occurring within political, constitutional, and legal frameworks that do not make free and fair elections possible. We are deeply concerned that the elections could result in a disputed outcome and prolonged political instability. Thailand’s security forces have a record of responding to protests, peaceful and otherwise, with excessive force.

We, the undersigned human rights and civil society groups, are writing to urge the European Union, working with other like-minded governments, to voice concerns about these risks with the current government of Thailand, including Prime Minister Gen. Prayuth Chan-ocha and civilian and military officials, and urge them to take steps to address them. It is vital that the international community, and the EU in particular as a close ally and growing trade partner, speak directly about the consequences of violating the rights and freedoms of the Thai people.

Thailand’s current constitution was written by the Thai military junta, the National Council for Peace and Order (NCPO), created by the military after the 2014 coup, and led by Army Commander-in-Chief Prayuth. Its adoption was the result of a referendum, held under military rule in August 2016, marred by widespread violations of basic rights to freedom of expression, association, and peaceful assembly. In the lead-up to the referendum, the NCPO curtailed basic political freedoms, censored the media, outlawed public gatherings of more than five people, and prosecuted critics of the draft, among other abuses.

The resulting constitution entrenched military power at the expense of civilian political control. Under its provisions, the NCPO gave itself the power to choose members of Thailand’s Election Commission and Constitutional Court, the two main mechanisms that respectively organize and legitimize elections. It obligated governments and members of parliament to adhere to a “20-year reform plan” and made constitutional amendments impossible without military approval. The constitution also created a fundamentally undemocratic parliamentary system, providing for a 500-member lower house of elected members while reserving 250 unelected seats in the Senate for NCPO-appointed senators, including the top leadership of the military and police.

As a result, the Thai military retains the power to form a government and appoint a prime minister of its choosing, as it did after the last parliamentary elections in 2019. In the May elections, as in 2019, the Thai military and parties it controls will only need to obtain 126 of the 500 seats in the lower house to join the 250 military-appointed Senate seats to form a government and select a prime minister. By contrast, non-military political parties will need to secure almost three times as many votes—376 seats of the 500 democratically contested seats—to form a government.

In addition to these structural flaws, Thailand’s political atmosphere remains steeped in intimidation and censorship, as it has been since the 2014 coup. Thai authorities since 2020 have criminally charged over 1,800 pro-democracy activists, critics, and opposition supporters, largely for expressing their opinions or participating in peaceful political demonstrations. (Those charged include over 280 children, including 41 under 15 years of age.)

In 2020, the government dissolved and banned Thailand’s leading opposition political party, Future Forward, following a flawed legal process premised on spurious charges, which then led to widespread protests across the country. Authorities responded to these largely peaceful protests, and others since 2020, with intimidation tactics against protest leaders or participants, including surveillance, harassment, excessive use of force, and arbitrary arrests. In July 2022 it was revealed that Thai authorities used Pegasus spyware against at least 35 pro-democracy activists and critics of the government.

For most of the last three years, the Thai government has been operating under a “state of emergency” decree declared in March 2020, ostensibly in connection with the outbreak of Covid-19. The state of emergency, which was renewed 19 times, granted unchecked powers to authorities. Regulations issued under the decree were repeatedly used to investigate and prosecute pro-democracy advocates and censor online expression. Authorities ended the state of emergency late last year and repealed regulations issued under it, but hundreds of people remain under criminal charges and the atmosphere of intimidation persists.

These structural and procedural electoral flaws, and Thai authorities’ ongoing abuses and threats to opponents, have created enormous and almost insurmountable disadvantages to candidates and parties running in the election.

Nevertheless, opposition candidates and parties are choosing to work within the problematic system, aware of the challenges and risks that they face. The fact that they are still seeking to contest the military on its own terms, in this highly problematic political environment, should not be interpreted to mean that the electoral process should be considered free and fair. Nor does it mean that pro-democracy activists and opposition politicians believe governments and institutions abroad should remain quiet about the system’s flaws.

The EU and other like-minded governments should:

• Urge Thai authorities to remedy these structural and procedural problems with the upcoming electoral process, including by:

– Immediately and unconditionally releasing from detention and dropping charges against all political opposition members and supporters, human rights defenders, journalists, and pro-democracy activists arrested for exercising their fundamental rights and freedoms;

– Ending the harassment, intimidation, and persecution of those engaged in peaceful protests and civil and political activity more broadly;

– Ending censorship of political speech and criticism of the government or the political process in general, and allowing opposition parties and political leaders to carry out campaign activities without improper interference;

– Repealing or imposing moratoriums on laws and decrees that are being used to censor speech or other content related to the electoral process, including Thailand’s overbroad and vague lese majeste law, Computer Crimes Related Law, and Sedition Law; and

– Ensuring that the processing and tallying of votes on or after election day are conducted in a fair and transparent manner and that the Election Commission discloses vote tallies in polling station in a timely manner and allows observation of the vote counting process.

• Call on all Thai authorities, including the leadership of the Thai military, to pledge that military or other security forces will not circumvent democratic processes, will exercise restraint in handling protests, and will not use excessive force.

• Communicate to authorities that failing to address the structural and procedural flaws in the electoral process and other ongoing violations of the civil and political rights of the Thai people, or otherwise promoting an outcome that does not reflect the democratic will of the Thai electorate, will jeopardize the ability of outside governments to recognize the elections in May as free and fair.

• Communicate to Thai authorities that direct or indirect military intervention before, during, or after the general election will profoundly undermine bilateral relations between the European Union and Thailand, immediately result in new restrictions on security assistance to Thailand and impair EU-Thailand geopolitical and economic cooperation.

The people of Thailand and the European Union have shared commitments to human rights, and we are asking that you act and speak in the spirit of maintaining those commitments.

Thank you for your attention.

1. 112Watch
2. 24 June Democracy Group
3. ActLab Thailand
4. Association for Thai Democracy
5. Association of Labor for People’s Rights
6. Cafe Democracy
7. Campaign Committee for People’s Constitution (CCPC)
8. Constitution Advocacy Alliance (CALL)
9. Cross Cultural Foundation
10. Democracy Restoration Group
11. Dome Revolution Party
12. Free Gender TH
13. Friends Of the Homeless Group
14. Human Rights Watch
15. Internet Law Reform Dialogue (iLaw)
16. Kasetsart University Student Administrative Board Bangkhen Campus
17. Labor Network for People’s Rights
18. Manushya Foundation
19. Mokeluang Rimnam
20. Naruemit Pride
21. New Isan Movement
22. NGO Coordinating Committee
23. Student Government of Chulalongkorn University (SGCU)
24. Thai Lawyers for Human Rights (TLHR)
25. Thalufah
26. The Advocates for Sustainable Democracy in Asia and Beyond (ASDA)
27. The Worker Union of Spinning and Weaving Industries of Thailand
28. United Front of Thammasat and Demonstration
29. We Volunteer
30. We Watch
31. PermaTamas
32. Duayjai group, Pattani
33. Network of affected peoples from emergency law ( JASAD)
34. Patani Human rights Network (HAP)
35. Patani Woman Organization (Perwani)
36. Nusantara foundation for human rights and development
37. Justice for peace (JOP)
38. Muslim Attorney center foundation (MAC)
39. Project Sama2, Election monitoring team in Patani