Case

Subsequent to Gulf JP NS Co., Ltd. initializing their 1,600 Megawatts power plant project development, the second largest private-owned power plant of the country, in Nonggob Subdistrict, Nong Saeng District, Saraburi Province and in Nong Num Sai Subdistrict, Pa chi District, Phranakornsri, Ayutthaya Province.  The lands were bought since B.E. 2550, without the local communities’ acknowledgement.

 

When the villagers living around the area of the power plant location knew that there was a petition for a permission to operate a power plant in their area, they severely protested since their first awareness of the information in 2008.  The people thought that the power plant location was an unsuitable area since it’s a prosperous agricultural area, located in an irrigational zone, and close to the community.  Further, the mentioned area is in the process of being declared as Protected Rural and Agricultural Area pursuant to the City Planning Act, which would prohibit any power plant business in such an area.  If the power plant business is allowed to operate in the area, it will cause effects to the environment, jobs, health, and unavoidably be inconsistent with the Saraburi City Plan.  In addition, the project’s operation by the company and related State agencies was problematic regarding issues of transparency and lack of public participation since the beginning. 

 

The locals living in Nong Saeng district, Saraburi Province, and Pha Chi district, Phranakorn Sri Ayutthaya Province, gathered under the name of the Network for the Conservation of Agricultural Practices to campaign against the power plant construction since it began in B.E. 2008 until the present days.  Their campaign was carried out in a variety of methods, e.g., educating the localities regarding the impacts of power plants, submitting petitions to the relevant State agencies, filing plaints to the Administrative Court to revoke the power plant license and to enforce the Saraburi City Plan, and etc. 

 

However, among the mist of such opposition, the company and the relevant State agencies still continued to consider the authorization of the licenses until the license to Energy Industry Operation were eventually passed on 17th June 2010 and the license to Electricity Generation on 1st November B.E. 2554.  Hence, the Company began its construction in November 2010

 

Even though the case has been filed to the Administrative Court, and the draft Ministerial Regulation to Implement the Saraburi Province City Plan has already been published in the Royal Gazette; but as long as the Administrative Court does not make its ruling, together with the claim that the State agency had authorized the power plant construction before the draft Ministerial Regulation on Town Plan was published in the Royal Gazette, such a draft is not legally binding. Thereby, the Licenses were issued in accordance with the law, resulting in the company being able to continue with their power plant construction. 

 

 

24 – 25 September 2009 

Around 200 villagers gathered and blocked Phahonyothin Road (Highway No.1), around Km. 98 – 99 to protest against the power plant construction and to demand the problems caused by the landfill to be fixed.  The protesters consisted of those who were afflicted by the landfills located in 3 sub-districts—NongPlaLai, HuaiHaeng, and KudNokPao—and the People's Network against Nong Saeng Power Plant Projects.  The villagers demanded that the odor caused by the landfills be fixed and the Nong Saeng Power Plant Project be cancelled.  The purpose of this protest was to negotiate with the Minister of the Department of Industrial Works, who has the authority to revoke such a project.  Despite all of the protests, the Minister of the Department of Industrial Works did not, in the end, concede to negotiate. 

 

In the afternoon of 25th September 2009, the protesters dispersed themselves.  The 6 protesters accused of leading the protest subsequently received arrest warrants, dated 24th September 2009. 

 

 

5th October 2011 

Saraburi Court made its ruling which can be summarized as following: 

Due to the fact that the events relating to this case occurred during daytime and the protest occurred continuously through a long period of time.  Also, before this event occurred there has been prior protests continuously making demands to the relevant State agencies.  Therefore, it is beyond reasonable doubt that the Plaintiff's witnesses remember the five defendants.  The Plaintiff's witnesses testified in order consistently and are state officers who have no reason against all five defendants.  Thereby, it is believed to be true that all five defendants made speeches using the loudspeaker as the Plaintiff's witnesses have stated. 

The act of blocking the highway cannot be done by one person, but it needs collaboration from those who have the same vision or aim, which preceding to the protest, all five defendants with others had formed a demanding request, assembled in front of the town hall.  Together with the fact that the place of the event was a public highway which far from the landfill, power plant, and the claimed State agencies they wanted to address the problems to. Therefore, it can be concluded that there was prior arrangement with the intention of corporately protest by blocking such highway since the beginning, to cause disturbance, hoping to gain more negotiating power with the State agencies. Even though, it is not clear whether the five defendants were the ones who parked the cars, pitched up the tents, or lined up the wheels, but since those who accompanied all five defendants committed, all five defendants are deemed to be the principals of such accomplices. 

 

Section 229 of the Criminal Code is written with the intention to protect the public safety without requiring that any danger takes place as a result.  Therefore, since the place of the events was a public highway with a considerable amount of fast-moving vehicles, and when there was a protest, the police officers had to put up cones to prevent any danger that may occur to the protesters and people who using the public highway.  Therefore, it is reasonably believed that the protest may cause danger.  As with the charged of using the loudspeaker, it appeared to the court that they were not given any permission to do so.  Therefore, the protest and the usage of loudspeaker constituted offences. 

 

The right to assemble peacefully without arms that would be protected under the Constitution must not be against any other laws.  However, the defendants' actions were considered offenses pursuant to the Criminal Code and the Highway Act, thus, the Court ruled that such acts were the same acts violating several provisions of the law, the severest punishment shall be applied, which is Section 229 of the Criminal Code— each person punished with one year of imprisonment and fine of 6,000 Baht—and the offense of using the loudspeaker without permission punished with a fine of 200 Baht per person.  In total, each offender is punished with one year of imprisonment and a fine of 6,200 Baht.  Even though the defendants' actions have troubled other people but it is believed that the defendants merely intended to demand that the state agencies fix the problems caused by the landfill and the power plant construction.  Also, the defendants have never committed any offense prior to this case.  The Court thereby imposed that each of their punishments be suspended for 2 years, be on  1 year probation, and to do 48 hours of public services. 

 

After the Court of First Instance made its verdict, the defendants submitted an appeal to the Court of Appeal.  Later, the Court of Appeal made its ruling affirming the Court of First Instance’s judgment. The defendants then petitioned to the Supreme Court and on 24th Octorber 2013 the Supreme Court delivered the verdict agree with the Court of Appeal