The filing of a lawsuit in bad faith as stated in paragraph one includes incidents where the complainant intentionally violated a final court’s orders or judgments in another case without providing any appropriate reason.” 13. The reasons for introducing Article 161/1 were specified in a proposal for the amendment of the Criminal Procedure Code in a report by Mr. Mahannop Dejvitak and other members of the NLA, in which it was highlighted that: “[I]n many instances, persons exercised their right to sue another in bad faith or distorts the facts in order to harass or take undue advantage of a defendant, or to procure any advantage to which the complainant is not rightfully entitled to, for example, by submitting cases to a distantly located court so that the defendant would face difficulties in travelling to defend themselves at trials, by seeking prosecution of a defendant for an offence with more severe penalties to intimidate defendants and cause them to self-censor or avoid certain work, or by instigating lawsuits, during which the alleged victim will not present themselves at court, causing difficulties for the defence in the preparation of their arguments.”17 The preamble of the draft amendment to the Criminal Procedure Code that was approved by the NLA also highlights that the objective behind the amendment was “to prevent the filing of a lawsuit in bad faith which will violate the rights and freedoms of others”.18 We understand, however, from our discussions with judicial authorities that Article 161/1 is likely only be applied in exceptional circumstances. 14. While we welcome the efforts of the NLA to institute legal protections against SLAPP, we would like to propose that the following concerns be also addressed, towards ensuring broader protection against SLAPP. 15. First, Article 161/1 does not provide a clear definition of “bad faith” and does not clarify that the purpose of the amendment is to protect the free exercise of fundamental freedoms, protected under Thailand’s Constitution and Thailand’s international legal obligations. It is crucial that “bad faith” is specifically defined and, in particular, includes a clear prohibition on filing of lawsuits to harass or intimidate individuals and entities who are solely exercising their human rights and fundamental freedoms. 16. Secondly, given the qualification “if it appears to the court”, Article 161/1 might not allow either party to submit any proof of intention – leaving the case entirely up to judicial discretion. In this respect, we recommend that both parties be expressly afforded the right to make submissions to provide evidence in support of their argument before the court, to guide the court’s decision in the matter. Furthermore, while we consider that the general right to appeal or judicially review the court’s decision would apply to this question, we recommend that this right to appeal the court’s decision be expressly guaranteed under Article 161/1; i.e. that the question be subject to judicial appellate review. 17. Thirdly, SLAPP lawsuits are not limited only to criminal cases filed by a private complainant, – e.g. an injured individual or private entity – but can be launched through civil cases or criminal cases filed by a public prosecutor. Notably, Article 161/1 prevents only private criminal complainants from refiling SLAPP criminal lawsuits, and not public prosecutors. The following cases highlight how Article 161/1 is insufficient to curtail SLAPP lawsuits which are civil suits or criminal suits brought by public prosecutors. 18. In November 2016, it was reported that gold mining company Tungkum Co. Ltd. had brought at least 19 criminal and civil lawsuits over seven years against 33 members of community-based environmental rights group Khon Rak Ban Kerd Group (KRBKG) and other villagers, including a 15-year-old girl, in Loei province, seeking nearly 320 million Thai Baht (US$9.1 million) in damages for their work to defend environmental rights in 17 Ibid, at 72; Mr. Mahannop Dejvitak et al., Rationales and Principles attached to Draft Amending Criminal Procedure Act, submitted to the Chair of the NLA, 22 June 2017, available at: http://web.senate.go.th/bill/bk_data/429-1.pdf 18 NLA, Draft Amending Criminal Procedure Code, 11 December 2018, available at: http://web.senate.go.th/bill/bk_data/429-3.pdf 4