COM 05/2015

Assessment of the Public Assembly Act B.E. 2558 (2015) through International Human Rights

Kohnwilai Teppunkoonngam, Human Rights Lawyer

“Since the fighting began on Thursday at least 22 people have died with 147 wounded…. The spiralling violence, which has moved from street to street over the past three days,has raised concerns that Thailand is heading towards civil war.”

— Batty, David and agencies (15 May 2010). Thai death toll rises as redshirts clash with troops. The Guardian.

The right and freedom of public assembly is both guaranteed by the International Covenant on Civil and Political Rights (ICCPR), to which Thailand has been a party since 1996, and numerous previous constitutions of Thailand, including Section 63 of the Constitution of Thailand of 2007 (B.E. 2550). Nonetheless, it has never been seen as a hot debate until recent years, when we witnessed several rounds of public assembly for a considerable time, sometimes literally aiming at overthrowing the government that led to violence and disruption  of public services and sometimes clashed with authorities, counter- demonstrators, or bystanders.

It strikes my heart every time when I learn that a peaceful assembly and its dissolution turns out to be violent or causes damage to Thailand and the people at the demonstration sites, regardless of political groups involved, or nationalities. Instead, this individual right that is expressed in a collective manner can help reach a resolution as well as better understanding, and cultivate a culture of peace and justice in society, if it is done proportionally in a peaceful manner in a democratic environment, whereby the rights and freedoms of everyone are guaranteed and justly weighted. Needless to say that we need a good tool which is in compliance with international legal standards to help ensure that any public assembly in Thailand from now on will not repeat the same history. This is also the aim of the newly enacted Public Assembly Act B.E. 2558 (2015) of Thailand as follows.

“The reason to enact this Act is that it is deemed appropriate to clearly stipulate the requirements for the exercise of the right of public assembly to be in compliance with the International Covenant on Civil and Political Rights to which Thailand is a party, while to ensure that public assemblies will be carried out in a peaceful and orderly manner, not to be in conflict with national security, public order, the good morals of society, as well as public health and the convenience of the people who will use public properties, also not to be in conflict with rights, freedoms, and the human dignity of others, therefore, it is necessary to enact this Act.”

One interesting question that should be raised however is how we can be sure that this Act will serve its objectives and spirit well. To answer this question, we need to look at the legislation itself. The Public Assembly Act B.E. 2558 (2015) spells out two major objectives as follows:

• Firstly, the Act aims to provide requirements for exercising the right of public assembly to be in compliance with the International Covenant on Civil and Political Rights (ICCPR); and
• Secondly, the Act aims to ensure that public assemblies will be carried  out  in  a  peaceful  and  orderly  manner,  and  not  be  in conflict with other principles, namely but not limited to, national security, public order, good morals of society, the health of people, rights, freedoms, and human dignity of others.

The first objective can be tested now by reviewing and analyzing the texts of the legislation in comparison with the ICCPR and other applicable international legal standards or norms, while for the latter objective, it is arguably questionable whether it can be proven before the Act is actually applied through the test of time.

Under the International Covenant on Civil and Political Rights (ICCPR), Article 21 specifically guarantees the right of public assembly and permits a restriction of such right under certain circumstances as follows.

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

Furthermore, Article 2.1 of the Covenant stipulates that every State party shall respect, protect and fulfill the rights recognized by the Covenant, without discrimination – or distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Therefore, the State shall undertake measures to guarantee (and impose restrictions,  when necessary and applicable to protect) the rights of everyone in its territory, including the right of peaceful assembly without discrimination.

It is essential to note that the peaceful character of a public assembly is the condition of the right guaranteed under Article 21 of the Covenant. If a public assembly is violent, the demonstrators will not enjoy the right enshrined in Article 21 of the Covenant. It should also be noted that the right of peaceful assembly is a good example to show one character of human rights – the interrelation of rights and freedoms, i.e. the right of peaceful assembly can affect the rights and freedoms of others; moreover, the restriction on the right of peaceful assembly of a person can encroach on other rights of such person as well, namely, the right to life, liberty and security; the right to a fair trial, freedom of association, expression and thought, conscience and religion.

Due to the interrelation of rights and freedoms, when it comes to the restriction of the right of public assembly, Article 21 of the Covenant leaves room for each State party to consider how it is going to uphold and weight all conflicting principles; nonetheless, it gives us a sense to what extent the right of peaceful assembly can be restricted. Firstly, it requires that the restriction shall be made by law, in this case, the primary law (or legislature’s law). The law, then, does not only serve to guarantee the right of public assembly, but also to limit and restrict this right. Secondly, the restriction shall be made on legitimate grounds: it must be necessary in a democratic society, in the interests of national security or public safety, public order, the protection of public health or good morals or the protection of the rights and freedoms of others. Henceforth, any restriction without legitimate grounds is considered a violation of the Covenant (or else unconstitutional in several democratic countries).

Similar to most international instruments, the Covenant only provides a broad and general framework, so that the application of the instrument varies in each State party. However, since 2005 there is an approach to harmonize the application of Article 21 of the Covenant across Europe and the OSCE area. In 2010, the OSCE and the Council of Europe launched the Guidelines on Freedom of Peaceful Assembly (Second Edition) to offer a practical toolkit for legislators and practitioners to impose and implement the laws. In 2011, they advanced further by introducing another toolkit named Handbook on Monitoring Freedom of Peaceful Assembly addressed at civil society to monitor the States’ application in order to ensure the full respect of the right of public assembly. Both Guidelines and Handbook provide comprehensive checklists for legislators and law practitioners to ensure that the law will not accord excessive powers to authorities, and to prevent that an excessively wide discretion of the authorities may lead to abuse and aggression. These checklists include a presumption in favor of holding assemblies; the state’s positive obligation to facilitate and protect peaceful assembly; legitimate grounds for restriction; legality of the law imposed for restriction; proportionality; non-discrimination; review and appeal; good administration; and liability of the regulatory authority.

Now back to Thailand: When considering the scope and the key features of the Public Assembly Act B.E. 2558 (2015), we shall see that the Act aims to govern a broad area of public assembly which includes all purposes of assembly including but limited to the expression of political opinions, providing that:

“’Public assembly’ means an assembly of persons in a public space for the purpose of demanding, supporting, protesting or expressing an opinion on any matter to the general public, and where other persons are able to participate in the assembly, regardless of whether or not there is a procession or relocation.”

Further, the Act stipulates numerous detailed requirements for public assembly, which include procedures for giving a notice on the assembly; restrictions on places and sound; duties of assembly organizers and participators; policing powers for safeguard of public order;  court’s order and execution to dissolve the assembly.

Some key features of the Public Assembly Act B.E. 2558 (2015) are very pioneering to ensure that a public assembly will be peaceful. These include, inter alia, the duties of assembly organizers and participators, the notification requirements and the restriction on sites and sound. However, comparing to international accepted principles and standards, particularly those in the ICCPR and those recommended by the OSCE/ Council of Europe’s Guidelines on Freedom of Peaceful Assembly (Second Edition), the Act still falls short of expectations, containing some key problematic issues as follows.

1. Non-discrimination

Although the Act is silent on the rights of aliens to public assembly, it is of my concern that when interpreting this Act, it shall be interpreted together with the Constitution of Thailand. According to Section 53 of the new constitution draft, the right of public assembly is only recognized and guaranteed for Thais, not for foreigners in Thailand, as Section 53 of the constitution draft is intentionally placed in Part 3: Rights and freedoms of Thai people. Henceforth, Thailand is at risk of violating the non- discrimination principle under Article 2.1 of the International Covenant on Civil and Political Rights (ICCPR).

2. Legality and proportionality of an appeal against the authority’s decision

Under Section 11, paragraph 4, the Act does not clarify whether the assembly organizers can appeal against the decision of the notice receiver’s supervisor (appeal authority) at the Administrative Court. Section 11, paragraph 4 even says that the decision of the appeal authority is final; it is worthwhile to remind law practitioners that the authority exercises administrative power which is subject to judicial review by the Administrative Courts. Furthermore, when it comes to the challenges for the constitutional right of public assembly, it is subject to review by the Constitutional Court as well. The Act’s silence on whether the assembly organizers can challenge the appeal authority’s decision, including challenges on legitimate grounds of restriction, at the Administrative Court, will create a stalemate situation and a big question whether and how the decision of the appeal authority can be checked for legality and proportionality. In any case, we should remember that a legitimate ground of a restriction of the public assembly right must respect one of the requirements under Article 21 of the ICCPR.

3. Flagrant offence and broad policing powers

Section 24 of the Act deals with flagrant offences and the powers of the authorities to remedy such offences. It reads as follows.

“Upon the expiration of the prescribed time period for the participators to vacate the control area, if there is a participator in the control area or enters the control area without permission of the authorized official in charge of the public assembly, such person shall be deemed to have committed a flagrant offence, and the situation controller and person assigned by the situation controller  shall take action to enforce the termination of the public assembly pursuant to the court order. In this regard, the situation controller and person assigned by the situation controller shall have the following powers:

1. Arrest a person in the control area or person who has entered the control area without permission from the authorized official in charge of the public assembly;
2. Search, seize, attach or remove property used or held for use in the public assembly;
3. Act as necessary pursuant to the plan or guidelines for public assembly supervision as provided under Section 21;
4. Order the prohibition of certain acts for the benefit of terminating the assembly.”

The fact that certain acts committed by participants of the assembly are deemed to be flagrant offences under Section 24 is totally in conflict with the general legality principle of criminal law  and  with  Section  80  of  the  Criminal  Procedure  Code  of Thailand, which reads as follows:

“An offence is considered flagrant when a person is seen committing it or is found in such a condition as there can be practically no doubt that it has just been committed by him.

However,    offences specified in the Schedule annexed to this Code, shall be deemed to be flagrant in the following case:

1. When a person is being pursued as an offender with hue and cry, or
2. When a person is found almost immediately after the commission of the offence in the vicinity of the place where the offence has been committed, and he has in his possession articles obtained through the offence, tools, arms or other articles which were presumably used in the commission of the offence, or there are clear traces of guilt upon his dress or body.”

Section 24 of the Criminal Code above complies with the general principle of criminal law regarding the flagrant offence in two folds: one is the typical flagrant crime when there is proximity in time between the moment the crime was committed and the moment of its discovery; and the offence is discovered immediately after it has been committed. The other one is the assimilated flagrant crime where flagrance can be presumed due to the proximity in space and time of the commission of the offence and/or the publicity of the commission (when a person is being pursued as an offender with hue and cry) together with the aggravated  offence  (offences  specified  in  the  Schedule).  (Seefurther at Ciprian, Bogea Marius. General concepts on flagrant crimes. Aspects de lege ferenda and comparative law, p. 3)

Interestingly, a participant remaining in the control area or entering into the control area without the permission of the authorized official in charge upon the expiration of the prescribed time period for the participants to vacate the control area does not commit a lex lata offence nor an offence specified in the Schedule annexed to this Code nor an aggravated offence. Section 24 of the Public Assembly Act B.E. 2558 (2015), in this sense, arguably fails to comply with the internationally accepted general principle of criminal law and Section 24 of the Criminal Procedure Code of Thailand; henceforth, the legality of the Act in this respect should be a big question.

4. Civil Court or Administrative Court’s Jurisdiction?

The nature of the dispute regarding the legality of the exercise of the public assembly right and the legality of the authorities’ act against it lies in the territory of administrative law, whereby the administrative acts’ legality is reviewed by the Administrative Court (in case of a dual court system). According to the Constitution of Thailand, particularly Section 227 of the current constitution draft and Section 227 of the Constitution in 2007), the Administrative Courts have the power to try and adjudicate cases of dispute between a State agency, State enterprise, local government organization, organ under the Constitution or State official on one part and a private individual on the other part, or between State agencies. When the authority finds that the public assembly is illegal or becoming illegal and needs to dissolve or end the assembly, the authority shall seek an order and execution from the Administrative Courts. However, Section 21, paragraph two, and Section 22 of the Public Assembly Act B.E. 2558 (2015) requires that the authorities shall file a motion with a Civil Court or a Provincial Court, instead of the Administrative Courts. Confusions within the concept of jurisdiction under Section 21 and  Section  22  of  the  Act  will  multiply  problems  for  both authorities and demonstrators and put the country at risk of a deadlock conflict between authorities, or state institutes and people, as well as the society at large.

Taking into consideration the problems above and assessing the Public Assembly Act B.E. 2558 (2015) through an international human rights lens, I fear that the Act may fail to even serve the first objective, as the Act provides a confusing concept of jurisdiction, conflicts with the criminal procedure code with regard to flagrant offences and broad policing powers, raises questions regarding the judicial review of the legality and proportionality of an appeal authority’s decision, and risks a violation of the non-discrimination principle under the ICCPR when it is interpreted in conjunction with the constitution (draft) in the future. With this Public Assembly Act B.E. 2558 (2015) of Thailand, I hope that another round of insurrection will not begin.