H.E. Kasit Piromya, People’s Democratic Reform Foundation, former Minister of Foreign Affairs of Thailand

Public assembly is a fundamental right of expression. It has to be peaceful in nature and not otherwise. It usually happens when there arises a perception about the conduct and performances of persons holding public offices. Public assembly can be pre-arranged or spontaneous. The authorities concerned have the duty to coordinate with and facilitate any public assembly in order to minimize public inconveniences and disruptions.

The authorities should ensure that public assemblies with opposing views are appropriately kept apart. The authorities must do their utmost to prevent any act of and attempt at violence by subversive elements to disrupt peaceful assemblies.

On the whole I am not enthusiastic and not in support of the recently promulgated “Public Assembly Act B.E. 2558 (2015)” as I deem it overall to be restrictive in nature. Any act or behavior beyond peaceful assembly can be dealt with by other existing civic and criminal laws. The right to assemble must come first and rules and regulations can follow accordingly.

The Act should be reviewed by the public further and by the future elected legislature.

Assist. Prof. Dr. Jantajira Iammayura, Faculty of Law, Thammasat University

Overall, I would like to make four remarks on the Public Assembly Act B.E. 2558 which entered into force on 13 August 2015.

1. The act specifies many strict conditions for participants of an assembly, before and after the public assembly, for instance, the participants need to notify the assembly to the head of a police station 24 hours in advance of the assembly. There must be an “assembly organizer” in each assembly. The Act further prescribes the duties and responsibilities of the assembly manager and the participants in case any participant violates the law. Moreover, if an assembly is not being notified in advance and if that the respective authority did not grant a waver, the assembly will be considered illegal (Section 14). Participants in such an assembly commit a criminal offence that is punishable with a term of imprisonment not exceeding three years (Section 21, 24 and 33 together) even if in reality such assembly is actually peaceful and unarmed and therefore protected by the constitution. It can be seen that the Act prioritizes “procedure” as laid down in the requirement of advance notice in the same way as it prioritizes “substantive contents” which is the freedom to assemble peacefully and unarmed according to constitution. However, procedural rules and substantive contents should be valued differently. This could raise the question of unconstitutionality in the future.

2. According to my remarks under 1., it can be seen that the law aims to regulate large-scale assemblies with a lot of participants. The drafters considered the political assemblies within the last 5 years. Each assembly was occupying the streets quite long. It caused riot, violence as well as social and economic disruption. However, the drafters did not consider assemblies like “Flash Mobs” which are gatherings of a small amount of people who do certain activities together within 20-30 minutes such as lighting candles, reading poetry, or playing music. The activity “Flash Mob” is a kind of entertainment activity or cultural activity. Such activity should not need to have any “assembly organizer”. It is open to question whether a person who posts information on social media in order to ask people to join a flash mob at a particular date, place and time could be an ”assembly organizer” according to section 4 or not, or whether people who share such information are co-assembly organizers.

If yes, this would lead to certain legal duties and responsibilities. The Act should make an exception for cases in which a public assembly has very little participants and takes place at a time which would affect the usage of public space by third parties only to a minor extent because the procedural requirements would cause unnecessary burdens for people who want to organize or join a small assembly.

3. The duty to notify the assembly 24 hours in advance without any exception cannot be reconciled with the nature of “public spontaneous assemblies”. On the one hand, the drafters might have thought that the police can consider wavers in particular cases which would relieve the participants from criminal liability. But on the other hand, it could be considered that the Act illegitimately limits the freedom of expression of the participating people.

4. The last observation, which is my deepest concern, is that the Act assigns the Courts of Justice to work as administrative authorities. Section 21 and the following sections provide that, when the authority orders the participants to end the assembly but the participants do not comply with the order (the reason of such order might be that the participants did not notify 24 hours in advance and that they have not been granted a waiver which the participants might think is unfair), the authority can file a motion to the court and ask the court to give an order to dissolve such assembly. Even though the court order can be appealed to a higher court, the order of the appeals court is final.

From an academic standpoint, we are not sure whether such a court order is an administrative act or a judicial act, and whether the wording “is final” really implies a final decision in exercising administrative power or not. If it is not final, the participant can bring the case to the administrative court. If it is a “final” decision from the judiciary, this could result in the problem that judicial power cannot be reviewed. But I feel most concern with regard to the wording in section 22 subsection 2. I think that it does not allow the court to use discretion so much.

Therefore, the court is bound to order in accordance with the order of the authority in every case. And even the court is actually called to judicial review, the Thai courts of justice have very few experience with administrative cases, so that the courts of justice might not be the appropriate courts to decide these matters. I wonder whether the drafters wanted the courts of justice to be in “the first line” to deal with the pressure from the administrative authorities.

Pol. Col. Siriphon Kusonsinwut, Criminal Affairs and Litigation Division, Royal Thai Police

The right to public assembly has long been protected under the International Covenant on Civil and Political Rights which Thailand has obligated itself to comply with. This right has been written both in the 2540 (1997) and 2550 (2007) Constitutions based on the conceptual framework as the freedom to gather without any interference of the state except some reasons such as the security of state, or the public order. In order to address specific cases, the state needed to enact the new law to control and manage public gatherings.

The enactment of a Public Assembly Act in Thailand has been continuously proposed to the Parliament since B.E.2543 (2000) by the Royal Thai Police Agency (RTP), but failed. It has been almost completed in the Abhisit administration around B.E.2554 but the parliament was dissolved and the draft had not been confirmed by the Yingluck administration. The RTP has relentlessly proposed the same draft to the Prayuth administration in B.E.2557 and finally it has been declared to be in force as of August 13, 2558 (2015).
The current public concern toward this act is whether this law is a good or bad law and how to enforce this law fairly. Is the current government legitimized to pass this Act? After the law has entered into force, how will people exercise their rights to voice their needs to the public? This short essay might be conclusive and understandable as the eye-view of an officer who has played a crucial role in the drafting of this law for the RTP; my answer, therefore, is positive to adopt this law as the tool or measure to manage the method of the exercise of the people’s rights and freedom, in terms of place, time, and MANNER when the people need to gather themselves in public place.

Before the adoption of the Act, the RTP was subjected to the difficulties of the legal question regarding the legitimacy and authority of the police to control the constitutional freedom and rights of the people under the specific guarantee of the 1997 and the 2007 Constitutions. Most lawyers, including judges and scholars, have misunderstood that the new categorized rights and freedoms are of a higher value than any other rights because they are protected by the Constitution, and thus the Criminal Code or other parliamentary acts cannot conflict with the public assembly rights.

For this reason, when applying other related laws to control and manage public gatherings, those “scholars”, including judges, would disagree with the RTP. In the most severe case, known as the “October 7” (2008) case, the RTP exercised the power to disperse the crowd which occupied the area surrounding the parliament to prevent the members of parliament from taking the oath of office. As a consequence, police commissioners and other authority personnel were subjected to criminal charges and got fired from their offices. Another incident that involved the question whether individual rights have been exercised legitimately was the protests against the Yingluck administration regarding the Amnesty Bill in B.E.2556-2557. Finally, the crowd occupied the governmental compounds and many public streets and obstructed the election process. According to the Constitutional Court, the gathering of a crowd is congruent with the “Right to Public Assembly” under the guarantee of the Constitution, and thus the crowd is protected by the Constitution. It sounds very absurd when reading these Constitutional Court verdicts at the time of political turmoil, for example in B.E.2556-2557 (2013-2104). It is, thus, the right time to enact the new law to identify what the people are allowed to do when they want to exercise their rights.

According to this new law, certain activities which are categorized as educational activities at educational places, as well as religious or customary ones, will not be subject to any regulation of this law. The places that are “taboo” for public gatherings reflect our respect for the monarchy as they include places neighboring (closer than 150 meters) royal premises such as the ing’s palace, but also places like parliament and executive offices. However, other public places are less restricted than this first type of places. The access to public service offices must not be obstructed.

The method to exercise the right is based on the concept of “information”. A police official must be informed not less than 24 hours prior to the gathering and the police officer can give instructions and orders to the group leader in order to adjust the place and time including the manner of the gathering under the law. If violence occurs the police must file a motion to the court to disperse the crowd. Until a ruling of the court issued, in case of exigent circumstances, for example if the crowd creates severe public disorder, the police might arrest and control the crowd if this is appropriate under general public law principles such as necessity and proportionality.

In sum, the new law will guarantee the right to public assembly and, simultaneously, it will regulate the time, place and manner of a gathering including guiding the methods for the use of force to control the crowd. This law will save both the participants of the gathering themselves as well as the public in general as a whole. Not only the crowd has the right to exercise their rights, the general people who like to stay in peace also have rights that need to be protected as well. The new law will balance those categories of rights.

Saman Zia-Zarifi, Director, Asia and Pacific Program, International Commission of Jurists (ICJ)

Thailand’s new Public Assembly Act, which just entered into force on August 13, establishes new criteria for holding peaceful public assemblies and penalties for those who violate these criteria. As such, it is unnecessary, and can be seen as part of the general trend of laws restricting civil and political rights in Thailand.

The law is the first legislation to address public assemblies specifically. The government justified the legislation as necessary to regulate public gatherings and curtail violence and disruptions to public service—a response to several years of competing public protests by different political groups in Bangkok. But the vast majority of these protests were peaceful and adequately handled by existing laws, raising questions about the necessity of a new law specifically addressing public assemblies.

In fact, the Thai government has described the law to international observers as a measure to defend human rights (for instance, during Thailand’s periodic report to the Committee on Economic, Social and Cultural Rights in June).

But the law potentially limits when, where and how public gatherings may be organized, instead of facilitating the exercise of the right to peaceful public assembly—which is after all enshrined in Article 21 of the International Covenant on Civil and Political Rights.

Chapter 2 of the law demands 24-hour notification of any public gathering to the local authorities, including the chief of police of the area of the proposed venue. The local authorities can deny permission if they are ‘of the opinion’ that the assembly “impede the performance of duties of, or hinder access to service of” State agencies, courts, airports, hospitals, embassies, or ‘other places as notified’ (Section 8).

This decision is appealable to the authorities’ immediate superior, and, failing that, to the Administrative Court. Failure to comply with these requirements would lead to the assembly being labeled unlawful, and thus subject to cancellation. Organizers of unlawful assemblies could face prison sentences of up to six months.

The Public Assembly Act says that any public assembly that does not comply with its provisions is deemed illegal, and the authorities can demand its cancellation within a specified period of time.

Thus local authorities (particularly the police) are afforded wide discretion to ban public assemblies, particularly without 24-hour notice. This is contrary to ICCPR Article 21; as explained by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina iai, “Spontaneous assemblies should be recognized in law, and exempted from prior notification … The State has a duty to design operating plans and procedures to facilitate the exercise of the right of assembly… .” [http://freeassembly.net/wp-content/uploads/2014/11/Free dom-of-Assembly-best-practices-factsheet.pdf]Furthermore, “Restrictions must still allow demonstrations to take place within “sight and sound” of its object and target audience – not, for example, forced to the outskirts of the city or in a specific square, where its impact will be muted.”

And finally, “should organizers fail to notify authorities of their event, the event should not be automatically dissolved simply and organizers should not be subject to criminal or administrative sanctions resulting in fines or imprisonment.”

A major shortcoming of the Public Assembly Act was that it was passed without consultation with civil society groups – precisely those most directly affected by the law. Such consultation may have resulted in revision or clarification of some of the law’s problematic provisions; it would also have gone a very long way in addressing the suspicion of Thai civil society that the law was not designed to defend the right to freedom of assembly, but rather to restrict this important right. Seeing as how the law was passed at a time when any political public gathering is banned by military law, this suspicion is not unreasonable.

Ultimately the impact of the Public Assembly Act will be determined in practice. The Royal Thai Government should immediately remove restrictions on the exercise of the right to freedom of assembly and allow peaceful public gatherings to take place.

Public Assembly Act fails to meet Thailand’s international human rights obligations

Amnesty International

Amnesty International remains concerned that the Public Assembly Act fails to conform to Thailand’s international human rights obligations to protect the right to freedom of peaceful assembly.

This right is protected in Article 21 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a state party. The related rights to freedom of expression (Article 19 ICCPR) and association (Article 22 ICCPR) also remain at risk.

Amnesty International is deeply concerned by the imposition of criminal penalties under Articles 27-35 of the Act on those who fail to meet certain requirements in organizing an assembly, including application for prior approval as set out in the Act. Criminalizing organizers and participants of peaceful assemblies would adversely affect the human right to freedom of peaceful assembly as well as to freedom of expression and association.

The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has stated that peaceful intentions of assemblies should be presumed. (Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/23/39, 24 April 2013, para. 25) The Special Rapporteur has stressed that no authorization should be required to assemble peacefully. (Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/23/39, 24 April 2013, para. 51.) The exercise of the right to freedom of peaceful assembly should be governed at most by a regime of prior notification, which should not be burdensome, the rationale of which is to allow state authorities to facilitate the exercise of the right and take measures to ensure public safety and order and the rights and freedoms of others. (Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/23/39, 24 April 2013, para. 51) The Special Rapporteur has recommended that notice should be subject to a proportionality assessment, and should only be required for large assemblies or those where a certain degree of disruption is anticipated (Report of the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association, UN Doc. A/HRC/20/27, 21 May 2012, para. 28).

Amnesty International remains concerned that vague wording, including in Article 16 of the Act on the duties of those assembling not to cause “inconvenience” and not to assemble without authorization between 6 pm and 6 am, impose sweeping restrictions on peaceful assemblies, far beyond those allowed by the ICCPR. The police may also order prohibitions of assemblies should they believe that they obstruct government services or any other places as designated by the Prime Minister.

Amnesty International calls on the authorities to remove all provisions imposing criminal or administrative sanctions, including imprisonment or fines, on organizers for lack of notification of an assembly and to remove all provisions criminalizing actions related to peaceful assembly by organizers or protestors, bearing in mind that where internationally recognised criminal offences are committed, general civilian criminal legislation would apply to protestors as to any other person.

While the Act refers to constitutional guarantees and provisions, the current Interim Constitution provides no such guarantees on freedom of peaceful assembly.

Amnesty International also urges authorities in Thailand to restore Constitutional protections of human rights and to remove other obstacles to the full enjoyment of the right to freedom of peaceful assembly. This includes, in particular, repealing military orders and provisions that have made peaceful assemblies involving political activities virtually impossible to hold legally, and which the Assembly Law would not address.

Some Remarks on the Public Assembly Act 2015

Dr. Michael Nelson, Senior Research Fellow, CPG, Faculty of Law, Thammasat University

Given the weakness of Thailand’s representative system, and the centralized bureaucracy’s arrogance in dealing with local people, protests at all levels have long been a regular occurrence in Thai politics. In Bangkok, the “Assembly of the Poor” used to camp outside of Government House, as did workers from the Triumph factory in front of the Ministry of Labor. Up-country, people protested against the Pak Moon Dam, Bo Nok and Hin Krut power plants, or the construction of Tesco super markets. Farmers protested for better government measures regarding debt relief, while anti-alcohol activists rallied against the listing of an alcoholic beverage company on the stock market. At these protests, a great variety of protest forms have been employed, some of which led to considerations about introducing legal restrictions to maintain public order and to avert negative consequences for non-participants.

When the Thaksin government, in 2005, sponsored a protest law that, among other things, tried to keep protestors off highways, Democrat Party MPs and NGO activists criticized the draft for possibly curtailing human rights. This did not prevent the Abhisit government, in reaction on the Red-Shirt protests in 2010, from introducing their own public assembly bill (the Council of State was initially concerned with early texts since April 2009, and a number of Phalang Prachachon MPs had submitted a draft in June 2008). In March 2011, there were five different drafts in the House. Then-Deputy Prime Minister Suthep Thaugsuban justified the draft being proposed by the Abhisit government, and noted that protest organizers would have to inform police 72 hours in advance (now reduced to 24, with the possibility of spontaneous protests in place). In April 2011, the government draft was close to be passed in its third reading, yet in September of the same year it still languished in the House.

Therefore, the current Public Assembly Act, based on a preparatory draft by the National Police Office that reacted on the PDRC protests in 2014, reflects a legislative discussion that has been going on for years. Important issues concerned the right to public assembly in a democracy, as stipulated in the Thai constitution, obligations based on international law, and comparative legislation from other countries, including the German Public Assembly Act (see the LA’s Thai-language “Documents concerning the deliberations,” dated 25 February 2015). However, the name of Suthep Thaugsuban also indicates a key problem of this law – it is unenforceable when political actors do not respect it. With his PDRC protests, Suthep fundamentally violated the text and the spirit of the planned law that he had earlier defended when he was in government. Protests such as those by the UDD or the PAD/PDRC will thus probably not be affected by the new act, while ordinary protests, such as those mentioned above, will be somewhat bureaucratized. Moreover, there is always the possibility that the authorities could handle the law in a restrictive manner, rather than thinking about the freedom of assembly as a fundamental democratic right.

Finally, a key element of the law had already been substantively compromised before the Assembly Act came into effect. This occurred when the Constitutional Court repeatedly rejected to apply Section 68 of the 2007 Constitution (using non-constitutional means to grab state power) to reign in the PDRC protests.

The court even rejected to deliberate the complaints oddly arguing that the protestors were merely using their constitutional right to peaceful and unarmed public assembly. Yet, those assemblies were neither peaceful (they expressly aimed to impact as much as possible on the rights of others, especially by making it impossible for voters to use their constitutional rights) nor unarmed (the protest organizers had set up thousands of armed “guards” whose task was to prevent state authorities from enforcing the laws against the protestors). These actions of the Constitutional Court have set the standard for the decisions of lower courts, and it therefore remains doubtful how the Thai legal system can return to a proper legal, rather than politically partisan, interpretation of the first sentence of Section 6 of the Public Assembly Act, which says, “A public assembly must be peaceful and unarmed.” Potential protesters must respect the law, but the administrative authorities and courts at all levels must also respect it. Otherwise, this new piece of legislation will be useless or become a tool of suppression (besides unduly bureaucratizing harmless protests and adding work to an overworked police force). Moreover, in a democratic system, there must be a serious discussion about the means in relation to the ends of political actions. This will be obsolete if certain groups in the polity continue to reject constitutionalism (the basis of the new Assembly Act) by claiming special rights that place them outside of the legal and constitutional order that applies to everybody else.

Peaceful Assembly Act or Peaceful Assembly Prohibition Act

Pornpen Khongkachonkiet, Director, Cross-Cultural Foundation

The right to freedom of peaceful assembly is a basic human right as we are social animals and living with dignity. Why does Thailand need an Act which is restricting basic human rights more than promoting them? Peaceful assembly is a freedom. The rights to freedom of peaceful assembly and of association are enshrined in international law as fundamental freedoms.

The space for getting out on the street to demand respect for our rights, to share our concerns with the public, to express our political opinions has become smaller in Thai society.

On several occasions, we went on the street for peaceful protests because we were desperate for justice or for our basic needs when and where the official mechanisms could not solve our problems. In the 1990s, the assembly of the poor went on the street and protested, and in the 2000s, the northern farmer federation did. There are many trade unions, small farmers including those whose loved ones died under suspicious circumstances who use the public, peaceful protest to raise their voices.

On 13th August 2015, the 2015 Public Assembly Act has come into force having been approved by the military-appointed National Legislative Assembly in May 2015. This act consists of 35 articles regulating public gatherings, which will effectively impose severe and illegitimate restrictions on the right to public assembly.

The restrictive law will govern how we will use our freedom of assembly. It was passed in 2015 in the mist of reforming the nation under the military government. It is obvious that the democratic space is disappearing. Under the new law, we need to ask for permission to gather publicly or privately and to collectively express, promote, pursue and defend common interests. The leader of the protest would be charged criminally if he failed to inform the authorities of such public gathering. According to the Act, the permission will be granted within 24 hours and will contain the details of the assembly. The definitions of “protest” and “assembly” are vague and depend upon the officials to define what is peaceful and what is not peaceful.

It is a prohibition rather than a permission. The freedom of assembly is being restricted rather than being promoted.

Legal Opinion on the Public Assembly Act B.E. 2558 (the Act)

Human Rights Lawyers Association

The Human Rights Lawyers Association, in cooperation with civil societies groups who exercise the freedom of assembly, had reviewed the draft of the Act and delivered our opinion to government agencies. We think that the enactment of this Act was an accelerated process executed by a state agency. There was a lack of people’s participation. The current political situation is not as open as to let people exercise their freedom of expression and really participate in such an enacting process. Considering the contents of the Act, we found that particular provisions limit the freedom of assembly, rather than promote the right to assemble which is a fundamental right under the principle of democracy, for the following reasons.

1. The definition of the “assembly organizer” is too vague.

The definition according to section 4 and section 10 subsection 2 includes a person who persuades or arranges an appointment for others to participate. Due to its broad wording, it is unclear which persons would be covered by this provision. It could be interpreted to be applicable to any person who publicizes and sets a date for an assembly, but also to people who agree with the assembly and help to publicize. But they are not the actual assembly organizers. Being an assembly organizer brings about legal duties and responsibilities. It also involves individual criminal liability as offenders shall be punished by law. In some cases, the state can tackle certain issues immediately such as when a person carries a weapon during an assembly. In that case, it would be unnecessary to create a liability for the assembly organizer or other participants. It is very difficult for an assembly organizer to take care of all participants, especially if it is a large-scale assembly.

2. Definition of “court” and cutting the administrative court’s jurisdiction off

According to the Act, the definition of “court” refers to the “civil court and provincial court”. Furthermore, section 13 and section 26 specify that orders and actions are not administrative orders and not administrative actions. Therefore, these orders are not subject to the Administrative Procedure Act and the administrative court cannot review such order or action of the authority. Therefore, the people’s access to justice is rendered much more difficult.

3. Specifying the area where it is prohibited to assemble

The Act specifies certain assembly areas in section 7 and section 8. The law prohibits any assembly within the area of the National Assembly, the Government House and Courts, except where a space for public assembly has been provided within such area. Due to the fact that public assemblies of civil society in Thailand are designed to call upon the respective authority to solve certain problems or exercise its legal duties in general, such prohibition is very problematic because the people want to urge the respective authority directly.
Naturally, such assemblies can cause inconveniences per se. The provision seems to prohibit assemblies generally so that people cannot not exercise their right.

4. The provision to notify the assembly within 24 hours in advance with details

The law provides that people who want to organize a public assembly shall notify the assembly before the assembly starts. The organizer shall notify the objective of the assembly according to section 10 to section 14, a requirement that is not in accordance with the nature of assemblies because assemblies can occur spontaneously such as assemblies of laborers when an employer closes the establishment without prior notice, or assemblies against a construction project in the community. Moreover, even though the Act specifies that the assembly needs to be notified, such notice could rather be considered as a de facto request for permission.

5. Power of the authorized official in charge of ensuring the public assembly’s compliance

The Act specifies that the head of the police station in the locality where the public assembly is held shall be the authorized official in charge of ensuring the public assembly’s compliance with the Act. Where a public assembly extends to several areas, the commandant or commander of the police in charge of these areas, as the case may be, shall be the official authority in charge of the public assembly. Moreover, the Commissioner General of the Royal Thai Police may appoint another police official as an additional authorized official. The officer has the duty to ensure the public’s convenience, to maintain the safety of the participants and third parties, to facilitate the traffic and public transport and to prescribe the conditions or issue the orders which must be complied with by the assembly for the benefit of convenience and safety. Thus, the officer is the “middle man” to take care of the benefits of both the participants and the people who might be affected by such assembly. Giving the power to the public official to make orders or set the conditions which the participants need to comply with – otherwise they would be punished – could make the officer being able to “control” the exercise of the freedom of assembly. If there are no clear rules, the officer might exercise his discretion in order to restrict the rights and liberties of the people.

6. Conducting a procession or relocating an assembly

Both the conducting of a procession as well as the relocating of an assembly need to be notified 24 hours in advance. There are certain limitations on the relocation of an assembly according to sections 16 to section 18. In some cases, participators may start the assembly in a provincial area and then transport to Bangkok over night in order to reach Bangkok the next morning.

7. The Court of Justice is the authority to order the dissolution of an assembly

According to section 21 and section 22, the court might engage in a dispute with the participants. This is contrary to the principle of the “separation of power”. It could create legal problems later, when the people want to sue in a court in order to get a ruling that the order to cancel the assembly is illegal.

8. Determination of criminal punishment

According to sections 27 to 35, the freedom of assembly is a basic right. Therefore, there should be no criminal punishment. The most severe punishment according to the Act should be dissolution of the assembly. The participants who commit criminal offences should be punished separately according to the relevant laws. To specify a punishment which certain laws already prescribe, could increase the punishment of participants and assembly organizers to an unnecessary extent.

Opinion on the Public Assembly Act

iLaw Thailand

There are two issues which need to be considered with regards to the Public Assembly Act (the Act), i.e., the content of the Act and the process of its enactment.

1. The definition of “assembly organizer” is too vague. So it could be risky to violate the law on assembly.

According to the Act, the definition of the assembly organizer includes “a person intending to organise a public assembly and a person who persuades or arranges an appointment for others to participate in a public assembly by representing oneself or by conduct causing others to believe that one is the organiser or co-organiser of the assembly”. It might lead participators, who support an assembly and want other people to participate, to be afraid of inviting other people to join the assembly.

In case of a large-scale assembly, people who want to participate in the assembly generally tend to invite friends to participate as well. In particular, social network is very popular now. Posting, tweeting or sending Line messages to invite online friends to participate in an assembly is a common behavior of participators. It doesn’t mean that those people are actual assembly organizers.

If the term “assembly organizer” includes those people, this could cause concern among participators that they considered as assembly organizers with duties and responsibilities according to the Act. The definition could, therefore, indirectly limit the freedom of expression.

2. Duty and Responsibility of Assembly Organizer is not sensible.

There is a concern that prescriptions of the duty of an assembly organizer, for example the duty to take care of the assembly to be peaceful and unarmed, could increase too much responsibility to an insensible extent. In large-scale assemblies, it is almost impossible that an assembly organizer is able to take responsibility for all participators. But when he fails to do so, he could be punished. This could violate core principles of punishment in criminal law because any punishment has to be rendered according to the given individual guilt. A person shall be liable for an offence he or she really committed by him/herself. Hence, it should not be prescribed that an assembly organizer is liable for offences of another person.

3. The Notification in advance is an mechanism to “control” an assembly.

The Act prescribes the prior notification of any public assembly. There are several issues of concern in this regard. This sort of prior notification is indeed used in many countries. However, the Thai mechanism grants the “ otice Receiver” to use his discretion to not allow the assembly without any concrete criteria.

First Issue: To be obliged to notify an assembly at least 24 hours in advance could put an unjustified burden on the organizer. So the Act allows an organizer to request a waiver of such time limit “with reasonable ground”. However, there is no criteria, in which situation such a waiver can be requested. So it is a personal discretion of “ otice Receiver”.

Second Issue: The “ otice Receiver” according to the Act is a policeman. But other countries prescribe “ otice Receiver” to be the head of a municipal government because they might understand the assembly better and could facilitate and manage better by considering the rights and liberties of the people.

4. The determination of the area and radius in which it is prohibited to assemble is not in accordance with the purpose of public assembly.

To assembly publicly is part of direct democracy. It aims to urge the responsible public authority to solve a problem or provide for justice. The assembly needs to be held near public authority agencies. Therefore, the prohibition on assembling near the National Assembly, the Government House and courts, is a measure that reduces the bargaining power of the people. And the Act also imposes punishment by imprisonment for entering such areas even such if an assembly would not cause grievance to anybody or interrupt the public administration at all.

5. The right of the courts to order to cancel an assembly could be a problem on review of the government

The Act determines that the responsible public authority or the ” otice receiver” can submit a petition to a civil court or provincial court to make an order to cancel an assembly in case the assembly is illegal.

First Issue: It is problematic that the regulations cuts off the jurisdiction of the administrative court in favor of the civil and provincial court.

Second Issue: To let a court order to cancel an assembly is not a guarantee of judicial review in favor of the administrative power because the public authority still has the legal duty and legitimacy to take care of the assembly. If the Act aims not to let the public authority exercise too much power, it should just impose strict rules to apply the relevant laws clearly. […]

Third Issue: The measure puts the court in the opposite position to those who want to use their right to assemble freely. It could raise concerns if the court cannot retain its neutrality so far.

6. The period between appeal and the court’s order to cancel an assembly affects the purpose of the assembly.

The public assembly affects the opposite by demanding or pressuring it to solve a problem or to comply with an urgent request as much as possible. In general, people are able to appeal and ask the court to order a temporal injunction. During the appeal against the order to dissolve an assembly, the assembly is suspended. The situation could affect the strategy to pressure the opposite side, in particular when immediate action is needed. For instance in cases where employees are laid off and the employer closes his factory or does not pay any salary. The employees would not be able to pressure the employer because the employer might have already closed the factory and left with all assets.

The main problem is lack of participation

The six observations above contain issues which people have brought forward to request an amendment of the Act. The National Legislative Assembly was asked to postpone the enactment. But the requests were dropped. So the Act is in force even though it is flawed and not accepted by many people. To enforce a law which is unaccepted by many people will increase the injustice of the law. The people’s “participation” would let us reconsider the political conditions and adjust the law to be more compatible with the reality of the society.