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Law banning assemblies in a military state (Part 1)

If there is still anyone who believes that the law banning assemblies or the 2015 Public Assembly Act is a law created for the protection of protesters, then they are probably completely deaf and blind, and cannot be compared to normal villagers who see the world more according to reality, like the gentle reflection of one villager from the area that opposed the gold mine in Loei Province who interestingly said, “Before the NCPO staged the coup, capitalists or companies were the ones who sued us, but after the NCPO coup, it’s the state that sues us.”
That is the reflection of reality in the place where seven women were persecuted by the state through the law banning assemblies and the criminal code. It started when members of the Khao Luang Subdistrict Administrative Organisation (SAO) from the northern part of the subdistrict filed complaints, the police built a file and the provincial prosecutor filed charges in court exactly on International Women’s Day in 2017. The charges were 1) organising an assembly without notifying authorities, 2) participating in an illegal assembly, and 3) forcing and coercing 16 members of the Khao Luang SAO, Wang Saphung District, Loei Province, from villages in the northern part of the subdistrict, during a council meeting by forcing and coercing the meeting not to pass a resolution allowing forest areas and land reform areas of ALRO (Agricultural Land Reform Office) to be used for a gold mine of Tungkum Limited.
Khao Luang environmentalists report to the police after being accused of violating the Public Assembly Act
There should soon be new cases under the law banning assemblies. They would be similar cases, but different acts and different times as a result of the many Khao Luang SAO council meetings over the past three years to consider permission for the company to use the forest and ALRO areas for gold mining; villagers from the Khon Rak Bankoet (lit: People who love their hometown) group from 6 villages participated in every meeting, and there was confusion and disorder at almost every meeting, since Khao Luang SAO members from the northern villages are obstinate and stubbornly pushing for permission for forest and ALRO land to be used for gold mining, despite knowing that doing so will cause conflict and severe impacts on villagers in the southern villages of the subdistrict which are near the mine.
The words in quotation marks don't mean the capitalists sue the villagers any less, but it means the villagers face more lawsuits because the capitalists have supporters and patrons, which is the state that has come out of hiding.
The reason the state has brought more cases against the villagers is because the NCPO military dictatorship announced the enforcement of the Public Assembly Act which, instead of being a law to protect, facilitate, promote and support the right to freedom of expression of the people, has become a law that is used to protect capitalists.
This Act has obstructed the rights to freedom of expression, of assembly and of participation of the people in developing projects, policies and laws together with the state by prohibiting almost all forms of activities that form gatherings of the people, such as submitting letters, holding meetings, ceremonies, merit-making rituals, marches, etc. These activities are interpreted as assemblies under this law. People must notify the authorities (gathering without informing the authorities is also an offence). On principle, it should be simply notification, but it has become a request for permission, which, most of the time, is not given or if given, there will be so many conditions attached that the assembly loses the power to pressure and negotiate with the state.
This resulted in the villagers in many areas who had stood up to oppose against various unfair development projects, policies and laws being persecuted under this law. In addition to the case of the villagers who oppose the gold mine in Loei that was given above, there are many other places where cases were brought under this law. For example,
(1) twenty seven villagers from the area of a gold mine in Pichit Province were prosecuted for assembling and obstructing a public road, wearing hats or covering their faces to conceal their identity, organising a rally but not controlling or taking care of protesters and failing to notify the authorities of the assembly. They were also charged with trespass and coercion, under the criminal code, for obstructing vehicles carrying gold ore belonging to Akara Resources Public Company Limited that were smuggling ore on public roads.
(2) Nine villagers and NGO development workers were prosecuted by the state for assembly without permission and trespass onto a stage to hear opinions on the Environmental Impact Assessment (EIA) report on Pakbara Deepwater Port, Satun Province, during night-time. (3) Seven people who had gathered to protest against the relocation of the Khon Kaen Bus Terminal were jointly charged by the prosecutor for assembling without notifying the authorities 24 hours in advance and obstructing entrance ways or disrupting services at the public bus terminal, at the premises of a state agency, etc.
This still doesn’t include the large number of threats that did not become lawsuits. It means that the people can’t stand up and protest. Just the cases mentioned above are enough to clearly show that this law was not aimed at protecting protesters. If it really aimed to protect protesters, there would be no protesters who have to face prosecution from the state like this. On the contrary, since this law came into force, there hasn’t been a single case where an official was prosecuted for neglecting their duty to protect protesters. In fact, this law has been used as a tool to persecute the people.
With this law, the NCPO military dictatorship was able to move forward large development projects rapidly without scrutiny and questioning from the people.
Going by the content, this act contains many features that obstruct the right to freedom of assembly of the people, as follows.
First, Article 7 allows the Commissioner-General of the Royal Thai Police or any assigned delegate to have the power to declare any assembly prohibited within 50 metres of parliament, Government House, and all courts. Even though the law states that the Commissioner-General of the Royal Thai Police or any assigned delegate must take into consideration the number of protesters and the behaviour of protesters before allowing protesters to gather around these locations or not, the discretion is broad and rests only on those who have the authority of the state or administrators who mainly see the situation and various sensitivities only from the point of view of the state without any set standard criteria, conditions or methods, except for the 2015 Public Assembly Act Handbook of the Royal Thai Police which has no legal status, and is simply just a guide for officers for managing assemblies and approaches to investigating and prosecuting cases arising from assemblies.
Second, Article 8 intentionally makes assemblies impossible (or possible but only as protests that lack negotiating power) on the premises of “state agencies” everywhere and at every level, from the central government to the local level, including government offices, state enterprises, government organisations, public companies, local administration organisations, constitutionally mandated organisations and other state agencies, by using the obstruction of entrances and exits or disruption of the work or services of state agencies as a justification or injunction to stop assemblies from happening.
Third, Articles 10 and 11 require people to seek permission for an assembly, not just to inform authorities of a gathering 24 hours in advance as is generally understood. That is, protesters are required to notify authorities and reveal detailed information; the protesters may not disguise or hide any rally plans that will create pressure and negotiating power on the state at all. For example, they must notify officials of the objective, date, duration, location, number of protesters, requests to use sound amplifiers with the amplification level and volume indicated clearly, whether the rally will be at one place or move to other locations and if so, where, etc.
The officials who are notified are able to prohibit any assembly from taking place if they view that it may violate Article 7 or Article 8 by taking place on the premises of parliament, Government House, or any court, or violates the 50 metres rule ban, or obstructs entrances or exits, or disrupts the work or services of state agencies, airports, harbours, train stations or public transport terminals, hospitals, educational institutions, places of religion, embassies or consulates of foreign states or the offices of international organisations and other places as specified by the minister.
Although these things should in principle be at the discretion or decision of those giving the notification, the principle of “prior prohibition” is used and now there is no public space left for protesters to hold rallies to make demands, negotiate and pressure the state or private sector into showing political responsibility for any public policy at all.
These two Articles reflect the bias, inequality and injustice of the state by choosing to protect principally the notified officials and competent officers by halting assemblies in advance while there is an order that prohibits assemblies. Appeals and consideration of appeals are even worse, since if the person notifying about the protest disagrees with the assembly prohibition order, they may submit an appeal to a superior officer who is one rank higher than the officer receiving the notification, which would be the police, not the court, with that appeal decision being final.
Fourth, Article 14 requires protesters to inform authorities to seek permission according to Article 10. Failing to comply is an offence. This includes the person notifying about the protest not complying with the order of the notified officer or the officer issuing an order banning the assembly according to Article 11 or holding a rally without informing authorities at least 24 hours in advance, but notifying authorities afterwards along with an extension request then receiving notification that there is no appropriate reason to allow the assembly according to Article 12. It is then considered an illegal public assembly.
Fifth, for a public assembly it is important to use sound to control, urge, inform and order the mass, and use sound as a tool to pressure and negotiate with the state, but Article 15 (7) instead prohibits the use of sound amplifiers using electrical power exceeding the size or volume specified in an announcement by the Commissioner-General of the Royal Thai Police. When viewed in detail, this announcement under this Act [[1]], allows the use of sound amplifiers of no higher output than 115 A-weighted decibels (dBA) in different kinds of assemblies. This level is close to the sound level of road-drills, or if a little louder than this, the sound of thunder. But it’s not as if protesters are allowed to use sound at 115 dBA all through the assembly. In an all-day or 24-hour assembly, the average volume must be 70 dBA, which is as loud as a washing machine. Not only that, the announcement also specifies that the volume which is disruptive to others is 10 dBA, the same loudness as normal breathing.
Sixth, this law creates an opportunity for officials to use violence to break up rallies in 2 cases. The first case –assemblies can be dispersed while waiting for a court order to end the assembly. Article 21 creates an opportunity for officials to break up an assembly while waiting for a court order, in the case of an illegal assembly according to Article 14, or not ending the assembly on the time period notified to officials according to Article 18, or when rally organisers or participants violate Article 7 or do not comply with Articles 8, 15, or 16 or move the rally without prior notice according to Article 17. When it is announced that protesters must resolve the issues within a given timeframe but they do not comply, authorities may start the process by petitioning the civil court or the provincial court with jurisdiction over the site of the assembly for an order to end the rally. While waiting for the court order, authorities have the power to act according to the Public Assembly Act Handbook or approaches to dealing with assemblies, by having officials avoid the use of force, but in cases where the use of force is unavoidable, the force and crowd control equipment may be used as necessary.
There are 48 kinds of crowd control equipment, according to the Announcement of the Prime Minister’s Office on Crowd Control Equipment for Public Assemblies, announced on 3 November 2015. Many are dangerous. They can be used only as far as necessary at the discretion of officials, whether rubber batons, tear gas, shotguns for rubber bullets or tear gas, stun guns, etc.
The second case –assemblies can be dispersed after a court order to end the rally has been issued, after protesters refuse to end the rally in the timeframe specified in the court order under Article 22. When the announced time has passed for protesters to leave the controlled area according to Article 23, if there are still protesters present in the controlled area without permission from the officials, they are held to have committed a flagrant offence, and can be arrested, searched, and goods used or possessed for the rally may be seized or removed, and the assembly dispersed according to Article 24.
From everything mentioned above, along with the punishments that include both fines and imprisonment which are rather severe for persons and groups/organisations of people that wish to assemble to complain about and oppose injustice in various cases, the state gets to use this law to control peace and order of society to the point where there can no longer be any movement with the power to negotiate and pressure the state and private sector in the current era. However, it is found that the NCPO military state is still not very satisfied with this law since this law, which specifies that the police have the main duty, as the notified officials, competent officials and those who control the situation, still lacks a perspective on “security threats” like the military, who very much like to use intrusive operations, monitoring and threatening the daily life of the people. It can be seen that in almost all cases where this law is enforced, there will be military officers interfering regularly, along with threatening protesters beyond the provisions of this Act, by referring to NCPO Order No. 3/2015 on protecting peace and order and national security, which bans illegal assemblies or any political gatherings of five or more persons.
This is brought in to make even heavier threats against the people. The law banning public assemblies is enforced only in locations where permission to hold assemblies has been sought, but the Order allows the military to intervene in the enforcement of this law by intruding into protesters’ residences to search or make threats so that they are intimidated into changing their minds or escaping, refusing to come out and participate in assemblies on the planned date and time.
This article is not intended to cause misunderstandings that the enforcement of the law banning assemblies by police is better than the military in any way. The content of this law, no matter who enforces it, is completely evil because it mainly aims to protect the notified officials, competent officials and those controlling the situation. It is just that it must be shown that the enforcement of the law banning assemblies in the time of this NCPO military state is much worse than the legal provisions in this Act, since they also use NCPO Order No. 3/2015 and other related security laws to decide on whether to allow any gatherings by the people.
There is another related matter, which is that even though on principle the notified officials, competent officials and those controlling the situation must use their discretion and judgement as appropriate for the enforcement of this law on protesters, without abusing their authority, these things are also affected by other factors. These are carrying out one’s duty not in conformity with the “provisions of the law” and “state power”. Especially in the time of the NCPO military state where the notified officials, competent officials and those controlling the situation according to this Act, who are mostly police that have to work for the military, may use discretion and judgement that exceed or are unrelated to the provisions of the law. This could be due to the personal character and the organisation of the person using state power who must try, using every method, to threaten the people into not participating in assemblies that can create the power to negotiate and pressure the state.
Arguments concerning whether this law truly protects protesters or not, cannot be discussed at a meeting table and principles and opinions cannot be talked about from stages or documents any longer. There is only one way, and that’s to risk our lives and bodies by coming out to rally in the streets and public spaces to push forward the principles as far as possible, to see if the protection of protesters is possible in the midst of a situation that constricts the right to freedom of assembly to a point that is indescribable in this era.
Footnote
[[1]] Royal Thai Police Announcement on Limiting the Volume of Sound Amplifiers in Public Assemblies 2015, announced on 23 September 2015.