There are two main components of a public assembly, according to the Public Assembly Act of 2015 or the ‘assembly prohibition law’. The first relates to the type of ‘activity’ according to Article 3 []
, which states the kind of activities that fall within the scope of this law and which must be reported in advance to the responsible officials before they are eligible for protection and facilitation for the assembly to take place. Thus, any type of activity not covered by this law can be held without having to notify authorities in advance.
The second relates to the location, under Article 7 []
, which prohibits assemblies in certain areas. Any assembly held in locations other than those in Article 7 are governed by the law and activities must be protected and facilitated according to the Act, on the condition that the assembly does not obstruct any entrances or exits or disrupt the work or services of certain places according to Article 8 []
. But in no way is assembly prohibited in the areas specified in Article 8.
Therefore, if any assembly does not involve any prohibited activities or locations as specified in Articles 3 and 7, protesters should be given protection and assistance to gather under this law. In particular, activities that are exempted from the scope of the law under Article 3 can be held without having to inform authorities according to the conditions and standards specified in this law.
Another important consideration follows and that is when “activity” and “location” are the main components under this law, there is no provision of the law that uses the word “politics” or any word with the same or a similar meaning or definition. What does this mean?
It means that there is no prohibition on “political assemblies” under the law; both “political assemblies” and “non-political assemblies” are guaranteed under this Act.
But why is it that in the past almost three years since the enforcement of this Act, the right to freedom of political assembly has disappeared from this law?
Participants in anti-military activities usually face charges for violating the Public Assembly Act
There are two main reasons. The first is NCPO Order No. 3/2015 on the Maintenance of Public Order and National Security. Article 12 states that “whoever gangs together or gathers for a political assembly, at any location, with five or more persons, shall be punished with imprisonment not exceeding six months or a fine not exceeding 10,000 baht, or both, unless permission has been granted by the Head of the NCPO or an authorized representative”. This order overrides the right to political assembly in the Constitution and the Public Assembly Law and uses the number of people as a criterion to establish that any assembly with five or more persons is a political assembly. This is narrow-minded and in conflict with the Constitution and the Public Assembly Law, since it does not take into account the circumstances of the protest.
This order allows authorities use their personal judgement and give definitions at their discretion since the order does not define the meanings of “gang together”, “political gang” and “political assembly.” Also, it does not obligate officials to take into account both the circumstances of the protest and the number of protesters. As a result, many cases in which an assembly was prohibited and various charges filed, officials would consider the “five or more persons” clause as the main factor in deciding whether the assembly is a violation of the order or not. They do not take into account whether or not they are actually a political assembly as long as they cannot find any clear definitions, rules or conditions. They just consider all assemblies with five or more persons as political assemblies.
The second reason is the mistaken political attitude in people’s movements that believes that the Public Assembly Law will protect and facilitate anyone that does not act as if they are in a political assembly, but will not protect or facilitate anyone who acts as if they are in a political assembly. This attitude causes barriers and splits between groups of people who are fearful that their non-political assembly will be seen as a political assembly and banned or sued, since they are not protected and facilitated under the Public Assembly Law and NCPO Order No. 3/2015.
The truth is, in a situation where the nation is being governed by a military dictatorship, the NCPO has created an overlap between the Public Assembly Law and NCPO Order No. 3/2015. This situation gives no importance to whether an assembly is political or not, or if an assembly falls within any components or definitions of political or not, since all assemblies will be assumed to be political. This is because in this situation, any assembly, whether political or non-political, is undesirable because it will destabilize security.
What should we do?
First, we should not just sit here and argue on which assembly is political or not political. A more important perspective is that a shared characteristic of both political and non-political assembly is that they build people’s power. That is a beautiful thing in a society where the people must live with their basic rights and freedoms under the control of the state and of capitalism, whose behaviour looks only to take advantage of, oppress and exploit the people at all times if the people do not create a strong mechanism to scrutinise and counterbalance them both politically and non-politically. Thus, we should stand firm on the principle that, whether an assembly is political or non-political, the people should be entitled to act within the framework of rights and freedoms under customary law. At least one should be able to cite the provisions of the Constitution and the Public Assembly Law. The NCPO Order No. 3/2015 is in conflict with both.
Second, we should not separate politics from the people’s problems. For the people’s gatherings to have the power to negotiate, pressurize and demand justice from the state and capital, the assemblies must touch on politics. Villagers’ problems must be protested and connected to the political problems that produce unjust development projects, policies and laws which create oppression and impacts in various areas.
Third, the right to freedom of political assembly must be returned to us under customary law. It must not be restricted by NCPO Order No. 3/2015.
Fourth, even if the Public Assembly Law were not superseded by NCPO Order No. 3/2015, the law itself has many problems. The broad definition of “public assembly” is beset by trivial rules and conditions to reduce the impact of a public assembly by requiring prior notification. If authorities are not notified, then it is an offense. After notification, authorities can respond with trivial conditions and standards that form an obstacle thwarting the assembly. This immediately becomes a complicated burden, because it is a matter of legal language that requires hiring a lawyer to deal with the paperwork. If the officials prohibit the assembly, it becomes even more complicated since then a lawyer will have to be hired to appeal the order.
These things create complications and expenses to the people, because there are many places/cases where people cannot find lawyers to aid them. This itself is an automatic violation of the people’s rights and freedoms. For this reason we shouldn’t surrender to this law if it is not amended, or otherwise together we should fight for this law to be abolished if the content, procedures, conditions and standards created in order to violate the rights and freedoms of the people are not corrected.
Why should we do this? It’s because freedom of assembly — which usually includes freedom of speech and freedom of expression before, during and after the assembly — is very important to our hearts and souls and to our humanity. It is very important, as in the epigram a respected person once said, “Forbid me to speak, I will type. Forbid me to type, I will write. Forbid me to write, I will think. If you forbid me to think, then you must forbid me to breathe.” [[4
]] That’s right, freedom of assembly is no different from this contemporary epigram, “If you forbid me to assemble, you had better forbid me to breathe.”
[] Article 3 of this Act is not enforced with respect to the following public assemblies:
(1) Assemblies for royal and state ceremonies;
(2) Assemblies for religious rituals or traditional or local cultural activities;.
(3) Assemblies for entertainment, sports, tourism or other activities for the benefit of the ordinary business of the assembly organisers;
(4) Assemblies within educational institutions;
(5) Assemblies or meetings according to the provisions of the law, or academic seminars of educational institutions or agencies with academic purposes;
(6) Public assemblies during a state of emergency or martial law and public assemblies for the purpose of campaigning during elections, but they must comply with related laws.
[] Article 7. No public assembly shall be held within a 150 metres radius of the Grand Palace, royal palaces, palaces of the heir to the throne or of a Prince or Princess, royal residences or royal mansions or of a place where the King, Queen, Heir to the Throne, Prince or Princess, or Regent stays or resides, or of the residence of royal visitors.
No public assembly shall be held within the area of the Parliament, Government House and the Courts, unless in an area specifically set aside for public assembly.
Courts in paragraph 2 refer to the Constitutional Court, Courts of Justice, Administrative Courts, Military Courts and other Courts according to the laws on courts.
In cases where it is necessary for the purpose of maintaining public safety and public order, the Commissioner-General of the Royal Thai Police or an assigned delegate can announce the prohibition of public assembly within a 50 metre radius of the places in paragraph 2 taking into consideration the number and behaviour of participants.
[] Article 8. A public assembly must not obstruct entrances or exits or disrupt the work or services of the following places:
(1) Offices of state agencies;
(2) Airports, harbours, train stations or public transportation stations;
(3) Hospitals, educational institutions and places of religion;
(4) Embassies or consulates of foreign states or international organisations;
(5) Other places as determined by the Minister.
[] Sombat Boonngamanong said this while detained by the military at Border Patrol Police Region 1, Pathum Thani Province, for tying red cloth in the Ratchaprasong intersection area after the 10 April 2010 and 19 May 2010 incidents where more than 100 people were killed on the streets of Bangkok - author.