NCPO Head Order No. 3/2015 and Public Assembly Act: the systematic limitation of freedom

“Article 12. Political gatherings of 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 is the content of Article 12 of Order No. 3/2015 of the Head if the NCPO which prohibits political gatherings. It became the excuse for the state to interfere or limit the freedom of expression since its announcement more than 3 years ago. No less than 421 people have been charged with violating this Order. Most of the content that has been prohibited had a significant effect on the absolute power of the NCPO, such as expressing an opinion on the draft constitution for the referendum and calling for the NCPO to hold elections by the group of People that Want an Election), etc.
 
In the past, NCPO Head Order No. 3/2015 prohibiting political gatherings has been used in conjunction with the 2015 Public Assembly Act that was promulgated later on. Even though according to legal principles, if there is a new law in force dealing with the same issue as an existing law, the existing law must be by implication cancelled, no court has announced the cancellation of NCPO Head Order No. 3/2015 . In fact, it has all this time been used systematically as an important “weapon” to limit freedom of expression along with the Public Assembly Act.
 
Data collected show three trends in enforcing the laws concerning assemblies by officers.

Citing the Order to cut off the exercise of freedom

NCPO Head Order No. 3/2015 has become a tool that state officials use to “warn” anyone who uses freedom that if they insist on using their freedom to express their opinions on these matters, they may be within the scope of violating NCPO Head Order No. 3/2015.  An atmosphere of fear was created amongst those exercising freedom that expressing their opinions may result in a lawsuit that gives them “problems with the military” or cause trouble in the future, leading some people to choose to stop expressing their opinions and some to try to find other ways to continue their fight against power. Examples follow.
 
First, on 25 April 2015, at the ceremony to open the Uncle Nuamthong Praiwan meeting room , officers requested the date of the event to be postponed since permission to host the event had not been sought and the name of Uncle Nuamthong is one of the political symbols that risk violating NCPO Head Order No. 3/2015.
 
Second, on 28 September 2016 in a ‘New constitution, what’s up?’ conference, soldiers from the 1st Cavalry Regiment King’s Guard and police from Pathumwan Police Station called the Bangkok Arts and Culture Centre (BACC) and sent a letter informing them the event may be within the scope of NCPO Head Order No. 3/2015 and asking the organiser to request permission in advance. When the organiser submitted an explanation in writing, the military did not consider it in time. So the BACC had to cancel the event, resulting in the organiser changing the format of the event to a recording of a public stage programme at Thai PBS.
 
Third, on 19 September 2016, in the ‘Singing for Uncle’ activity on the occasion of the 10th anniversary of the coup, police came to negotiate, claiming their authority under NCPO Head Order No. 3/2015 and the Public Assembly Act. They prohibited the activity and asked all artists to leave the area, which they all consented to, and they immediately left.

Using the NCPO Head Order to resolve instances of enforcing the Public Assembly Act incorrectly

Enforcement of NCPO Head Order No. 3/2015 and the Public Assembly Act together led to the arbitrary choice of a law to prohibit assemblies. State officials are able to choose citing any law that facilitates their goal of obstructing narratives that the state doesn’t want to listen to. It also reflects the misunderstanding of state officials in the enforcement of the Public Assembly Act, so they have to refer to NCPO Head Order No. 3/2015 in correcting arrests that do not comply with what the law prescribes, as can be seen from the protest against the coal power plant in Krabi. 
 
On 17 February 2017, after the coal power plant protestors moved from the area around Government House, officials filed a complaint with the Civil Court, requesting the cancellation of the assembly under the procedures of the Public Assembly Act. The next day, officials arrested, one after the other, five core members, 12 participants and 2 Rangsit University students without charge or explanation of their authority to make arrests. The next day, 19 February 2017, the military made a statement claiming the protestors had violated the Public Assembly Act for gathering outside the area of the Office of the Public Sector Development Commission (OPDC) as they had earlier requested permission. 
 
However, the Public Assembly Act authorizes officials to make arrests only when a court issues an order to stop the assembly and announces the assembly area as a controlled area; it does not state that officials have the authority to arrest people and then take them inside military camps for talks. When lawyers made inquiries with military officers at the 11 Military Circle, which was where the core members were held, they were notified that the arrests were carried out under the authority of Article 44 (NCPO Head Order No. 3/2015), which allows the arrest and detention of those who violate orders or announcements of the NCPO.

Using the NCPO Order with a broader scope than the Public Assembly Act

According to Article 3 of the Public Assembly Act, enforcement of the Act is exempted within educational establishments and academic assemblies, meetings or seminars of educational institutions or agencies with academic purposes. However, it appears that in many cases state officials have used NCPO Head Order No. 3/2015 to restrict activities in educational establishments which the Public Assembly Act does not authorize, such as accusations of violating NCPO Head Order No. 3/2015 made against the participants of a Thai studies seminar at Chiang Mai University and the conference on Joint Consideration of whether to Vote Yes or No on the Draft Constitution before the Referendum by the civilian seminar group “citizen forum” at Dusit University. The University cancelled the event, because of fears that it would be within the scope of a political gathering according to NCPO Head Order No. 3/2015.
 
In addition, it was found that claims of authority under NCPO Head Order No. 3/2015 have been made in a confusing way along with court investigations under the Public Assembly Act, as can be seen in the activity “‘Pour out your hearts for Thepha’. About 80 participants went by foot from Thepha District, Songkhla Province, to Rajamangala University of Technology Srivijaya, Mueang District, Songkhla Province, to submit a letter of protest concerning a coal power plant to Gen Prayut Chan-o-cha. On 27 November 2017 at around 12.00 noon the Songkhla Civil Court was investigating whether the march had acted correctly according to the Public Assembly Act or not, and as long as the court had not ruled that the gathering was unlawful, the police had no authority to use force to break up the march.  But in fact, when approximately 80 Thepha villagers reached the vicinity of Songkhla Rajabhat University by foot, they were faced with a police barrier and were unable to pass.
 
Ekachai, one of the protestors, negotiated with Pol Col Prapat Srianant, Deputy Commander of the Songkhla Provincial Police, and Col Uthit Anantananon, Deputy Commander of the 42nd Military Circle. In one part of the talk, Pol. Col. Prapat told Ekachai not to allow the villagers to continue walking to the city of Songkhla since it was an area where a special person was coming. If the villagers entered, there may be disorder . Col Uthit’s explanation was that “Article 44” had been used to declare the area as a special area. It can be understood that he meant NCPO Head Order No. 3/2015, which came into effect through using the power of Article 44 of the Constitution.

In the case of the ’We Walk friendship walk’ activity on 20 January 2018, the protestors had informed the authorities beforehand and acted completely within the terms of the Public Assembly Act, but police still used force to obstruct them, not allowing the protestors to leave Thammasat University, Rangsit Campus, on foot. The police claimed that the assembly had characteristics that made it political and a violation of NCPO Head Order No. 3/2015. Therefore, it was an unlawful gathering and continuation of the activity was prohibited.  

The pro-election protest at Thammasat University on 24 March 2018 (Photo from Banrasdr Photo)