On February 22, 2020, the Student Union of Thailand organised a flash mob called ‘There is no Justice in this Country’ at the Pridi Courtyard in Thammasat University, Tha Prachan. Initially, the rally was a response to the dissolution of the Future Forward Party. However, this developed into a protest against dictatorship; a call for constitutional amendments an expression of dissatisfaction towards the economy. Following this event, the students in many institutions held rallies continuously for more than a week and with the possibility of organising more in the near future.
During this period, both the organisers and participants of such rallies are beginners who are organising or participating for the first time. Consequently, questions concerning the conduct of rallies began to arise, prompting iLaw to compile the answers to 10 common questions for anyone wishing to attend or organise a rally. Such questions shall be answered in here.
1. To check ID cards, such police must have a rank of second lieutenant or higher
The law requires persons aged 15 years and over to carry their ID cards at all times. If it is discovered by a ‘Card Inspection Official’ that someone is not carrying their ID card, the official can fine such persons for 200 baht under the Identification Card Act B.E. 2526. However, under the Order of the Ministry of Interior No. 1496/2561 regarding the appointment of card inspection official, not all police officers have the authority to check ID cards.
Consequently, the qualifications for a ‘Card Inspection Official’ are as follows:
- The administrative officer or senior police officer, deputy district chief and police officers with the rank of sub-lieutenant or equivalent is a card inspector within the jurisdiction of duty.
- The administrative staff, the police, members of the Volunteer Defense Corps and the Internal Security Operations Command (ISOC) staff operate in accordance with the checkpoints that are legally established as card inspection official within such checkpoints.
According to Article 1, a ‘Card Inspection Official’ with the authority to request ID cards in general areas must be a police officer with the rank of second lieutenant or higher, whereas non-commissioned police officers have the authority to do so at legal checkpoints only.
Therefore, if an officer asks for our ID cards, we can request to see their police identification. By doing so, we can check whether they are a real police officer, whether their rank is of a Lieutenant and higher and also their reasons for requesting our ID cards. This is especially useful for officers who are not in uniform.
Although officers may have the authority to inspect ID cards, the law does not entitle such officers to take pictures or confiscate the cards. This is because our ID cards consist entirely of personal data, and the use of copies must contain a signature as certification.
As the law does not provide authority to do the aforementioned, the ‘card inspection official’ cannot do so as it is considered a violation of privacy rights. If confronted with a situation in which an officer attempts to confiscate or take a picture of an ID card, one can question such officer on the legal grounds in which they are trying to exercise.
Even with the rights to inspect the rally participants’ ID cards, officers should not do so unreasonably. Within this context, an ‘unreasonable’ inspection of ID cards would be an attempt to disturb or prevent people from exercising their freedom at the assembly. For example, using this inspection to disrupt someone who is writing a sign or is engaging in a speech.
2. Advance notification is not required for activities organised in any educational institutions
Section 3 of the Assembly Act stipulates that this Act shall not apply to public assemblies organized as follows:
- Royal ceremonies and state ceremony assembly.
- Assemblage for performing religious rituals or activities according to tradition or local culture.
- Rallies for exhibitions of entertainment, sport and tourism promotion or other activities for the commercial benefit of the organizer.
- Rally within any educational institutions.
- Assemblies or meetings required by laws/Academic seminars.
- Public gatherings for election campaigns.
Therefore, rallies conducted in educational institutions are not regulated under the Assembly Act, and so organizers do not have to notify the local police of such assemblies.
3. Persons under 18 can participate in rallies despite being unable to vote as everyone is entitled to freedom
Article 44 of the 2017 Constitution states that ‘Persons are free to participate in a peaceful and unarmed assembly.’ Under the Civil and Commercial Code, article 15, personality begins with the full completion of birth as a living child and ends with death
Therefore, all citizens have the freedom to assemble for rallies without age restrictions.
4. The police cannot terminate rallies conducted in educational institutions
Rallies conducted in the university areas are not subjected to the Public Assembly Act. Accordingly, police officers do not have the authority to order participants to disperse under the Assembly Act. If a situation were to arise where participants commit criminal offences such as the destruction of government property or physical assault, officers have the power to stop the situation and arrest only the said person or group while the assembly can proceed on.
However, such actions do not reflect the intentions of the whole assembly unless the organizers had influenced other protesters to commit such criminal offences.
5. In educational institutions marching are not subject to time restrictions but outside marching is prohibited after 6:00 pm
The Public Assembly Act stipulates a time prohibition to march under Section 16 (8): ‘Do not march or move the rally between 6:00 pm to 6:00 am of the next day unless authorised to do so by the official in charge of the rally.’ Therefore, when engaged in rallies subject to the Rally Act, participants will not be able to march during the prescribed time unless permitted to do so by an official.
As the rallies conducted in university areas are not regulated by the Public Assembly Act, the procession of movement will not be subject to time restrictions.
6. Educational institutions’ orders to prohibit rallies may be unconstitutional
In this regard, the hierarchy of law must be used to explain. Under this principle in the context of the Thai legal system, ‘The law which is ranked lower must not contradict the law at a higher level.’
The hierarchy of law is as follows:
- Constitution
- Organic law
- Act / Government Decree
- Royal Decree
- Ministerial Regulations
- Regulations of the Ministry / University regulations
According to the sequence, ‘university regulations’ or ‘school regulations’ are ranked the lowest in the hierarchy. Therefore, such regulations can only be enforced if they are not contrary to higher laws such as the constitution or act.
Therefore, when considering the matter of the ‘freedom of assembly,’ the 2017 constitution in Article 44 must take precedent. This constitution stipulates that all citizens have the freedom to engage in a peaceful and unarmed assembly. The restriction of such assemblies must rely on the provisions of law with a specific purpose which shall be restricted only when it is necessary and proportionate to the restricted freedom.
However, when considering the following level of law which is ‘Act,’ the Public Assembly Act 2015 is applicable. The key principle of this act is that notification must be provided 24 hours in advance if an assembly is to be conducted. Once notified, the assembly shall commence without the need for permission. In other words, rallies conducted in educational institutions are regulated mainly by constitutions as long as such rallies are peaceful and unarmed.
If the regulations of the university or school stipulates the requirement for permission to conduct a public assembly, such regulations will be contrary to laws in higher level. This includes the Public Assembly Act 2015 and the constitution. Thus, following the principle of the hierarchy of law, whenever the lower level of the law conflicts with a higher level, such laws cannot be enforced.
In conclusion, under the provisions of the constitution and Public Assembly Act, rallies conducted in educational institutions cannot be restricted unless such assemblies were not peaceful, involved weapons or other limitations under the law concerning security. Furthermore, administrators of educational institutions do not have the legal grounds nor authority to prohibit the conduct of rallies under the law.
If an educational institution issues an order to prohibit students from organizing activities and punish them for any violations, and affected people disagree with such orders. The authorised institution to consider which order is lawful or unlawful or unconstitutional is the Administrative Court.
7. Police officers cannot check ID card numbers with the grounds of screening for disease
Under the Communicable Disease Act 2015, the law does not empower police officers to screen for diseases or control any disease at all.
Therefore, the police are unable to claim any authority regarding the control of contagious diseases.
8. The use of an amplifier requires permission from authorities
Under the Control of Advertising by Amplifiers Act, B.E. 2493, as stipulated in Article 4, “Those who will advertise using an amplifier with electric power must obtain permission from the authorities before. They may advertise once permission is granted. “
If persons do not comply, they will be fined a sum not exceeding 200 baht per place.
9. Wearing hygienic masks to rallies is acceptable
The Public Assembly Act, Article 16 (2) prohibits the concealment of oneself intending to hide one’s true identity, except when dressing in accordance with tradition.
Hygienic masks are worn for hygiene reasons and not to conceal or camouflage one’s identity. Therefore, it is not considered a violation of the law. Similarly, masks can be worn for some kind of expression in a campaign as the intention is not to conceal one’s identity.
10. Police cannot restrict sign displaying or content written on. If any message violates the law, the person will be prosecuted individually
The Public Assembly Act defines the authority of the official in charge of the rally. Therefore, the superintendent of the local police station hosting the gathering under Section 19 must comply with the following duties:
- Facilitate the public to use public spaces where the assembly is
- Security duty, facilitate or relieve the distress or annoyance of others who live near to the area of the rally
- Security duty or convenience for the participants at the rally
- Facilitate traffic and public transportation in the area of assembly and nearby places so that other people are least affected by the assembly.
To be able to perform all the aforementioned duties, the local police commander who is a public assembly official has the power to specify conditions for the protestors to follow. However, such conditions must be for the benefit of the performance of all four of the above duties only.
The Public Assembly Act does not provide power to police to oversee the content of the rally. Therefore, they cannot claim authority under the Assembly Act, Article 19 (5) to prohibit the writing or display of signs in the assembly. If officials consider the message of any sign to be a criminal offence, they have the authority to arrest and prosecute persons who responsible for such signs on a case-by-case basis but do not have authority to disperse or order to disperse the assembly.