One of the most disturbing issues in Thai society today is the number of children (under 18 years of age) who have been arrested and prosecuted for participating in political demonstrations. The most obvious incidents are the protests at Din Daeng intersection during the past few months. Do children have the right to participate, especially from the angle of freedom of expression and freedom of peaceful assembly, and what are the parameters?
Children (indeed, all persons) are born with rights of freedom of expression and freedom of assembly. These rights are guaranteed not only by international law but also national law -- including the charter.
In this respect, much quoted and used legislations are the United Nations' Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR). Various guidelines or "General Comments" (GC) -- especially number 34 and number 37 from the monitoring body of the ICCPR's Human Rights Committee have been used to interpret freedom of expression and freedom of assembly. Indeed, section 26 in the present constitution is resonant with the ICCPR's GC 34 and GC 37.
Those rights nevertheless are not absolute and therefore subjected to be constrained under some circumstances. For instance, under the treaties mentioned, the right to freedom of expression cannot be used to defame others; also it can be limited by reason of national security and public health. The same applies to the right to freedom of assembly which must be enjoyed peacefully, but subject to national security and public health too.
To impose boundaries on individual rights and freedom, the state, according to the mentioned treaties, must fulfil three justifications. First, the state must show the imposed restriction is not anti-democratic and is lawfully mandated in the way that it is consonant with international standards on human rights. Second is the condition that the authorities have to prove that it is necessary to limit human rights and to the extent that the survival of the state is at stake if a state of emergency is imposed. Third is the requirement that the authority must show the restriction is proportionate to the circumstances. Indeed, these guidelines are also found in the current Thai constitution, especially in Section 26. Nevertheless, the current situation in Thailand does not satisfy those criteria. Then, the emergency decree used by the country does not provide adequate justifications.
Why then is the situation of children in protest so disconcerting today? According to information from civil society in Thailand, there were some 1,800 demonstrations in Thailand in 77 provinces from July 2020 to August 2021. At least 1,100 individuals have faced lawsuits for participating in these gatherings. They include around 180 children. Prosecutions have been initiated against some 115 children in August till September of this year, and some ten children, the youngest aged 14, are facing lese majeste charges. The youngest person charged for violating the country's emergency decree is 12 years old. A number of children have also been injured during the demonstrations, and this is linked with the issue of use of force, including rubber bullets, and less-lethal weapons, such as tear gas and water cannons, directed at demonstrations.
Key questions emerge from this sad state of affairs. What are the permissible means of crowd control through the lens of weapons? United Nations (UN) guidance on the use of weapons relevant to Thailand include the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and the UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement. The general principle is that the use of force must always be a measure of last resort and other means must be explored first. De-escalation is essential and there should be dialogue first. Moreover, the presence of doctors is needed where there may be violence.
The latter document guides as follows: "The use of firearms to disperse an assembly is always unlawful. In situations where some force is necessary, only less-lethal weapons may be used. In such situations, less-lethal weapons that can be individually aimed shall target only individuals engaged in acts of violence."
On tear gas, this is the advice: if it is to be used -- at a distance -- it should be targeted at groups of violent persons and fired from a high angle. It should not be used in confined spaces. Firing of tear gas is particularly dangerous and objectionable when the authorities encircle a group of demonstrators confining their space, a practice known as "kettling". Did this happen at Din Daeng?
There is also the issue of how are children to be treated if arrested and what the preferred judicial and legal measures are if there is a subsequent prosecution. There are currently civil society reports of children being arrested and not having access to lawyers and parents from the time of arrest, as well as other alleged malpractices on the part of the authorities. The main law in regard to children who are accused of offences is the Juvenile and Family Court and Procedure Act and this needs to be applied well to ensure juvenile justice. Basically, an arrested child must be taken to a Juvenile and Family Court within 24 hours of arrest. The preferred option to deal with such children is to use non-custodial measures and divert them from the detention system. There should be also a multidisciplinary team to assist the child.
A final reflection is that the various draconian laws of the country such as the emergency decree and various provisions of the criminal law which constrain freedom of expression and assembly should not be applied to children. Precisely because the circumstances concerning the various protests deserve transparent review, the country should set up an independent investigation to report on the situation and aim for a healing process. In the meantime, the National Human Rights Commission should not wait; it should set up its own investigation of the situation of children in protest as a check-and-balance against abuse of power.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He was formerly UN Special Rapporteur on the Sale of Children and Chairperson of Thailand's National Sub-committee on Child Rights.