1. The act specifies many strict conditions for participants of an assembly, before and after the public assembly, for instance, the participants need to notify the assembly to the head of a police station 24 hours in advance of the assembly. There must be an “assembly organizer” in each assembly. The Act further prescribes the duties and responsibilities of the assembly manager and the participants in case any participant violates the law. Moreover, if an assembly is not being notified in advance and if that the respective authority did not grant a waver, the assembly will be considered illegal (Section 14). Participants in such an assembly commit a criminal offence that is punishable with a term of imprisonment not exceeding three years (Section 21, 24 and 33 together) even if in reality such assembly is actually peaceful and unarmed and therefore protected by the constitution. It can be seen that the Act prioritizes “procedure” as laid down in the requirement of advance notice in the same way as it prioritizes “substantive contents” which is the freedom to assemble peacefully and unarmed according to constitution. However, procedural rules and substantive contents should be valued differently. This could raise the question of unconstitutionality in the future.
2. According to my remarks under 1., it can be seen that the law aims to regulate large- scale assemblies with a lot of participants. The drafters considered the political assemblies within the last 5 years. Each assembly was occupying the streets quite long. It caused riot, violence as well as social and economic disruption. However, the drafters did not consider assemblies like “Flash Mobs” which are gatherings of a small amount of people who do certain activities together within 20-30 minutes such as lighting candles, reading poetry, or playing music. The activity “Flash Mob” is a kind of entertainment activity or cultural activity. Such activity should not need to have any “assembly organizer”. It is open to question whether a person who posts information on social media in order to ask people to join a flash mob at a particular date, place and time could be an ”assembly organizer” according to section 4 or not, or whether people who share such information are co- assembly organizers.
￼If yes, this would lead to certain legal duties and responsibilities. The Act should make an exception for cases in which a public assembly has very little participants and takes place at a time which would affect the usage of public space by third parties only to a minor extent because the procedural requirements would cause unnecessary burdens for people who want to organize or join a small assembly.
3. The duty to notify the assembly 24 hours in advance without any exception cannot be reconciled with the nature of “public spontaneous assemblies”. On the one hand, the drafters might have thought that the police can consider wavers in particular cases which would relieve the participants from criminal liability. But on the other hand, it could be considered that the Act illegitimately limits the freedom of expression of the participating people.
4. The last observation, which is my deepest concern, is that the Act assigns the Courts of Justice to work as administrative authorities. Section 21 and the following sections provide that, when the authority orders the participants to end the assembly but the participants do not comply with the order (the reason of such order might be that the participants did not notify 24 hours in advance and that they have not been granted a waiver which the participants might think is unfair), the authority can file a motion to the court and ask the court to give an order to dissolve such assembly. Even though the court order can be appealed to a higher court, the order of the appeals court is final.
From an academic standpoint, we are not sure whether such a court order is an administrative act or a judicial act, and whether the wording “is final” really implies a final decision in exercising administrative power or not. If it is not final, the participant can bring the case to the administrative court. If it is a “final” decision from the judiciary, this could result in the problem that judicial power cannot be reviewed. But I feel most concern with regard to the wording in section 22 subsection 2. I think that it does not allow the court to use discretion so much.
Therefore, the court is bound to order in accordance with the order of the authority in every case. And even the court is actually called to judicial review, the Thai courts of justice have very few experience with administrative cases, so that the courts of justice might not be the appropriate courts to decide these matters. I wonder whether the drafters wanted the courts of justice to be in “the first line” to deal with the pressure from the administrative authorities.