International Relations & Co-operation
Vienna Convention on Road Traffic, 1968
On 1 May 2020, Thailand has become an official party to the Convention on Road Traffic 1968 by ratifying the Convention after having become a signatory party to the Convention on 1 November 1968.
The 1968 Convention on Road Traffic is one of the six core road safety-related UN legal instruments namely: (1) 1968 Convention on Road Traffic; (2) 1968 Convention on Road Signs and Signals; (3) 1958 Agreement concerning the Adoption of Uniform Technical Prescriptions for Wheeled Vehicles, Equipment, and Parts which can be Fitted and/or be Used on Wheeled Vehicles and the Conditions for Reciprocal Recognition of Approvals Granted on the Basis of these United Nations Regulations; (4) 1997 Agreement concerning the Adoption of Uniform Conditions for Periodical Technical Inspections of Wheeled Vehicles and the Reciprocal Recognition of such Inspections; (5) 1998 Agreement concerning the Establishing of Global Technical Regulations for Wheeled Vehicles, Equipment and Parts which can be fitted and/or be used on Wheeled Vehicles; and 1957 Agreement concerning the International Carriage of Dangerous Goods by Road (ADR). Apart from the 1968 Convention on Road Traffic, Thailand has signed the 1968 Convention on Road Signs and Signals on 1 November 1968, and also acceded to the 1958 Agreement concerning the Adoption of Uniform Technical Prescriptions for Wheeled Vehicles, Equipment and Parts on 3 March 2006.
The 1968 Convention of Road Traffic aims at increasing road safety through internationally agreed on traffic rules and the reciprocal recognition of documents issued in conformity with those rules. The Convention provides rules on all aspects of international road traffic and safety and serves as a reference for national legislation. It also describes all road user behaviour, such as what drivers and pedestrians must do at crossings and intersections, and promotes safe road user behaviour.
According to Article 52 of the Convention, it provides that “Any dispute between two or more Contracting Parties which relates to the interpretation or application of this Convention arid which the Parties are unable to settle by negotiation or other means of settlement may be referred, at the request of any of the Contracting Parties concerned, to the International Court of Justice for decision.” Upon ratification, Thailand has made one reservation to this article stating that “The Government of the Kingdom of Thailand […] declares that in accordance with paragraph 1 of Article 54 of the Convention, the Kingdom of Thailand does not consider itself bound by Article 52 of this Convention.”
Kitti Jayangakula
International Economic Law
On 3 June 2020, Thailand signed the Multilateral Convention on Mutual Administrative Assistance in Tax Matters (the Convention) and it became the 137th jurisdiction to join the Convention. This movement manifests the participation in international efforts against tax evasion and avoidance.
This Convention was developed jointly by the Organisation for Economic Co-operation and Development (OECD) and the Council of Europe in 1988 and amended by Protocol in 2010. The Convention enables jurisdictions to engage in a wide range of mutual assistance in tax matters such as exchange of information on request, spontaneous exchange, automatic exchange, tax examinations abroad, simultaneous tax examinations, and assistance in tax collection.
Additionally, the Convention facilitates international cooperation for a better operation of national tax laws while respecting the fundamental rights of taxpayers. It provides for all possible forms of administrative cooperation between states in the assessment and collection of taxes. This cooperation ranges from the exchange of information, including automatic exchanges to the recovery of foreign tax claims. Moreover, it guarantees extensive safeguards for the protection of taxpayers’ rights. It is the primary instrument for swift implementation of the Standard for Automatic Exchange of Financial Account Information in Tax Matters (CRS).
Kitti Jayangakula
Human Rights
Practical Issues in Protecting the Rights to Social Security of Thai Employees during the First Outbreak of COVID-19
Thailand voted to support the Universal Declaration of Human Rights (UDHR) and acceded to the International Covenant on Economic, Social and Cultural Rights (ICESCR) on 5 September 1999. Article 22 of the UDHR and Article 9 of the ICESCR recognize the right of everyone to social security, including social insurance. Due to these obligations, it is necessary to provide legal measures to protect ‘the rights to social security for Thai employees’ in accordance with these two international instruments. However, during the first outbreak of COVID-19 in March 2020, it is difficult to say whether the government provides adequate support to Thai employees in every sector or whether it needs a viable solution for some groups of employees, in particular a group of daily wage worker, freelancers, and platform digital workers.
As the International Labour Organization (ILO) states, ‘the right to social security’ comprises of four essential aspects: availability, adequacy, affordability, and accessibility. In terms of availability and affordability, the Social Security Office, under the supervision of the Ministry of Labour, plays a vital role in guaranteeing insurance-based schemes for all employees. The Social Security Act B.E. 2537 (1994) requires both employers and employees to contribute to the Social Security Fund on a monthly basis. The maximum rate of contribution is 750 Baht for employees who earn from 15,000 baht per month However, adequacy and accessibility are open to question because there is no clear risk plan for immediate financial assistance to unemployed people and for them to claim their accumulated contribution. Apart from this, freelancers and platform digital workers are needed to register as insured people under the Act. If they are not registered as insured people, they will not be entitled to claim for any contribution.
Thus, Thailand needs to revise both its feasible policy and legal measures to ensure additional support to employees. Policy decisions need to be adapted to future emerging issues. It is necessary to create short and long-term concrete mechanisms for redress and compensation. At least, all employees should be guaranteed to receive adequate contributions and equal access to the social security system.
Pataramon Satarak
Srisamai Chueachat [Constitutional Court, Decision No. 4/2563, 19 February 2020]
Srisamai Chueachat, a pro-abortion activist, submitted her petition before the Constitutional Court, based on the amended abortion provisions under the Thai penal code. She also claimed that the provisions that criminalize abortion violate the fundamental rights of the women recognized by the Constitution of the Kingdome of Thailand, B.E. 2560 (2017).
According to the petition, Somsamai claimed that Section 301 of the Penal Code, which provides that “Any woman, causing herself to be aborted or allowing the other person to procure the abortion for herself, shall be imprisoned not out of three years or fined not out of six thousand Baht, or both” would violate Section 27 and 28 of the 2017 Constitution, which recognizes the rights and liberties of the people.
Section 27 recognizes that all persons are equal before the law, and shall have rights and liberties and be protected equally under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of differences in origin, race, language, sex, age, disability, physical or health condition, personal status, economic and social standing, religious belief, education, or political view which is not contrary to the provisions of the Constitution or on any other grounds, shall not be permitted. While Section 28 provides that a person shall enjoy the right and liberty in his or her life and person.
In addition, she also alleges that Section 305 of the Penal Code, which provides that: “If the offence mentioned in Section 301 and Section 302, be committed by a medical practitioner, and: (1) It is necessary for the sake of the health of such woman; or (2) The woman is pregnant on account of the commission of the offence as provided in Section 276, Section 277, Section 282, Section 283 or Section 284 the offender is not guilty” (offences relating to sexuality) would also violate Section 28 and Section 77 of the 2017 Constitution, which provide that State should revise laws that are no longer necessary or unsuitable to the circumstances, or are obstacles to livelihoods or engagement in occupations, without delay, so as to abstain from the imposition of burdens upon the public. The State should also undertake to ensure that the public has convenient access to the laws and are able to understand them easily in order to correctly comply with the laws.
The Constitutional Court delivered its decision on 19 February 2020 by ruling that the abortion law provisions under Sections 301 and 305 of the Penal Code were unconstitutional. Under Section 301 of the Penal Code which deals with abortion, women who seek an abortion face up to three years imprisonment and a fine of up to six thousand Baht, or both. The Constitutional Court ruled that this Section of the Penal Code violates Sections 27 and 28 of the 2017 Constitution which guarantees equal rights for men and women, as well as the right and liberty of everyone to his or her life and person. The court ordered that the provision under Section 301 be invalidated within 360 days of its ruling (no later than 13 February 2021).
While the Court ruled that Section 305 of the Penal Code, the anti-abortion law, that allowed for legal abortion when the pregnancy involves offences relating to sexuality such as rape or endangers a mother’s physical health, did not violate the 2017 Constitution, it ordered the amendment of both Sections 301 and 305 in accordance with the realities of the current situation in the country.
Moreover, Thailand is a party to the International Covenant on Civil and Political Rights (ICCPR) and the decision of the Constitutional Court, in this case, reconfirms the implementation of the obligations recognized by the ICCPR which are to respect, protect and fulfill the private right of pregnant women.
As a result, after the ruling of the Constitutional Court, on 17 November 2020, the Government submitted a bill amending the two sections of the Penal Code. According to the new provisions of Section 301, a woman who aborts a fetus that is older than 12 weeks shall be liable to no more than six months in prison and/or a fine of one thousand Baht. Furthermore, the new provisions of Section 305 of the Penal Code provide more situations of legal pregnancy termination such as when the pregnancy puts the mother at risk physically or psychologically; the baby faces a significant risk of developing a physical or mental disorder or disability; the woman has been impregnated due to rape; the mother-to-be is convinced there is no other option; the abortion of a foetus that is older than 12 weeks but not exceeding 20 weeks is approved by a doctor or other health professionals as approved by the Ministry of Public Health.
Kitti Jayangakula
The Enforcement of the Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 (2005)
The government of Thailand, under General Prayuth Chan-Ocha’s premiership, declared a state of emergency and promulgated the Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 in response to the transmission of COVID-19 disease on 2 March 2020. COVID-19, a disease leading to a global pandemic crisis, arrived to Thailand in February 2020. The Thai government viewed the spread of disease as an emergency situation to be managed and solved by tightening state measures. They enacted this draconian emergency law for giving them more power to prevent and protect people from the pandemic crisis. The emergency law was then approved to have status as a legal act by the Parliament on 29 July 2005.
The Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 had been enacted on 16 July 2005 by the government under Prime Minister Thaksin Shinawatra for responding to insurgencies in far-southern provinces of Thailand, in parallel with Martial Law Act, B.E. 2457 (1914). This decree has been enacted many times after that incident, including during the COVID-19 crisis.
The Emergency Decree gives the prime minister unchecked power, arbitrarily, restricting the fundamental rights of the people with impunity. Section 5, paragraph 1, provides the prime minister is empowered to declare an emergency situation under the approval of the Council of Ministers if he considers that, under that emergency situation, it is appropriate to use the force of state officers to prevent, suppress and withhold the situation. In addition, section 12, paragraph 1, empowers the competent officials to arrest and detain suspected persons for up to 30 days in secret custody, search private buildings, prohibit people from leaving and forcibly deport aliens out of the country. Under section 18, officials are not under criminal, civil, and administrative liability for the performance of their functions violating people’s rights in an emergency situation. This provision leads to the impunity of state officers.
The Emergency Decree prevails over other laws having milder restrictions. It is reflected in section 3(6) of the Public Assembly Act, B.E. 2558 (2015). This section provides that this Act shall not be applied to the public assemblies while the State of Emergency is declared or while the Martial Law is applied.
The rules of The Emergency Decree on Public Administration in Emergency Situation, B.E. 2548, by nature, emphasize the restriction of freedom of expression and assembly. This has been used as the pretext for curbing political assembly protesting against the government rather than imposing measures for limiting the spread of the COVID-19 virus. There were often violent crackdowns on political demonstrations. Officials disproportionately used less-lethal weapons, such as water cannons, tear gas, and rubber bullets, against unarmed protestors. The protestors were arrested and charged with numerous criminal offenses. Their petitions for bail were often revoked by the court.
The Emergency Decree was extended until the end of the year 2020. The Thai government raises the continuous and chronic situation of the COVID-19 crisis as the justification for the extension of this law. However, although the figures for new cases are very low and the countrywide lockdown is relaxed, they still extend this law for justifying the suppression of political rights.
The Emergency Decree results in violations of rights under the International Covenant on Civil and Political Rights (ICCPR), which Thailand has become a state party since 1997. For example, it restricts people’s rights with no regard to necessity and proportionality for achieving purposes and also deprives people of their rights to political participation, freedom of expression, and political assembly. Moreover, it leads to violation of other rights, e.g. rights to justice, rights not to be subjected to arbitrarily arrest and detention, rights not to be tortured, rights not to be arbitrarily deported, etc.
Nattawat Krittayanawat
The Dissolution of the Future Forward Party
On 21 February 2020, the constitutional court of Thailand dissolved the Future Forward Party, after accepting the complaint of the Election Committee in 2019, through Decision No. 5/2563. The court ruled violations of the Organic Act on Political Parties, B.E. 2560 (2017) concerning receiving illegal donations from Thanathorn Juangroongruangkit, the party’s leader. As a consequence, the Future Forward Party ceased to have political party status and its executives have been banned from political participation for 10 years.
The Future Forward Party was founded in 2018 by politically progressive people, such as Thanathorn Juangroongruangkit and Piyabutr Saengkanokkul. The policy of the party is to eradicate military dictatorship, decentralize state mechanisms and improve socio-economic equality. In the 2019 election, the party won 81 parliamentary seats and became at the forefront of challenging the government under Prime Minister Prayuth Chan-O-Cha. The Election Committee brought the case to the Constitutional Court, contending that the 181.3 million baht funds loaned to the party were over the legal limit of 10 million baht per year and violated Section 66 of the Organic Act on Political Parties, B.E. 2560 (2017). The party was not allowed to present evidence in the court’s proceedings, which means that the court ruled the case through insufficient evidence.
The Dissolution of the Future Forward Party violated rights to freedom of expression, association, peaceful assembly, and political participation guaranteed by the International Covenant on Civil and Political Rights (ICCPR), which Thailand has become a party since 1997. Moreover, it violated the right to justice. This court ruling caused the impetus for people to check and balance public policy and administration of government through the parliament mechanism. It is clearly contrary to democratic rule and leaves the government easily using its unchecked power to suppress people. In addition, the court ruling reflects the violation of the right to a fair trial.
Nattawat Krittayanawat