After the Central Juvenile and Family Court issued a statement claiming that it was appropriate to detain 15-year-old activist Thanalop Phalanchai, Thai Lawyers for Human Rights (TLHR) released a statement countering the court’s claim, saying that her arrest was against both Thai law and international human rights law.
Thanalop standing in front of the UN headquarters in Bangkok on 18 February.
Thanalop has been detained pending trial at the Ban Pranee Juvenile Vocational Training Centre for Girls in Nakhon Pathom on a royal defamation charge since 28 March, after a complaint was filed against her by royalist Anon Klinkaew, head of the ultra-royalist group People’s Centre to Protect the Monarchy, for an incident that occurred around the Giant Swing in Bangkok’s old town on 13 October 2022. At the time, Thanalop was 14 years old.
On 12 May, the Central Juvenile and Family Court issued a statement saying that it approved an arrest warrant for Thanalop because it believes that she was trying to stall the case, since she asked to postpone her appointment with the police but went to the United Nations headquarters in Bangkok on 18 February to read a statement criticising the justice system.
It also said that although Thanalop refused to sign documents appointing a legal advisor, the Court had already appointed one for her and therefore her arrest was in line with the law. It also said that it sent her to Ban Pranee because her mother, who is her legal guardian, did not come to court with her, and so it was not able to hand her over to a parent, guardian, or any individual she lives with. It also noted that her detention is lawful because her mother has never come to court to file for her release and no one has requested bail.
The Court said that Thanalop’s parents, guardians, or any individual or organization she lives with can come to court and ask for her to be released into their care. Others related to her can also file for bail.
Thai Lawyers for Human Rights (TLHR) then issued a statement countering the court’s claim, saying that Thanalop was exercising her rights to freedom of expression and peaceful protest by reading a statement in front of the UN headquarters, and that it would not be a reason for the court to issue an arrest warrant for her. It is also unconstitutional for an arrest warrant to be issued, since Section 6 of the Constitution states that any legislation or arrest warrant issued must not violate the rule of law, excessively restrict a person’s rights, or violate their human dignity. Any legislation or warrant must also state a reason for why it needs to restrict people’s rights.
TLHR said that case documents show that the inquiry officer claimed that the arrest warrant was issued because there is evidence that Thanalop has committed an offence that carries a prison sentence of over 3 years, but did not mention that the police believe she was trying to stall the case by postponing her appointment.
TLHR also noted that the Juvenile and Family Court and Procedure Act requires that the court must be concerned first with protecting the rights and welfare of children and young people, and that the court should avoid issuing an arrest warrant if an arrest would have a severe effect on the mental health of the child or young person. Instead, the court should use other methods to find the child before issuing an arrest warrant. This is in line with the Convention on the Rights of the Child, which states that arresting or detaining children should only be used as a last resort.
However, in Thanalop’s case, it does not appear that the court tried other methods before arresting her.
TLHR said that Thanalop’s arrest was unlawful because police officers forcibly dragged her inside a room, searched her without her consent, and even held her to the ground by sitting on top of her, going against the Juvenile and Family Court and Procedure Act which requires that any arrest of a child must be done gently. The authorities must also preserve the child’s dignity and must not humiliate them, and must not use any means of detention beyond what is needed to prevent the child from escaping or to ensure the safety of the child being detained or other people.
Thanalop was also not informed that she would be arrested as required by law. TLHR questioned why the Central Juvenile and Family Court said that Thanalop was arrested and treated lawfully, noting that the court can immediately order her release if her arrest was unlawful.
TLHR also noted that, according to the detention order dated 29 March, the court ordered Thanalop’s detention on the grounds that she might be a danger to others and that she is likely to flee. The document does not mention that Thanalop’s parents or guardians were not present in court, and so it ordered her to be sent to Ban Pranee because it could not hand her over to her parents as the court said in its 12 May statement.
TLHR asked why Thanalop’s alleged offence, which is writing protest messages and giving speeches about the monarchy, would be a danger to others, and what evidence the court is citing when it says that Thanalop is a flight risk.
Under international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), detention under the royal defamation law can be considered arbitrary detention, said TLHR. The UN Working Group on Arbitrary Detention has said several times that the royal defamation law is vague and overly broad and therefore relies too much on state officials’ discretion to rule whether an action constitutes an offence under the law. The royal defamation law is therefore against the principle of legality, making any detention under this law unlawful. The working group has also recommended that Thailand repeal or amend the royal defamation law to be in line with international human rights law.
The royal defamation law, which carries a prison sentence of 3 – 15 years, is also an unnecessary restriction of civil and political rights as stated in the ICCPR and is excessive compared to its goal, which is to protect a person’s reputation or to preserve national security or peace and order.
TLHR said that even though Thanalop rejected the justice system because she does not think she should be prosecuted for expressing her opinion and that no arrest warrant should be issued for her, when the lawfulness of the process is being questioned and criticized, members of the juvenile justice system need to provide an answer for the public. It must also answer Thanalop’s question on whether her case is being handled in line with the law and the principles of children’s rights.
“Because Yok rejected only the justice system, she did not reject justice,” TLHR said.