Story by Anna Lawattanatrakul
Cover illustration by Kittiya On-in
Thanalop Phalanchai (centre) speaking to reporters after she was released from the Ban Pranee Juvenile Vocational Training Centre for Girls. (Photo by Ginger Cat)
After being arrested on 28 March 2023, 15-year-old activist Thanalop Phalanchai refused to file for bail in her protest against the judicial process. The Central Juvenile and Family Court then ordered her detained at the Ban Pranee Juvenile Vocational Training Centre for Girls in Nakhon Pathom, making her the youngest person in Thailand to ever be detained on a royal defamation charge.
Thanalop was charged after a complaint was filed against her by Anon Klinkaew, a member of the ultra-royalist group People’s Centre to Protect the Monarchy, over a message criticizing the monarchy’s alleged role in the 6 October 1976 Thammasat University Massacre, which she wrote onto the floor next to the Giant Swing during a protest on 13 October 2022.
When she was charged, she was a little over 14 years old and is now one of the youngest people ever accused of royal defamation in Thailand.
Thanalop spent 51 days in detention before she was released, but her arrest and detention raised questions about the Thai juvenile justice system and whether it is serving the best interests of the country’s children.
The (in)justice system
On 2 April, student right activist Anna Annanon, covered in red paint and with a tape over her mouth, sat inside a cage in the middle of the Siam Square walking street to demand Thanalop's release. (Photo by Ginger Cat)
Thanalop was arrested when she went to Grand Palace Police Station to see what was happening following the arrest of an activist for spray-painting graffiti calling for the repeal of the royal defamation law onto the wall of the Temple of the Emerald Buddha within the Grand Palace. She was dragged into a room, threatened by officers, and held to the ground while officers reached into her shirt to confiscate her iPad. No trusted persons were allowed to be in the room with her, and when she tried to give another activist a business card containing a lawyer’s contact information, an officer snatched it out of her hand and crumpled it.
Anna Annanon, an activist from the student rights network Bad Student, was with Thanalop at the police station. Anna said the police did not tell Thanalop on what charge she was being arrested and confiscated her belongings without a search warrant, even though Anna insisted they wait for a lawyer and a social worker before searching the 15-year-old. The police also tried to transfer Thanalop to the Metropolitan Police Division 6 headquarters without waiting for a lawyer, claiming that they needed to interrogate her. Only after a lawyer arrived did the police present Thanalop with an arrest warrant and informed her of her rights.
The arrest warrant was issued on a request from officers from Samranrat Police Station on a royal defamation charge, for which Thanalop previously received a police summons. She had asked to postpone her appointment because she had to take an examination, and the police agreed to her request. An arrest warrant was issued for her nonetheless, which led to her decision to reject the entire process because she felt her arrest was unjust.
“I made an effort to ask for a postponement. I showed them my educational future so that they would let me move it, so that when I’m done with my tasks, I can follow the process, but in the end, they issued an arrest warrant behind my back,” Thanalop said.
Meanwhile, the 14-year-old girl, Thanalop, is still detained at Royal Palance Police Station. Lawyers have also not been allowed to see her.
(Video clip is from when she was arrested at the police station.) pic.twitter.com/jFrMcIWSFR
— Prachatai English (@prachatai_en) March 28, 2023
A video clip of Thanalop's arrest
Thanalop said the police wanted to move her to Samranrat Police Station, where the complaint against her was filed, but she would not go willingly as she refused to participate in any of the procedures. She was carried into a truck by a group of women officers and placed in a room and was later charged with refusing to follow an officer’s order.
The next day, Thanalop was once again carried into a police car and into court. She said that officers shouted at her because she refused to walk into court herself. Inside the courtroom, she sat with her back to the judge as an act of protest. She decided not to file for bail, feeling that the court is unjust and not free, and that she “has nothing to lose.” The Central Juvenile and Family Court subsequently ordered her detention.
In the best interests of the child?
Thanalop’s arrest and subsequent detention prompted criticism due to the force used against her. Human rights lawyer Krisadang Nutcharus said during a panel discussion on juvenile justice at Thammasat University’s Faculty of Law on 5 May 2023 that nothing about Thanalop’s arrest and detention was in line with how the justice system should be treating children, noting that, since she committed her alleged offence when she was under 15, she may not have to serve any punishment.
Following an amendment to the Thai Criminal Code in 2022, a minor over the age of 12 but under 15 will not be punished if found guilty of a crime, but a court can impose other measures on them, including being reprimanded by a judge, imposing a fine upon the minor’s parents or guardians if they commit another offence, and putting them on probation.
Krisadang questioned why an arrest warrant was issued for Thanalop when she contacted the police asking to postpone her appointment and since she may not have to serve any sentence to begin with. He noted that, not only should a person accused of a crime be presumed to be innocent until proven guilty, the procedure for juvenile and family cases also states that a court must consider the child’s opportunity, situation, and welfare being issuing an arrest warrant.
Arresting a minor should also be done without force and only be used as a last resort, and Krisadang asked whether it was appropriate under this requirement for officers to search her while she was being held to the ground. He also noted that, although the police are required to take a detained minor to court to ensure that their arrest was lawful, no hearing was held and the procedure was conducted through paperwork completed by the officers themselves. Meanwhile, Thanalop told Prachatai in an interview that she was not aware this was done at all as she was not asked about her arrest.
For Krisadang, a hearing should have been called during this procedure. Judges should be asking children how they were arrested and if any violence was used, he said, while the arresting officers should also be summoned to testify, and since the law already required an arrest to be video-recorded, judges should ask to see the recording.
During the same panel discussion, Prinya Thaewanarumitkul, lecturer at Thammasat University’s Faculty of Law, said that although the Thai Constitution requires anyone accused of a crime to be treated as innocent, judges tend to believe the authorities and refuse bail, claiming that the offence was serious and the charge carries a severe penalty – something Prinya said presumes that the accused is guilty before they are put on trial.
Thailand’s Code of Criminal Procedure is also outdated, Prinya said, since it presumes that the accused is guilty. Meanwhile, the country’s Constitution is being constantly repealed and rewritten with every military coup, and so the Criminal Procedure Code is never amended.
Prinya said that what happened to Thanalop goes against both the Criminal Procedure Code and the Juvenile and Family Court and Juvenile and Family Case Procedure Act, which requires a judge to take into consideration the effects on the child before issuing an arrest warrant for a minor.
The Act also prohibits detention or any limitations of a minor’s liberty unless ordered by a court, but any such measure imposed on a minor must not be excessive, since the aim of the Act is to protect children.
“When it comes to cases about difference in opinions, especially when it comes to sensitive laws that can lead to different opinions or conflict of ideas care should be taken, because if Section 112 [the royal defamation law] is used inappropriately or repeatedly or excessively, and there is a case, the problem doesn’t affect just the police or the court, but it also affects even what the law is intended to protect,” Prinya said.
Children on trial
On 3 May, a group of activists, including Sopon Surariddhidhamrong, walked from the Central Juvenile and Family Court in Bangkok to Ban Pranee in Nakhon Pathom to protest Thanalop's detention. (Photo by Ginger Cat)
Secondary school students were one of the main driving forces behind the 2020 pro-democracy movement. They are now being prosecuted for participating in the protests. Thai Lawyers for Human Rights (TLHR), who is providing pro bono legal representation for activists and protesters, said that at least 286 minors under the age of 18 have been charged over political expression since 2020.
According to Amnesty International’s February 2023 report, these children face human rights violations, including criminalization of protest activities and free expression, noting that, for the first time in history, the royal defamation law is being used to target child protesters.
Of the 286 reported by TLHR, 20 minors have been charged with royal defamation.
The authorities’ treatment of child protesters also raises concerns. Amnesty International said many arrests were made without a warrant, while several child protesters suffered ill-treatment while detained, including assault and the use of restraining tools – something prohibited by the Juvenile and Family Court and Juvenile and Family Case Procedure Act unless to prevent the child from running away or to ensure the safety of the child or others.
Amnesty also reported irregularities in criminal procedure involving child protesters. 12 protesters interviewed for the report said that the police asked gender-insensitive, intrusive, and irrelevant questions during their background check. The questions included those on their sexuality and sexual activities, leading to frustrations among LGBTQ activists and protesters. Independent observers have also been denied entry into the courtroom during the trials of children facing serious charges like royal defamation or sedition.
Although third-party observers are not allowed during trials involving a minor to protect child privacy, young activists have said that this compromises the transparency of court proceedings and makes them feel unsafe.
Activist Thanakorn Phiraban said during the panel discussion “We are reclaiming our future: children’s freedom of peaceful assembly in Thailand” on 8 February that they were required to fill out a questionnaire during background checks with questions about their personal life, including whether they have had sex with an individual of the same sex. Thanakorn, who identifies as part of the LGBTQ community, said questions about their sexuality and sexual activities made them feel unsafe, while the process of the trial made them feel as if they had already been found guilty.
At the age of 17, Thanakorn was charged with royal defamation for giving a speech during a protest at the King Taksin Monument on 6 December 2020, allegedly claiming that Thailand is an absolute monarchy, discussing military coups, and demanding national reform.
When Thanakorn was convicted on 22 May 2022, the Central Juvenile and Family Court did not allow representatives of human rights organizations to observe the hearing, claiming that it cannot allow third-party observers because the case involved a minor and because Thanakorn was to be tried in secret.
The court did not allow observers in the room even after Thanakorn told the court that because they are being prosecuted for exercising their freedom of expression, they wanted trusted persons and rights groups to be present in the court room and after representatives from Amnesty International told the judge they have already submitted a request to observe the trial.
In another royal defamation trial against Thanakorn, resulting from a protest at the Siam Paragon shopping mall, in which protesters walked around the mall wearing crop tops, the Central Juvenile and Family Court prohibited independent observers from attending a witness examination hearing, although a request was filed for observers to be in the courtroom. Nevertheless, the court said that observers will be allowed when the verdict is read.
Independent observers were also not allowed during the trial of non-binary gender equality activist Nitchakarn, or Mimi, who was charged with violation of the Emergency Decree and blocking a public road after participating in a 25 October 2020 protest at the Ratchaprasong intersection at the age of 16, while questions asked during the trial made the defendant felt unsafe and as if they had already been found guilty.
TLHR said that the court claimed third-party observers are not allowed in trials involving a minor. It also said that Nitchakarn was questioned on whether they had read the UN Convention on the Rights of the Child (UNCRC) in its entirety and in the original English. Nitchakarn also wrote on Facebook after the hearing that the judge told them “if you’re going to do this, you really have to know it.”
Nitchakarn said that minors prosecuted for participating in protests felt unsafe going through trials, as they were made to feel as if they had already been found guilty. They also said that independent observers should be allowed to attend hearings because defendants did not feel as safe during the legal proceedings as they should.
In an article published in March 2022, TLHR said that although the UNCRC says that a child’s privacy must be respected during legal proceedings, allowing observers in the courtroom at the minor’s consent, such as fellow activists or other persons trusted by the defendants, or independent observers, would make minors who were being prosecuted for free expression feel less vulnerable, since they often have experienced violence and injustice at the hands of the authorities. The courtroom could also be made more friendly by seating the child defendant with someone they trust so that they feel more confident and comfortable and less pressured by the proceedings. Meanwhile, making a trial public would encourage transparency in the justice system and reduce public doubt about the fairness of these trials.
During Thailand’s third cycle of the Universal Periodic Review (UPR), a review of human rights record of all UN member states by mechanisms under the UN Human Rights Council, member states raised questions about the arrest and prosecution of children participating in political protests and recommended that Thailand respect its commitment to children’s rights as a state party to the UNCRC. The representative from Belgium asked how Thailand will guarantee that children will be able to exercise their freedoms of expression and peaceful assembly, while representatives from Mexico, Austria, Denmark, and Finland said Thailand should end the prosecution of children for royal defamation.
Although Thailand’s representatives spoke about the use of the royal defamation law, they did not answer questions about children’s freedoms of expression and peaceful assembly, or about the prosecution of children for serious criminal charges.
“I have to fight every day”
Activists gathering in front of Ban Pranee on 4 May after walking from the Central Juvenile and Family Court to Ban Pranee to protest Thanalop's detention. (Photo by Ginger Cat)
For Thanalop, every day in the Juvenile Centre was a fight, and it began on the van ride there.
Thanalop said Centre officials in the van were rude to her, calling her a “nation-hater” and accusing her and other activists of getting paid to protest the royal defamation law. When she asked how asking questions means she hates the country, they threw profanities at her. As other activists were driving behind the van, officials closed the curtains and even blocked windows with an umbrella to keep her out of sight.
At the Centre, books and letters sent to Thanalop were often intercepted during the screening process and did not reach her. Visitors were only allowed at specific times and days of the weeks, and even her lawyer could not see her during her first week of detention. She also said that the children were not allowed to watch the news other than the nightly palace news programme. There was no internet and only a small number of books. The Centre’s rules were also inconsistent and could change at any time.
When Thanalop contracted Covid-19 during the first few weeks of detention, she was given only cough syrup and left to recover without medical attention, although she said she felt so sick she could barely remember meeting visitors or signing documents. The groundwater used inside the Centre was also not clean and gave her a rash that later worsened due to long-term used of a steroid cream the Centre gave her.
Thanalop thinks that detained minors should be treated better, and that Juvenile Centres are not run efficiently. She said that several children detained with her needed to repeatedly remind officials to let them see their visitors and were often reprimanded in return. Meanwhile, tasks which should be handled by officials, such as preparing uniforms for detainees going to a doctor’s appointment or checking detainees’ hair for lice, were instead delegated to the children.
For Thicha Nanakorn, Director of the Baan Kanchanapisek Vocational Juvenile Training Centre for Boys, what is wrong with Thailand’s Juvenile Detention Centres is the result of systemic issues and the system’s resistance to change.
Thailand opened its first Juvenile Detention Centres in 1952 to separate child inmates from adults. However, Thicha said that the rules and regulations implemented in those Centres were not very different from those used in adult prisons, and since then a culture of authoritarianism has developed. Meanwhile, society has not been paying attention to what goes on with juvenile inmates, even thinking that children convicted of a crime deserve such treatment, therefore allowing the authoritarian culture to grow inside the system.
“Whether it is children who go to jail for theft or for killing someone, or children who go to jail for Section 112, for me, it’s a defect and mistake within the larger system of the country,” Thicha said.
“Right now, it might be too late, since in the past we ignored the dark corners of society, but everyone should be thanked for waking up now. Obviously, Section 112 should be amended, and there should be interventions in many things.”
In her years as director of Baan Kanchanapisek, one of the few, if not the only Juvenile Centre not directly run by the Department of Juvenile Observation and Protection, Thicha said she faced a lot of friction trying to change the system. When she first came to the Centre, Thicha dismissed an official for beating a detainee. This upset other officials, who said that they would have no power over the children and wouldn’t be safe at work if they were not allowed to hit a child as punishment. However, Thicha believes it would be easier for the children in her care to respect the rules of the Centre if they see that every rule is enforced, including the rule that Centre officials are not allowed to use violence on them, and that their right to their own bodies is inviolable.
Thicha said she has received numerous court summons over the years when she tried to protect Baan Kanchanapisek’s detainees from court rulings she sees as wrong, and has been required to write declarations to the court asking for changes to rulings. Once, she released a boy whose sentence was extended because a judge ordered him to get his stretched earlobes stitched before his release. Thicha believes it was his right to do what he wants with his own body, and that the court order was issued not in good faith but out of an authoritarian attitude.
“The less power we use, the more power we have. The more we treat them on the basis of their humanity, we will see their humanity in equal measure. They love us. They sympathize with us. They are ready to stay without causing any problem,” she said.
Time for reform
When asked what to do about unlawful procedures, Krisadang said the fight needs to continue until change comes. Nevertheless, he said that legislative changes will not change the structure of the justice system if society does not change.
“How can we have a justice system that is up to date, that loves freedom, and loves democracy in a society that is deteriorating?” he asked.
Meanwhile, Thicha said another problem with what happened to Thanalop was that juvenile court judges are not experts, but are rotated from court to court and may still treat juvenile cases the same way they would treat a case involving an adult.
When Thailand became a state party to the UNCRC in 1992, it had to submit a report to the UN Committee on the Rights of the Child. Questions were then raised about why children as young as 7 years old were being held responsible for crimes. In 2008, Thailand raised its age of criminal responsibility to 10 years, and again in 2022, when it was raised to 12 years.
Thicha said that these amendments show that, without outside pressure, the country would remain ignorant of the plight ofchildren, and that she has to thank Thanalop for waking some adults up to see the injustice.
“We have to accept that all children’s cases are a result of the government policies that have no vision. In the end, out of around 15 million children younger than 18 in this country, many are in jail because they don’t have a good enough way out. It’s not because they were born to be prisoners,” she said.
For Prinya, judges should be held responsible for misconduct or any damage they cause a defendant. He noted that Section 157 of the Thai Criminal Code, which criminalizes official misconduct, cannot be used with judges as there are specific sections relating to misconduct in the justice system. However, while these sections punish police officers and public prosecutors for damage caused if they wrongfully exercise their duties, no offence is listed for judges except for bribery.
Prinya said that, in Europe, judges can be punished for misconduct that causes damage to a defendant. He said he is not proposing such changes so judges can go to jail, but officials in the justice system also need to be held accountable, which will benefit everyone, including judges themselves. Police officers should also be given legal training, since an officer does not need a law degree but are at the beginning of the judicial process as those responsible for arresting and charging people. Prinya believes that if these changes are made, the Thai justice system will be better.
Thanalop climbed over the school gate after the Triam Udom Suksa Pattanakarn School locked her out, claiming she is not a student since she had not been properly enrolled.
Thanalop was released on 18 May, amidst concerns she would not be able to return to school if she was not released in time for the first day of class. She went back to campaigning, dying her hair and going to school out of uniform to call for the abolition of school uniforms and compulsory hairstyles.
On 13 June, Triam Udom Suksa Pattanakarn School closed its doors on the 15-year-old, claiming she was not a student because she has not been properly enrolled, which requires her biological mother to sign the necessary paperwork. But Thanalop and other activists she now lives with said they cannot contact Thanalop’s biological parents.
The school has refused to meet Thanalop’s guardians and representatives from the Move Forward Party, but joined a meeting with representatives from the Ministry of Education and the Ministry of Social Development and Human Security, which has been criticized by civil society as neither Thanalop, her guardians, or their representatives were invited to take part in the meeting. However, no progress has been made in how the issue is to be handled.
Thanalop continues to go to class. However, Sunai Phasuk, Human Rights Watch’s senior researcher, said that the school is still refusing to enroll her, while some teachers will not check her homework, and because she has not been properly enrolled, she will not be allowed to take examinations and will not receive any qualification.