Ever since the cabinet resolution to approve the Non-profit Organisation Act on 24 February 2021, objections immediately surfaced from the civil society sector, including both international and domestic organisations.

The first draft had many problems, including compulsory registration with stipulated penalties, limits on the areas of work of organisations with many prohibitions, for example, that organisations must have no impact state security or good morals, as well as criminal penalties, and a greater bureaucratic burden on organisations.

Although some details in the current bill, for which the Ministry of Social Development and Human Security held a public hearing this past April, have been amended, the main points have not, such as the areas of permitted work under Section 20. This is the issue that attracted the greatest criticism from the start, as well as the section which stipulates penalties, where the criminal offences have been removed, but the range of responsible persons has increased to those working in the organisation.

In addition, this bill was criticised for allowing the Committee to interpret which organisations fall under this law even if they do not have to register. This may not help promote civil society sector organisations to really work for the benefit of the people, so they have renamed this Act as the “People’s Assembly Destruction Act.”

Prachatai interviewed Thitirat Thipsamritkul, lecturer at the TU Law Centre, Faculty of Law, Thammasat University, who is also the Chair of Amnesty International Thailand, on the impacts that this bill may have if passed, and also, can it really be used to prevent money laundering as the state claims?

Thailand is often questioned on the international stage about its progress in resolving its human rights problems. If this law is enacted, what effect will it have on the human rights problems in Thailand?

It will definitely have an effect. There are many things that Thailand is questioned about on human rights. Recently, we have heard more about freedom of expression (FOE) and freedom of assembly and association (FOAA) since we had quite a lot of laws enacted which limit these freedoms quite a lot. It is a phenomenon often seen in a society with high levels of political change, since these two freedoms are the basis of the democratic process. For FOAA, earlier the global community kept their eyes on the first A (Assembly), but now with the NPO Act, Association is also included.

Thitirat Thipsamritkul

There is the issue of protecting Human Rights Defenders, who are the people who use the two freedoms to speak out on various issues, then get threatened or have their rights violated. In this context, Thailand is often questioned on topics such as enforced disappearances, torture, the right to bail, fair access to the justice system, as well as using legal processes to obstruct or harass the work of Human Rights Defenders, including the media and NGOs, which is called Strategic Litigation Against Public Participation (SLAPP). This harassment may be by a state or non-state entity.

From an overview on civil rights and political rights in the world right now, all 3 issues are often talked about as the same problem: the shrinking of civic space. The NGO bill (Non-profit Organisations Operations Act) will impact the second issue directly, the third indirectly, and may also involve the first one as well.

That is why this bill is being suspected of being one of the cogs that will obstruct the exercise of the freedoms to protect human rights defenders and the opening of space for these freedoms. So it is not strange that foreign governments and international organisations who keep an eye on the rights situation will question the Thai government on the reasons why this kind of law is needed, since the effect of enforcing this kind of law does not only fall on the right to form social groups, but will also affect other rights because group formation of various organisations can also be for the sake of exercising other freedoms, such as assembling to call for community environmental rights, labour rights or educational rights.

In actuality, the right of association is often given importance in its function as a tool which allows other rights to be exercised rather than as an objective in itself. If we say no formation of groups or associations or limiting activities that can be conducted as a group, it does not seem like a clear violation compared to prosecuting or imprisoning people. It’s not a violation that is really clear like with other rights but rather it will have a ripple effect on campaigns for other rights. This is very worrisome, because the violation happens slowly without us noticing, or when we do notice it, it is already too late to fix it because the networks in the movement have already become too weak.

The issues of human rights and international trade seem to have become inseparable. The case of labour in the fishery industry is clear, as well as business and human rights, which has become a trend for many years. How will this kind of law limiting the work of NGOs impact the economy?

It may cause impacts in many ways. The direct effect is on NGOs that try to question or suggest raising standards to protect the rights and freedoms affected by business operations. We do not need to make the assumption that all businesses must violate rights, but in some industries, there is more likely to be clear or violent violations. The state may not do its job properly or reach the standard the global community sees as necessary. There are NGOs in and outside the country trying to keep track of these issues, such as the fishery issue as one example.

The issue is if the work of these organisations is restricted, it will impact the credibility of businesses in Thailand, for example, the interpretation of Section 20 in the bill which limits the activities of non-profit organisations that “may impact international relations.” If it is human trafficking or forced labour, it may be interpreted as covering this because in the nature of the issue, it may be necessary to speak of the interests of state agencies in and outside the country.

On 18 Feb 2022, Move Forward MP Rangsiman Rome discussed in parliament human trafficking of the Rohingya, which was the reason why Thailand dropped to the Tier 2 watch list in the 2021 US State Department’s Trafficking in Persons rankings. Thai and international rights organisations have been keeping track of this issue since 2014.

We have to accept the fact that originally Thailand was a centre of cross-border activities in the region. Although people may not be too aware, in actuality it is not surprising at all. If Thailand can become a regional hub for private companies, it will be a hub for cooperation between governments and also a hub for NGOs. Bangkok is not just be a place where foreign companies come to set up offices but it will be a place for regional offices of international organisations like the United Nations and others, as well as international non-governmental organisations. Bangkok is seen as a convenient place as a city with a relatively reliable infrastructure, and some businesses or activities that may impact human rights, especially activities with cross-border effects over the whole region, such as the environment, fisheries, migrant labour, international crime etc., are monitored by international non-governmental organisations which are normally set up in Thailand.

Another impact on the work of these organisations is the risk that support funds cannot be fully used, or are suspended by order of the state while being used. Right now, we still do not know how this will turn out, we can only guess. In fact, a good law should not let people guess or place their hopes that its authority will be used with discretion, but should provide legal certainty that allows working people to plan their operations.

However, this draft opens rather large loopholes for the use of authority. If organisations which provide funds related to rights or development calculate the risks, they may not provide funds through Thailand, or may not provide support funds for this region at all. Yet rights violations still remain here.

As for indirect impacts, there is the country’s image. In the past we may not feel that human rights affected our national image much. A country’s image is a matter of security of life and possessions and convenience in transportation, but this era is more interested in overall legal systems rather than just basic safety.

That is why, the question has expanded from ‘is it safe?’ to ‘can the law be trusted?’ What we should be able to expect from a civilised country is when we are walking on the streets, there is no-one to come and rob us, or if something happens to us and we go to the police, the police will not ask us for bribes.

Similarly, investors investing in Thailand hope that they will be helped by state officials and receive protection in various procedures.  This is a normal expectation for business. But the question is when the rights situation in a country has deteriorated or there is less protection, activities between countries are more obstructed.

This becomes a signal for the business sector or investors as well that although today the restrictions on rights may still be within the circle of activists, as interference in NGOs or rights and freedom, they may question that if the interpretation of the law is arbitrary or illegal, will it then extend into their business space?

If we look at the Doing Business Index (by the World Bank, currently using the name Business Enabling Environment) or the Rule of Law Index, these concern not only the speed in setting up a company or requesting electricity or water services to start a business, but also include legal predictability, justice in the court system, no bribe-taking by officials, or things related to rights and freedoms as well. It is not limited to just trade.

If we take a look at the list of countries with laws like this that limit freedom of assembly and association such as is being drafted, we can see that these are the kind of country where an investor will have to ask many questions before doing business or may even send someone from their main company to that area to make a risk assessment first. In short, the cost that a company has to pay to send a person to that country will be higher than for a country without this kind of law.

But does the Thai law quote laws from this group of countries?

Yes, but to be fair, if we look at the research of the Council of State of Thailand which was published with this draft, which consists of opinions which they collected from various agencies and also a research study conducted by the Council of State itself, it looks at laws of countries which do not limit rights but focus on support, such as Japan, England or America.

England’s and Japan’s laws will be about tax, that allow tax deductions and the receipt of financial support from the government, but there are none that will limit the type of activities or say that they have to broadly reveal any information, as is written in Thailand’s bill. In America they only limit organisations which operate as agents carrying out political activities for the benefit of foreign countries which get examined more, but most civil society sector agencies are exempted.

There are some overlaps, since they looked at laws from many places, not just India, China, Cambodia, Kenya, but what they picked out does not fully explain why they only picked the parts which limits a lot of rights from the law of one country but not the parts which support rights protection from another country.

When you talked about using law inconsistently or unlawfully, how does this bill allow such a law to come about?

Section 20, for example, which people speak of a lot, is quite broad. We have always said that laws cannot be written in that much detail, but if they are written broadly, there needs to be a principle to interpret them. The question is, when it is written broadly so that it can be applied to various situations, what principle do we base our interpretation on? We need to take it from the objective of the law, and the objective of this law is not clear, so we do not know, when it comes to interpretation, what do we base it on, since in actuality, the objective of the law will become the frame for interpretation and prevent the improper use of discretionary power.

For international relations for example, we still do not know how the government views “international relations”. The government first needs to know what the goal is, only then can there be arguments on whether the government’s view towards the workings of NGOs which may impact international relations really makes an impact or not. Do they think it up themselves? How should it be weighed against benefits and people’s rights and freedoms? We need to know this viewpoint, then we can continue to see if this list is narrow or wide.

Another issue is the officials’ discretion in providing support to some organisations. It may open a way for officials to discriminate and act differently between good children organisations which praise the government and organisations which criticize what the government does. This is in Section 18.

In addition, there is the issue of declaration of funding sources. If you read the details, it says that if the details are complete then there is no need for further explanations. This raises the question, what do they call complete? There are loopholes for officials to use their discretion widely.

It seems like the law still has parts where the fines also apply to workers. Is this also using authority unlawfully?

It is possible, but it’s more about the basic concept of an organisational legal entity rather than the idea of why we need to create a company, why we need to create an association. It’s because there are many things one person cannot do but coming together into a separate legal entity will expand the potential for work, and accepting risks and competing to create innovations will become easier, without the need to be stuck to an individual.

This is the same for a commercial legal entity, association or foundation established so that it has a separate identity from an individual, because when a person works in an organisation, they do not do it in their own name but do it to achieve some kind of collective objectives. If it is a foundation, then it is the owner of the money which is donated to help. If it is an association, then it would be the will of the association members, not just of any one person. When you work and do not work for just any one person, the results of that work should belong to everyone in the association, not the individual who did the work. But if there are great risks for individuals working in the organisation, who would want to work for the public benefit which the organisation aims for?

The state itself is also the same, since if all officials must be punished individually even though officials work for the benefit of the state or the public, who would want to become a government official? Even today there are already threats to use Section 157 of the Criminal Code very broadly, making state officials feel like they almost cannot budge at all. This is a part of how we have not drawn a line between individual offences and offences as state officials in an organisation.

But this also shows that trying to shift the liability to individuals means that it is likely that the state will not be able to effectively oversee organisations, or there is no way to compromise by talking at the organisational level, so instead the pressure is placed on those working within the organisation. I think this kind of thinking is not healthy for coexistence in society. I don’t mean just NGOs, but companies or even government officials. It shouldn’t be like this when we work for the common good. But when the existing system is not normal nor straightforward, there is then a need to find a new system to build new motivation for workers to protect their own personal benefits. In the end, fewer and fewer people will be left working for the common good.

Why does the prejudice about NGOs in Thailand receiving funds from foreign sources get talked about over and over again as a way of attacking NGOs, saying that they receive foreign money to interfere in Thai politics?

I’m not sure why this kind of prejudice came about either, but my guess is that it’s because people have never really known that in fact Thailand and other developing countries have been able to make their way partly through foreign aid. It may be viewed from two levels.

The first is aid from various nations. In the first phase when we were making our way, around 1960-70, there was an enormous amount of assistance coming into Thailand for building roads, airports or even hospitals and faculties.

Thai people have learnt about this as well. We know that many people who did a lot of good for the country received support from foreign countries. We know that these people pulled in funds to develop the country. Those working in urban development also know that Thailand couldn’t survive without foreign aid. I’m not sure why people forget, or why they don’t see it in the same way with NGOs nowadays.

Although more recently, financial assistance from these international NGOs has decreased since foreign countries view that Thailand can stand on its own feet, and hope that Thailand will help other countries who are less developed. Consequently, the tons of money which helped the government has decreased, especially in developing government agencies or basic infrastructure which no longer needs much help. That’s why in these times, help from foreign aid goes to parts that are not very strong, which are the NGOs where the Thai state has not given full support as in other developed countries.

In many other countries, financial support for NGO work will come from their own state sector, but not directly, otherwise these organisations will not be able to keep their independence to monitor the state. It may be through a parliamentary fund or various funds that have been segregated to support NGOs, or the state may help and facilitate fundraising. Or even NGOs promoting arts and culture which we like to speak of as transnational “soft power” also receive quite a lot of financial support from the state (of course there are questions about the neutrality of their management).

It’s just that the basic infrastructure that will support NGOs or the civil society sector to be able to stand on their own while relying only on funding in Thailand is still not strong. We may now be beginning to have some millionaires establishing foundations, but it’s not as concrete as it is in other countries. In short, a foundation requests tax deductions. They can donate money to reduce their tax. It’s still being seen as money laundering, instead of viewing it as someone donating money for the sake of the public benefit.

While in truth, there’s no difference from paying taxes because we pay taxes for the government to use our tax money for the sake of the public good. But if we pay money straight to a foundation, then the foundation can use the money for the public benefit that we want. Civil society organisations need budget to move forward. We should get rid of the image that people working in the civil society sector scrape by. I’m not saying they need to be rich, but they need money to live.

Angkhana (Neelaphaijit, former National Human Rights Commissioner) once said something in an Amnesty forum which I thought was very good that, even when she wrote a letter to the NHRC she needed to pay for the paper and travelling expenses. It’s also money. And the things villagers need to sacrifice to do these things, it’s also money that can be used for their lives. There needs to be a budget for fighting for these things, but when what they do is to criticise or question the government, they 100% can’t expect money from the state sector. We then have to hope for aid from other sectors.

If there is no money from inside the country, why should we obstruct them from receiving support from foreign countries? Obstructing the civil society sector from receiving foreign financial support while funds from inside the country are lacking is considered a severe limitation on freedom of assembly. The European Court of Human Rights and the UN Special Rapporteur have spoken about this many times on many occasions.

The second reason is that people in our society may not see international aid as something that should be trusted. I think that Thailand is quite suspicious of foreign interference . This may be a heritage of the atmosphere during the Cold War, but actually, in this world there is the idea of solidarity, or feeling shoulder to shoulder as brothers without the limitations of borders.

For example, when we hear news of an earthquake in Japan, we donate money. We know that people in Ukraine are living in difficulty, we want to find ways to donate money to them. We know that hospitals in Chiang Mai are full of COVID patients, and we’re in Bangkok, we don’t know them personally at all, but we want to help.

25 Nov 21, a monarchist group gathers to give a letter to the Prime Minister asking him to investigate Amnesty International Thailand for holding activities that may affect security and chase them out of the country. Picture from Thai Raksa

This is solidarity, like when foreigners see this kind of problem in Thailand and they want to help. It’s no different at all from sympathy. Why can we not view it from the opposite viewpoint; that they probably think that Thailand has this kind of problem and would like to help, so they give us money to work on it?

Or is it because people don’t believe that what these organisations are saying is just about democracy, but is about using their power to interfere in politics?

Possibly. This may be another problem of human rights discourse in international forums. From another angle, we may have seen many cases where many western nations used the defence of human rights as an excuse to interfere in domestic politics. There are clear examples, especially during the 90s or early 2000s. Those who grew up with this kind of example most likely feel that it’s scary that people meddle with us like that – this is understandable.

But we need to distinguish if it’s really like that or not. Looking at the real situation in our country, we can say that we’re barely getting any interference.

I think the reason people look at the issue of interference could be because Thai people aren’t yet much used to calls for human rights and freedom, so it is difficult to find sympathy. For example, people in general in society can just about understand those living in difficulty from war or people dying for lack of blood because they see images on the news, see campaigns, but when it’s about calling for the right to freedom of assembly in order to call for the rights of villagers in areas where the forest laws have limited their rights, it sounds like a minority issue. It’s something that listeners may not be able to place themselves in their shoes fully. It may still be a value that is not yet common in Thai society.

Actually, if we can imagine that we may be sick and there is no blood because no one has donated, why is it that we can’t imagine that we will get tortured like other human rights defenders or may be unlucky enough to face unfair trials?

Another reason is that Thai people often interpret “being Thai” very narrowly – a strange kind of nationalism where one must be a Thai person to be able to speak of these issues. It has to be only insiders who can criticise the law or anything that happens in Thailand. It’s strange. Even though we want things that are the values of our country to become something that people respect, when we read letters or announcements of the national economic development plans which often conclude that our goal is to become the equal of other nations or to reach international standards, we still protect ourselves from criticism from the outside by claiming that what they say comes from the mouths of foreigners who do not fully understand us, although in terms of arguments, we should answer with reason and information, not based on who is the speaker.

Although support, such as financial funding, is also mentioned, how much good can this fund do under this Act?

There has always been a mechanism to support the work of NGOs. There are Thai funds in the state sector that NGOs could utilise. However, the question one should ask is - can the fund be accessed without discrimination? Can everyone equally access it? This might be the bigger issue.

The second issue is to motivate people to donate. Just compare how easy it is to get a tax refund from donating to a temple and to civil society organisation. Donations to temples are barely touched. But I don’t mean they should be touched. That is a whole different problem. People think that donations made to the temple are for themselves, so that their next life becomes better. They do not donate money in the hope of creating changes in society. 

Actually, apart from being a spiritual anchor, temples could also count as a type of civil society organisation. Temples organise merit making ceremonies to raise money for education, to help their local community get on or to find solutions to problems of the community. I think that civil society functions almost the same as a temple. However, people do not normally view it as a secular activity when the temple or monks do it.

Yet, when civil society organisations ask for tax deductions, they are faced with unreasonable conditions. There need to be some conditions, but they should make it easier than this. Monitoring should be transparent and fair. These conditions will distinguish which kind of organisations should be particularly checked for money laundering or which are truly working for the public interest. What the state should do is change the mechanisms so that NGOs could easily gain more funding.

Similarly, when you ask the business sector if they want the state to establish a fund to distribute money to start-ups, they will say no (that is because the fund would not be enough and there are issues of equal access to the fund). They only want there to be an easier way to raise funds, and for the government just not to obstruct them when they are fundraising. I think the situation is similar to when NGOs want money to work for the public. They can find their own funds, as long as the government doesn’t obstruct them.

When we move back to see the bigger picture, people do not see that temples and NGOs share similarities, in that they both act as intermediaries which use money for development.

Honestly, I think Thai people care too little about where their donation money goes. I’m not saying that when it’s an NGO, you should trust them 100 percent. You can monitor and criticise where the money goes. But there are people who donate to a temple because this certain temple has a development monk who will use it for a school. Okay, monks may appear to have more credibility because they vow to go by the religious precepts.

If we ask if NGOs should have precepts, we need to see if the existing laws and social rules have so far been enough to ensure that NGOs have secular precepts, which I think they have. There are regulations that require NGOs to submit or disclose documents to the state annually, in their status as registered foundations or associations. Or when NGOs request funds from abroad, they have to submit a report. And more than that, people who donate to these NGOs will themselves demand transparency without much intervention from the state. When a celebrity fan group wants to raise money for a gift for their star, they also have to list their income and expenditure.

Oversight mechanisms in society don’t always need to be the law of the land. Laws that interfere with freedom should be the last resort, not seen as some magic wand to make society into what you want.

How necessary is this Act since many organisations have noted that there is already an existing law overseeing NPOs and already a mechanism in place to inspect finances?

I think that the Act is not necessary. Well, when we say necessary or not necessary, it can be answered in different ways. For example, because the existing draft is not good enough, it’s not necessary or because the current situation does not require an oversight law or because there is already an existing law that can be used.

If you ask if assemblies or associations of the people should be limited or not, I think it should be limited only at the level where it will create a risk. Like an assembly to found a company or an assembly to hold some sort of activity. We need to start from the basis that humans have the freedom to do whatever they want as long as it does not create risks or make trouble for others, but if it does, then the law should take over.

Right now, the state has yet to be able to prove that assemblies or associations of the people, no matter if it’s an NPO, foundation or anything else, create any kind of risk to the country. There is no explanation. I don’t think it can move forward.  Why does there need to be a law for this?

6 civil society organisations held a joint press conference on 11 Feb 22 on Revenue Department inspection of their sources of foreign funds but under the pretext of providing tax advice. These organisations affirmed that they have legally registered as foundations and have submitted annual financial reports.

One of the risks that is quite evident in Thai society and there are examples, is money laundering in the name of a foundation. But there is already an existing law in force on money laundering, and the Financial Action Task Force (FATF) has reviewed how the law must be amended. The FATF clearly said to have the law amended according to risk. For organisations that are considered to be of high risk, measures should be implemented for additional reporting or to create more transparency.

The FATF has never said that you must use one-size-fits-all measures, because they well know that it creates more burden than necessary and it will also impact other rights, as well as being inefficient. What the FATF is most interested in is efficiency.

Try thinking of reality. The Anti-Money Laundering Office (AMLO) would need to receive these complaints and documents. If we look only at risky organisations and are able to list 100 organisations, AMLO looks at the documents of 100 organisations. But if we say that all organisations need to submit documents, then AMLO would need to look at tens of thousands of organisations, so how are they going to work efficiently?

It’s evident that there is no reason to amend the money laundering law so that it covers more organizations. This is another point that is being amended, which is going in a direction that is not in line with FATF’s advice, but AMLO tried to claim FATF advice as the reason for amendment with one-size-fits-all measures although it should be based on risk.

The already existing laws to control this, if there is no problem, should just continue to be used. There’s no need to enact a new law to increase the chances that authority will be used in bad faith or of abuse of the law.

Today we have to accept that every time a new law is enacted, all sectors experience suspicions in their hearts about how it will be used. These suspicions go beyond the actual law itself. There is concern for whether people will understand, since many laws are written very technically. When it is used, will it be used correctly? Some lawyers say if it’s used wrongly then the court will just make a ruling, but until the process reaches the final verdict – suppose it takes 3 years – sometimes that organisation is already ruined.  

When new laws are enforced, even the business sector itself also often objects since it becomes a burden for entrepreneurs. After enforcement, there is the headache of changing this and that to be in line with the law. This may not be the biggest issue because they can manage, but what they are more scared of is getting bullied by these laws or scared that officials will unfairly use the laws against them.

I think it’s the same situation. NGOs or the civil society sector may not be that scared of a burden of that size, although small organisations may be more scared because they have fewer staff. What people are most scared of is people using the law to persecute them. When we don’t have that much trust in the effectiveness of law enforcement by the state, there is nothing to guarantee that the law will be used according to its stated intentions. For this bill, the state can’t even explain what the intention of the law is.

On the other hand, lawmakers seem to not have thought about what those implementing it will do it.

I pity those that have to enforce this law because it is very broad. There are some exemptions that allow some organisations to not fall under this law, but a lot still remain.

When a law is enforced, there must first be a regulatory impact analysis (RIA) or cost-benefit analysis to see how much the Act needs in resources. The state needs to be able to answer how many officials are required to oversee organisations according to the definition of NPOs, which most likely total hundreds of thousands of organisations all across the country, carrying out countless thousands of activities. How many officials will this require?

These officials do not collect documents directly from these organisations but need to coordinate with other state agencies in various ministries already overseeing these organisations to get these documents.

I understand that they tried to write the law in a way that facilitates operations to a point because they have always been attacked, since organisations already have to report to the Revenue Department and report to the Department of Provincial Administration annually and now they have to report to the Ministry of Social Development and Human Security as well?

The Council of State tried to amend the bill that if an organisation has already made their reports, MSDHS can pull out information from these ministries directly. The question is, is there a system in place that allows this information sharing to really happen?

Nowadays, internal coordination among agencies in the Thai government system is a great problem, otherwise we wouldn’t have needed to establish the Digital Government Development Agency to help with this.

We cannot begin to imagine how many officials is required to operate this, and the next question is, if it can be done, what is it for? What benefits come from using our taxes for this? What really is the objective of this law? The state needs to be able to answer.