Thailand Law Journal 2014 Spring Issue 1 Volume 17

(i) Judicial rights

Judicial rights guaranteed under the Thai Constitution that cover provisions in the CRC and ICCPR include the right to be presumed innocent until proven guilty,282 to be informed promptly of the charges brought against an individual,283 to a fair and prompt trail,284 to an adequate opportunity to defend their case,285 to defence through counsel,286 to object and
challenge the Court's opinion,287 and appropriate protection and treatment for children.288 The Thai Constitution does not however require interpreters if the child cannot understand Thai, call for protection of the child's privacy, specifically allow for the examination of witnesses against the child, state that no one shall be liable to be tried or punished again for an offence
for which they have already been finally convicted or acquitted or state that individuals shall not be compelled to give testimony or confess to guilt, all of which are provisions in either the CRC or ICCPR or both.289 The CRC Committee have expressed concern that 10 year old children may be held criminally responsible asserting that this is below internationally accepted standards. The CRC Committee have also expressed concern that training of judges and judicial personnel in child rights may not be adequate.290

(j) Rights in armed conflict

Under Thai law an individual must be 18 years of age and a Thai national in order to register for military service.291 This is in keeping with the relevant provisions under the First Optional Protocol to the CRC and ILO Child Labour Convention,292 furthermore it ensures that the target populations of this study cannot be legally enlisted by State armed forces. The First
Optional Protocol also asserts that armed groups distinct from the armed forces of the States should not, under any circumstances, recruit or use in hostilities persons under 18 years of age.293 The CRC Committee has however expressed concern over children's formal and informal association with village defence militias in the southern border provinces.294 Reports have suggested that children are being recruited by both State authorities and militant rebels in the south and that some of these children have allegedly lost their lives in conflict.295 The CRC Committee is also concerned about asylum seeking and refugee children who may be former child soldiers.296 Under the First Optional Protocol these children should receive rehabilitation and social reintegration assistance from the State,297 however there is a lack of means of identification and protection for these children placing them at risk of re-recruitment.298

(k) Freedom from slavery

The ILO Child Labour Convention, ICCPR and AHRD assert that no child shall be held in slavery.299 Slavery is the holding of an individual for the purpose of performing forced or compulsory labour,300 it does not include all the elements that constitute trafficking. Under the Criminal Code whoever, so as to enslave a person or to cause a person to be in a position
similar to slavery by inter alia restraining any person shall be imprisoned.301 In the case of Ranya Boonmee, Kaew Kongmuang and Manus Boonmee the defendants were found guilty of retaining Burmese workers, including children, illegally for the purpose of enslavement and compelling them to work in slave like practices.302

(l) Freedom from exploitation

The ICESCR and AHRD assert that children should be protected from economic and social exploitation,303 calling for States to prohibit the paid employment of a child under a set age limit and making it punishable by law, as well as making it punishable by law to employ a child in work harmful to their morals or health or dangerous to life or likely to hamper their normal development.304 Under Thai law it is illegal to employ anyone under the age of 15.305 Under the Child Act it is forbidden to ask or employ a child to work in a way that might be physically or mentally harmful.306

The CRC reiterates the above and adds the provision that States shall provide for appropriate regulation of hours and conditions of employment.307 Chapter 4 of the Labour Protection Act 1998 (Labour Protection Act) concerns the employment of child labour and provides regulations including inter alia an employee under 18 must have a one hour uninterrupted rest period for every four hours worked and an employer is prohibited from causing a child to work overtime or on holidays.308

The CRC and the Second Optional Protocol to the CRC also call for the protection of children from sexual exploitation.309 The CRC and the ILO Child Labour Convention assert that States shall take appropriate measures to prevent the use of children in pornographic performances or material or use of children in prostitution.310 The CRC further obliges States
to take measures to prevent inducement or coercion of a child to engage in any unlawful sexual activity.311

Under the Child Act it is forbidden to force, threaten, induce, encourage, consent to or allow a child to be used as an instrument of performing or acting in a pornographic manner.312 Under the Prostitution Act a person who is the owner, supervisor or manager of a prostitution business or establishment or controller of prostitutes in a prostitution establishment shall be liable to imprisonment. The term is increased if the business or establishment has prostitutes not over the age of 18 and increases further if said prostitutes are not over 15 years of age.313

2 Qualified Rights

(a) Freedom to manifest ones religious beliefs

Freedom to manifest one's religion or beliefs is a provision of both the CRC and ICCPR which may be subject to such limitations as prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.314 The Thai Constitution provides a similar provision; that one is free to exercise religious worship provided that it is not contrary to his civic duties, public order or good morals.315 Disturbing a lawful religious meeting or insulting a place of worship are both illegal acts punishable by imprisonment under Thai law.316

(b) Adequate standard of living

The right to an adequate standard of living is a provision of the ICESCR and AHRD317. This includes inter alia adequate food and housing to be realised through international cooperation based upon free consent318 and, under the soft law of the AHRD, adequate drinking water.319 The right to adequate food is to be realised progressively and relates to physical and economic access to food, not a specific measurement of food.320 Those who are not of Thai nationality or who have not been authorised to enter Thailand under immigration laws cannot work in Thailand,321 so will have no economic means to attain food. The right to adequate housing means that "all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats".322 It is illegal for stateless people, asylum seekers and refugees to own or rent property in Thailand.323 Conditions in the refugee camps do not provide protection from harassment and threats.324

(c) Right to education

The right to education is a provision of the CRC, ICESCR and AHRD.325 Under the Thai Constitution a person shall receive equal right to education for not less than twelve years provided by the State free of charge.326 The ICESCR requires a plan, 2 years after acceding, to be submitted to the CESCR aiming at guaranteeing free compulsory primary education for all children.327 The CRC calls for the progressive realisation of the same end.328 Thailand's report to the CESCR stipulated that 93.8% of primary age children were in education, asserting that it already accomplished its commitment in compliance with this provision, no plan was submitted.329 According to UNICEF however only 75.3% of children in Thailand of primary school entry age are in education.330

Asylum seekers, refugees and stateless children are not allowed to receive education unless inside a designated refugee camp.331 There are signs however that the Ministry of Education (MOE) are including migrant and refugee populations in their educational policies;332 listed as a partner organisation to the UNHCR in Thailand.333 The MOE have provided technical
assistance to ZOA, an NGO that has worked to maintain education in seven of the refugee camps.334