Thailand Law Journal 2014 Spring Issue 1 Volume 17

D. Child Protection Act (2003)

The Child Protection Act (“Child Act”) was a step in the right direction, but respected Thai scholars are very critical of the Child Act because of its absence of procedure.⁴⁴ The Child Act lists protections without describing how any of these protections are guaranteed. For example, the Child Act lists behaviors that constitute unacceptable treatment of children in Articles 25, but it does not provide any punishment for such mistreatment.⁴⁵ Article 43 addresses cases where the abuser of the child is a parent or guardian, but the provision does not include details for how the abused child can be protected from his or her parent.⁴⁶ Article 61 provides that a parent or guardian is forbidden to “assault, physically or mentally, detain, abandon or impose any other harsh measures of punishment” on any child under his or her care, unless “such acts are reasonably applied for disciplinary purposes in accordance with the regulations specified by the Minister.”⁴⁷ As translated into English, these abusive acts would never be considered reasonable discipline measures.

Unfortunately, the Child Act does not bestow authority on psychologists or social workers. Consequently, psychologists and social workers working with children often worry that they will be sued by the child’s parents and in many cases, fear of liability prevents them from adequately helping the child.⁴⁸ Article 33 of the Child Act illustrates this point. The Article lists ways that a “competent official or person having the duty to protect a child’s safety” should protect a child, but then undermines the person’s authority by requiring permission from the child’s guardians, permanent secretary, or provincial governor.⁴⁹

Because of the Child Act’s limitations, a working group is drafting a new act to replace the existing one.⁵⁰ The draft will be finished next year, but the group must also campaign the public to pressure Parliament into adopting the Act. They are currently lobbying professional groups, like psychiatrists and pediatricians, to support the new draft. The working group expects that the new act will be adopted within two years of August 2013.⁵¹

Additionally, the current National Child Protection Committee is made up of ministry officials, many of whom do not have any professional experience working with children.⁵² Since the committee is an advisory committee and not a policy-making committee, there is no need for ministry officials to serve on the committee.⁵³ The new draft will have the Minister of MSDHS serve as chairperson and the permanent secretary of MSDHS serve as vice-chairperson, but the rest of the members will be people from other professional groups of child psychologists, social workers, teachers, pediatricians, and lawyers, not ministry government officials.⁵⁴

In addition to these committee changes, the new act will be devoted to setting out legal procedures to implement the child’s protected rights. Local governments will have specific duties in regards to implementing the law.⁵⁵

Recommendations

These recommendations are based on the current Child Act and are relevant to the new draft.
1. Committees should be made up of child experts and not government officials where appropriate.
2. Each article should have clear legal procedures with step-by-step numbers, as opposed to the numerous paragraphs that currently appear within each article. The current layout makes each article’s provisions difficult to follow.
3. Social workers, psychologists, and others working to protect children should be given exemption from liability except in cases of negligence or abuse of power. Each professional group should create ethics’ guidelines that holds each employee accountable.
4. In the English version, the word “abuse” should be substituted for the word “torture.”
5. Local governments and police should be required to submit their reports to a national database kept by the MSDHS Headquarters.
6. The second phrase of Article 61, “unless “such acts are reasonably applied for disciplinary purposes in accordance with the regulations specified by the Minister,” should be deleted. A guardian of a child should always be forbidden physically or mentally assault, detain, abandon, or impose any harsh punishments on a child.⁵⁶ No exception is needed as these acts would never be considered reasonable discipline towards any child, or adult.
7.  For ease of reference, penalties should be listed under each crime, instead of in a separate article at the end of the document.

E. Witness Protection Act (2003)

The Witness Protection Act provides a special procedure for certain witnesses in six particular types of cases. A trafficking victim might be a witness in four of the six cases:

(5) case that punishable for 10 years of imprisonment or heavier;
(6) case that Witness Protection Bureau deemed appropriate to arrange for protection.⁵⁷

A witness for one of the above listed types of cases is eligible for special protection measures, which include new accommodation, daily life expenses for up to two years, changing the first name, family name, or other sensitive information, help for education or occupational training, assistance with legal rights, and body guards for the necessary period of time.⁵⁸These special protection measures can also be arranged for any of the witness’s close family members or friends.⁵⁹ These measures are ended at the witness’s request; if the witness fails to comply with Ministerial rules; if a change of circumstances no longer require protection measures; if the witness irrationally refuses to give testimony; or if a court delivers final judgment against the witness for false testimony.⁶⁰

Anyone who discloses information such as the witness’s name, place of residence, family members’ names, or photographs is liable to imprisonment for one to two years and a fine of 20,000 – 40,000 Baht, depending on whether the disclosure caused bodily or mental injury.⁶¹ If the person acted with intent, he is liable to a one and a half times heavier punishment.

In addition to establishing these special protections, the Witness Protection Act also provides for the remuneration and payment of witnesses.⁶²

Recommendations

1. The United States Witness Relocation and Protection program⁶³ provides that before a witness enters the witness protection program the attorney general enters into an MOU with the witness. The MOU sets forth the responsibilities of the witness, including the agreement to testify, to not commit a crime, to avoid detection by others to the extent possible, to comply with legal obligations and civil judgments, to comply with all reasonable requests of government officers and employees, to disclose any legal obligations or parole responsibilities.⁶⁴ The MOU also sets forth the protections that the witness should expect from the attorney general.  Thailand should consider adopting a similar provision in their next Witness Protection Act so that the witness, the public prosecutor, the judge, and other interested parties can rely on a document which governs the parameters of the witness’s protection.

F. The Anti-TIP Act (2008)

Thailand marked a milestone on October 17, 2013 when, after twelve years of work, it ratified the United Nations Convention against Transnational Crime and the accompanying Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.⁶⁵ Thailand had first signed the Convention on December 13, 2000 and the Protocol on December 18, 2001, and had been working to ratify the instruments ever since.⁶⁶