I write on behalf of Human Rights Watch to highlight our very serious concerns about the proposed Act on the Operations of Not-for-Profit Organizations (the “Act”), and formally submit these comments and recommendations for consideration by Thailand’s Council of State as part of the public hearing process on this draft law. Human Rights Watch is a nongovernmental organization that monitors and reports on human rights in more than 100 countries around the world. We have documented the human rights situation and advocated for human rights in Thailand for more than 30 years.
The proposed Act conditions the right to freedom of association on compliance with an ill-defined registration process and allows for arbitrary and discriminatory revocation of organizational registrations, permits intrusive supervisory powers, and places unjustified restrictions on the use of foreign funding. The Act is fundamentally at odds with international human rights standards and Thailand’s international obligations, and should be fully withdrawn.
International Legal Standards
The right to freedom association is a fundamental norm of international law. Article 22 of the International Covenant on Civil and Political Rights (ICCPR), to which Thailand acceded on October 29, 1996, states:
Everyone shall have the right to freedom of association with others … No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others.
The United Nations Human Rights Council has repeatedly stressed the importance of freedom of association in a democracy:
[T]he rights of freedom to peaceful assembly and of association are essential components of democracy, providing individuals with invaluable opportunities to, inter alia, express their political opinions, engage in literary and artistic pursuits and other cultural and social activities, engage in religious observance or other beliefs, form and join trade unions and cooperatives and elect leaders to represent their interests and hold them accountable.
The right to form and join an association is an inherent part of the right to freedom of association. Thus, any restriction on the right to form an association can only be justified if it can be shown to be “necessary in a democratic society” to protect national security or public safety, public order (ordre public), public health or morals or the rights and freedom of others.
These restrictions mirror those found in the ICCPR, article 21 on the right to peaceful assembly. The UN Human Rights Committee, in its General Comment No. 37, has interpreted this language to mean:
Restrictions must therefore be necessary and proportionate in the context of a society based on democracy, the rule of law, political pluralism and human rights, as opposed to being merely reasonable or expedient. Such restrictions must be appropriate responses to a pressing social need…. They must also be the least intrusive among the measures that might serve the relevant protective function. Moreover, they must be proportionate, which requires a value assessment, weighing the nature and detrimental impact of the interference on the exercise of the right against the resultant benefit to one of the grounds for interfering. If the detriment outweighs the benefit, the restriction is disproportionate and thus not permissible.
Mandatory Registration Requirement
Section 5 of the Act requires not-for-profit organizations not currently registered under existing laws to register “under the criteria, methods and conditions prescribed by the Minister” in order to operate in Thailand. Anyone operating an unregistered not-for-profit organization can be imprisoned for up to five years, fined up to 100,000 baht (US$3,200), or both.
A mandatory registration requirement is an impermissible restriction on freedom of association under article 22 of the ICCPR. Freedom of association is a right, and not a privilege that must first be granted by the government to citizens. As the UN Special Rapporteur on the rights to freedom of assembly and of association has stated, “the right to freedom of association equally protects associations that are not registered.”
Individuals involved in unregistered associations should be free to carry out any activities and should not be subject to criminal sanctions. As the Special Rapporteur noted: “This is particularly important when the procedure to establish an association is burdensome and subject to administrative discretion, as such criminalization could then be used as a means to quell dissenting views or beliefs.”
While the state can and often does provide additional rights and benefits to a legally registered entity, the decision to register must be voluntary. Under international law it is critical that individuals retain the right to associate without registering a legal entity.
Lack of Clear Standards and Procedures for Assessing Registration Applications
For those organizations that choose to apply for registration, the Act fails to specify the criteria that will be used to determine whether or not a registration will be accepted. Instead, the “criteria, methods and conditions” for registration are left to the unfettered discretion of the minister of interior. In doing so, the Act leaves open the possibility that applications may be arbitrarily denied. The Ministry of Interior in Thailand is, among other things, responsible for internal security on the country. International best practice in civil society regulation and registration schemes makes clear that the most appropriate government agencies to oversee such efforts are precisely those that do not have a security mandate, but rather have a history of effective knowledge and positive engagement with civil society organizations.
The lack of a clear application process is also inconsistent with international standards for the protection of freedom of association. Under international law, “the formation of associations or organizations should not be subject to a prior authorization process, but rather regulated by a system of notification that is simple, easily accessible, non-discriminatory and non-onerous or free of charge.”
The Act allows no right to appeal a denial of registration. It thus provides no safeguards against the use of the registration process to subject to criminal punishment those groups critical of the government, or those representing marginalized or disfavored groups. The lack of recourse to a judicial authority is inconsistent with principles of freedom of association.
Restrictions on Uses of Foreign Funding
The UN Special Rapporteur on the rights to freedom of assembly and of association has stated that “any associations, both registered and unregistered, should have the right to seek and secure funding and resources from domestic, foreign, and international entities, including individuals, businesses, civil society organizations, Governments and international organizations.”
While the Act does not completely prohibit registered not-for-profit organizations from receiving funds from non-Thai sources, they can do so “to fund only activities in the Kingdom as permitted by” the minister of interior, and must notify the authorities before accepting the money. These limitations impermissibly interfere with the right to freedom of association. On a practical level, such regulations also pose an unacceptably high, and perhaps insurmountable, administrative challenge to small NGOs and people’s organizations that lack the technical capacity and personnel required to navigate the opaque, arcane, and often unaccountable bureaucratic processes that characterize the Ministry of Interior.
The UN Human Rights Committee has held that “the right to freedom of association relates not only to the right to form an association, but also guarantees the right of such an association freely to carry out its statutory activities.”  Restrictions on the source or use of funding that impede the ability of associations to pursue lawful activities are inconsistent with international standards for the protection of the right to freedom of association.
Potential Control Over Activities of Registered Organizations
Section 5 of the Act states that not-for-profit organizations “must act in compliance with the criteria, methods and conditions prescribed by” the minister of interior. By leaving those “conditions” to the discretion of the minister, the Act can be used to control or prevent legitimate activities by associations, such as expression critical of government policies or other protected activities. It thus impermissibly interferes with the ability of individuals to “freely carry out any activities” that do not violate existing law. Not-for-profit organizations should be able to conduct all lawful activities, free from arbitrary government restrictions.
Intrusive Supervisory Powers
The Act permits the authorities to enter the offices of not-for-profit organizations to inspect “the use of money or materials, or the implementation of activities,” and to obtain electronic communications, without any evidence that the organization is engaged in unlawful activity. These intrusive supervisory powers, which have no procedural or due process safeguards and permit the authorities to enter the premises with no advance notice, violate the privacy rights of the association and the right to freedom of association.
The law should specifically define the grounds for possible inspections, and inspections should only take place if there is suspicion of a serious violation of the Act. The rules governing inspections should also contain clear definitions of the powers of inspecting officers, ensure respect for the right to privacy of the clients, members and founders of the associations, and provide redress for any violation of those rights. Finally, the law should require advance notice of any inspections.
The Act provides only one, draconian, penalty for violation of its terms by a not-for-profit organization – the revocation of its registration. Since, under the Act, an unregistered organization is unlawful, revocation of the registration effectively dissolves the association.
The use of such an extreme penalty for even the most minor infraction is a disproportionate penalty and, as such, violates the right to freedom of association. The dissolution of an association should always be a measure of last resort, such as when an association has engaged in conduct that creates an imminent threat of violence or other grave violation of the law, and shall never be used to address minor infractions. It should be strictly proportional to the legitimate aim pursued and used only when softer measures would be insufficient.
Thailand’s Council of State should:
- Recommend that the Act on the Operations of Not-for-Profit Organizations be withdrawn, and call upon the Thai government to undertake a fully participatory and consultative process premised on the principle that civil society registration processes should be voluntary and should facilitate, rather than restrict, civil society activities.
- Should the Council of State continue its consideration of the draft law despite its fundamental problems, it should make the following recommendations:
- Amend section 5 to eliminate the mandatory registration requirement. Registration should be voluntary, and the act should explicitly allow unregistered groups to operate.
- Amend section 5 to set forth clearly defined criteria for registration, in line with international standards for the protection of freedom of association. The standards for registration should not permit denial of registration based on the purposes or political views of the association unless the purpose of the association is unlawful under existing legislation.
- Amend section 6 to remove the power of the minister of interior to approve or disapprove of the uses of foreign funds or resources. Not-for-profit organizations should be permitted to use funds, whether from domestic or foreign donors, for any lawful activity.
- Amend section 6 to explicitly state the grounds on which the authorities may inspect the offices of a not-for-profit organization under the Act, and to require advance notice of any such inspection. Inspections should only be permitted if there is suspicion of a serious violation of the Act which should be specified as part of the advance notice of inspection. If there is a suspicion that the not-for-profit organization has violated some other law, the authorities should follow established legal procedure for investigations of violations of those laws, which generally require application for a warrant.
- Repeal section 7, which requires prior notification before receipt of any foreign funds.
- Amend section 9 to provide a range of possible penalties proportionate to the violations being penalized, including removing the penalty of imprisonment for infractions. The penalties should be consistent with the principle of proportionality, that is, they must be the least intrusive means to achieve the desired objective.
- Amend the Act to provide recourse to administrative appeal, and then to judicial review for acts taken by the authorities under the law, including denial of registration, revocation of registration, and abuse of supervisory powers. Ensure such appeal processes to both higher administrative authorities, and to the courts, are transparent, not subject to undue delays, and provide procedural and due process protections.
We appreciate your attention to this matter, which can have far-ranging impact for civil society organizations in Thailand and the millions of Thais who benefit daily from their activities, services, and programs.
Legal and Policy Director
Human Rights Watch
 Draft Act on the Operation of Not-for-Profit Organizations. Copies of the draft law in Thai and in English on file with Human Rights Watch.
 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, entered into force March 23, 1976, 999 U.N.T.S. 171, reprinted in 6 ILM 368 (1967), http://www.ohchr.org/EN/ProfessionalInterest/Pages/OPCCPR1.aspx (accessed September 1, 2014), article 22.
 Human Rights Council Resolution 15/21, “The Rights to Freedom of Peaceful Assembly and of Association,” October 6, 2010, A/HRC/RES/15/2, Preamble. See also Human Rights Council Resolution 21/16, “The Rights to Freedom of Peaceful Assembly and of Association,” October 11, 2012, A/HRC/RES/21/16; Human Rights Council Resolution 24/5, “The Rights of Freedom of Peaceful Assembly and of Association,” October 8, 2013, A/HRC/RES/24/5.
 UN, “Report of the Special Rapporteur on the Rights to Freedom of Assembly and of Association, Maina Kiai” (2012), UN Doc. A/HRC/20/27 (“Kiai Report 2012”), para. 53.
 ICCPR art. 22(2).
 Human Rights Committee, General Comment No. 37, CITE, para. 40.
 Kiai Report 2012, para. 56.
 OSCE/ODIRH, “Guidelines on Freedom of Association” (“OSCE/ODIRH Guidelines”), 2015, https://www.osce.org/files/f/documents/3/b/132371.pdf, par. 48 (“Legislation must recognize both information and formal associations or, at a minimum, permit the former to operate without this being considered unlawful.”).
 Kiai Report 2012, par. 56.
 UN, “Report of the Special Rapporteur on the Rights to Freedom of Assembly and of Association, Maina Kiai” (2013), UN Doc. A/HRC/23/39 (“Kiai Report 2013”), para. 17.
 ILO, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, fifth (revised) edition (Geneva 2006), cited with approval in Kiai Report 2012, para. 61.
 Kiai Report 2012, para. 68.
 Act on the Operation of Not-for-Profit Organizations, sec. 6.
 Ibid., sec. 7.
 Kiai Report 2013, para. 36 (obligation to obtain authorization from the authorities to obtain or use funds constitutes a human rights violation); OSCE/ODIRH Guidelines, paras. 222-223 (noting that constraints such as requiring associations to obtain government approval prior to receiving foreign funding, imposing excessive reporting requirements, and banning or restricting foreign-funded associations from engaging in human rights, advocacy or other activities violate article 22 of the ICCPR.)
 See UN Human Rights Committee, Korneenko v. Belarus, Communication 1226/2003, CCPR/C/105/D/1226/2003 (finding imposition of fine for use of computer provided as untied foreign aid violated freedom of association). See also, Kiai Report 2013, para. 16.
 Kiai report 2012, para. 65.
 OSCE/ODIHR Guidelines, para. 231.
 UN Human Rights Committee, Korneenko v. Belarus, Communication 1274/2004, CCPR/C/88/D/1274/2004 (finding dissolution of unregistered association was disproportionate and violated freedom of association).
 Kiai report, 2012, para. 75 (dissolution “should only be possible when there is a clear and imminent danger resulting in a flagrant violation of national law, in compliance with international human rights law.”); OSCE/ODIHR Guidelines, para. 239 (dissolution “should only be applied in cases where the breach gives rise to a serious threat to the security of the state or of certain groups, or to fundamental democratic principles.”).