Public Statement to condemn the biased and inadequate public consultation of the Draft Act on the Operation of Not-for-Profit Organizations B.E….by the Ministry of Social Development and Human Security

The Ministry of Social Development and Human Security designated pursuant to the cabinet resolution on 4 January 2022 to be in charge of the Draft Act on the Operation of Not-for-Profit Organizations B.E….prepared by the Office of Council of State with approval from the cabinet. This involved undertaking a public consultation and public assessment of the draft law as required by Section 77 of the Constitution of the Kingdom of Thailand and the Act on Criteria for the Drafting of Law and the Evaluation of the Achievement of Law B.E. 2562 prior to further submission to the cabinet. The public consultation by MSDHS was carried out from 18 January until 1 April 2022. Criticisms and opposition have, however, been publicly leveled against the draft law by civil society sector including human rights organizations, nationally and internationally. All in all, they deem that the Draft Act on the Operation of Not-for-Profit Organizations B.E.. contains provisions which infringe on rights and freedoms enshrined in the Constitution and international human rights treaties, particularly freedom of association and freedom of expression. This will have immense and adverse ramifications on the effort to promote public participation in a democratic society. Calls have thus been made for the government to immediately suspend and withdraw the draft law. Meanwhile, MSDHS has been made aware of the input and opposing views expressed by various public groups through the public consultation channels and various other public activities.

Nevertheless, MSDHS has failed to uphold its duties as an impartial agency to listen to opinions of the people who could be affected by the draft law. As it has turned out, on 3 March 2022, MSDHS through the Committee to Further the Implementation of the Draft Act on the Operation of Not-for-Profit Organizations B.E… has issued an order no. 1/2565 to establish the Taskforce to Publicize and Further the Implementation of the Draft Act on the Operation of Not-for-Profit Organizations B.E… to determine the direction and goals, to supervise and to enhance public relations of the draft law.

And on 25 March 2022, the Director General of the Department of Social Development and Welfare has issued a most urgent letter addressed to the Director of the Community Organizations Development Institute (CODI). It reads in brief that the Minister of Social Development and Human Security has instructed the Department of Social Development and Welfare to prepare an explanatory document in response to any misunderstanding about the principles and rationale of the Draft Act on the Operation of Not-for-Profit Organizations B.E…as a result of which negative feedback has been made by not-for-profit organizations against the Bill. The Department of Social Development and Welfare has thus prepared the document and call on the Community Organizations Development Institute (CODI) to help disseminate it among community organizations and concerned civil society organizations to enhance their understanding of the Draft Act on the Operation of Not-for-Profit Organizations B.E…pursuant to the intentions of the draft law.

In the explanatory document, it claims that NPOs harbor five misunderstandings about the draft law including on issues concerning the regulation of NPOs, the restriction of freedom of association, the restriction of rights and freedoms to carry out activities, the restriction of rights and freedoms to receive funding support or donation, and the excessive regulating power bestowed on the registrar. To these, the Department of Social Development and Welfare explains that the draft law has been designed to ensure the state can “supervise” rather than “control” an NPO. It does not require an NPO to get registered or to apply for permit to establish their group. Any formation of group can conveniently be made, and it does not inflict unnecessary burden on the public. An NPO is still fully entitled to rights and freedoms to carry out any activity within the framework of their founding objectives. The state will simply exert its control on activities whose nature resembles what is provided for in Section 20. An NPO can still enjoy freedom to receive funding support or donation from within or outside the country, although if the funding or donation is made from a foreign source, the receiving organization is required to report it to the registrar and has to make use of the funding strictly according to its objectives. In addition, the registrar’s power according to this draft law is neither absolute nor uncheckable. Although, it may issue an order to suspend the operation of an organization, it is required to give them a prior warning to rectify its operation. And even if the suspension order has been issued, the targeted organization still retains the right to appeal the order and may challenge it in the Administrative Court.

Formed by human rights defenders, members of the public, activists and civil society organizations, the People’s Movement Against Anti-Association Laws adheres to the view and determination to oppose and refute any versions of the law that dismantle the right to freedom of association, particularly the Draft Act on the Operation of Not-for-Profit Organizations B.E….. We have found the explanatory document and the implementation of various agencies and committees affiliated to MSDHS akin to an act of partiality and a failure to offer straightforward information about the draft law and its impending impacts. They have distorted the spirit and rationale of the public consultation process and the impact assessment of a draft law. Their implementation is therefore illegitimate and unacceptable based on the following reasons;

1. The Ministry of Social Development and Human Security as an agency designated by the cabinet to conduct a public consultation and impact assessment of the Draft Act on the Operation of Not-for-Profit Organizations B.E…is obliged to carry out the process impartially and listen to and compile all opinions regarding the draft law as it should be without making any leading argument. On the contrary, MSDHS has in haste prepared an explanatory document alluding to various misunderstandings which have allegedly led to negative impression toward the Draft Act. This attests to their lack of impartiality, their bias, their lack of respect and their prejudice toward public opinions and will inadvertently ensure the summary report of the public consultation on the draft law and impact assessment lack impartiality, credibility and is unacceptable to the public.

2. The Constitution’s Section 77 states that “…Prior to the enactment of every law, the State should conduct consultation with stakeholders, analyze any impacts that may occur from the law thoroughly and systematically…” and according to the Act on Criteria for the Drafting of Law and the Evaluation of the Achievement of Law B.E. 2562’s Section 12 which states that “In the case that it is necessary to propose a draft legislation, a State agency shall explain the rationale of the necessity in drafting the legislation, by demonstrating that it does not impose an unnecessary burden upon the people; that the utility gained from having the legislation outweighs the burden on the people; and that there are no other measures except the legislation that can achieve the same effect” and Section 14 which states that the information necessary for a public consultation on a draft law shall at least be consisted of (1) nature and causes of the problems and the necessity of drafting the legislation to solve such problem or to carry out certain activity as well as the desirable intention and achievement; (2) explanations of the rationale and important issues of the draft legislation in a simple language; (3) persons who are or may be affected by the impacts or potential impacts of the law, whether it be impacts on the livelihood, or economic, social, environmental impacts or other important impacts; (4) the necessity for the permit system, committee system, and criminal punishment, including the rules on the exercise of discretion by State officials.

But in reality, the drafting of the law has been made possible pursuant to the instructions of the Prime Minister (General Prayut Chan-ocha) whereby the PM , the Office of Council of State, MSDHS and concerned agencies have never demonstrated any concrete evidence that clearly supports the rationale and the necessity to draft such a law. In addition, the drafting of the law has been made without a thorough study and analysis and the disclosure of the result of impact assessment, the information of which is so critical and any agency would be obliged to disclose during the review of the law to aid the understanding and the expression of opinions regarding the draft law by the affected people during the consultation process.

The People’s Movement Against Anti-Association Laws reiterates that there is no misunderstandings within the civil society toward the provisions in the draft law as alluded to by MSDHS and would like to assert our opinions and concerns stemming from our sound studies and analyses based on respect of human rights and democracy and we have raised such concerns to MSDHS and the public already that the Draft Act on the Operation of Not-for-Profit Organizations contains provisions which excessively and adversely infringes on people’s rights and freedoms, interferes with our independence and stifles the exercise of rights and freedoms guaranteed in the Constitution with regard to freedom of association and public participation in public issues as a result of the excessive and vague restrictions imposed on our activities. It elicits a burden to report and disclose information regarding the activity of the civic sector and unnecessarily infringes on our right to privacy of personal information. In addition, excessive mandatory provisions and penalties are imposed and this may give rise to the exercise of power to interpret the law arbitrarily and discriminatorily against NPOs or people’s organizations which perform their duties to scrutinize, criticize or express dissenting views from the government and the power that be simply in exchange of securing the absolute power of a handful of people within the government. The draft law only serves protect the interest of the government and its cronies by preventing the public from holding them to account and to scrutinize public administration of the government which has inherited its power from the NCPO despotic regime.

The People’s Movement Against Anti-Association Laws therefore demands that the Ministry of Social Development and Human Security stop such partial actions and any attempt to distort the intentions and rationale of the public consultation and impact assessment of the draft law. Stop impeding progress, stop denigrating human dignity, and stop being a tool for the government to suppress people’s organizations, groups and movements which hold a different political view. We demand the government immediately stop promoting and advocating the Draft Act on the Operation of Not-for-Profit Organizations.

The People’s Movement Against Anti-Association Laws

7 April 2022