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THE MACR UNDER THAILAND LAW The Convention on the Right of the Child (CRC) ratified by Thailand in 1992.

International conventions including the Convention on the Rights of the Child do not have direct effect in Thai law, and the rights contained therein must be incorporated into national law to be enforceable. The CRC has as a whole not been directly incorporated as such, meaning that its provisions can only be directly invoked by domestic courts and local agencies where they have been enacted in national laws. The Juvenile and Family Courts can use the Convention in interpreting domestic laws, but where there is a contradiction between national law and the CRC, national law will prevail. Constitution: Chapter III of the Thai Constitution contains a number of rights provisions that apply to children as to other citizens, but a small number of child specific provisions are also found throughout the Constitution: Art. 40(6): provides that children, youths, women, and disabled persons have the right to proper protection during the judicial process and proper treatment in cases related to sexual violence. Art. 52: contains several rights that apply specifically to children. Children and youths shall have the right to survive and receive physical, mental and intellectual development according to their potential in a suitable environment; children, youths, women and family members shall have the right to be protected by the State against violence and unfair treatment and must have the right to receive remedies with regards to this right; any interference or restriction on the rights of children, youths or family members is prohibited except as in compliance with the provisions of a law specifically enacted to preserve family status and the maximum benefit to persons involved; and children with no guardian have a right to receive proper care and education from the State. Art. 80(1) requires the State to implement policies to protect and develop children and to support their education. Art. 84(7): requires the State to implement economic policies to protect children with regards to employment. Art. 152: makes provision for the special consideration of laws related to children, women, and the elderly and disabled persons.

Legislation: there is no comprehensive or consolidated Children's Act in Thai law; rather, legislation related to children's rights can be found throughout a number of acts, some of which are specifically targeted at children. Relevant legislation includes, but is by no means limited to: The Child Protection Act 2003 The Penal Code (amended 2007) The Criminal Procedure Code (amended 2007) The Juvenile Family Court and Juvenile and Family Procedure Act 2010 The Child Adoption Act 2010 The Anti-Trafficking in Persons Act 2008 The National Child and Youth Development Promotion Act 2007 The Domestic Violence Victim Protection Act 2007 The Compulsory Education Act 2002

The Promotion of Non-Formal Education and Informal Education Act 2008 The Persons with Disabilities' Quality of Life Promotion Act 2007 The Civil Registration Act 2008 The Nationality Act 2008 The Alcoholic Beverage Control Act 2008 The Labour Protection Act (amended 2008)

Article 40(3) (a) of the CRC obliges States parties to establish a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. This CRC language and relevant text from the 1985 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (see Article 40 (3)(a) below) may be condensed and restated in the following basic definition: The minimum age of criminal responsibility (MACR) is the lowest age at which children may potentially be held criminally liable for alleged crimes. In general, it is the lowest age at which children in a given country can be prosecuted in any court, and is therefore a fundamental concern for the protection of childrens rights and juvenile justice. Children younger than MACR for whom there is no possibility of criminal responsibility should still be held accountable for their actions, but they must be held accountable by entirely non-punitive, welfare and education oriented measures. Furthermore, all children, both younger and older than MACR, are entitled to full protection of their rights and dignity in accordance with the convention on the Rights of the Child (CRC) and other international juvenile justice standards.1 Convention on the Rights of the Child (CRC) (1989) Article 40: 3. State Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a.) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) (1985) 4. Age of Criminal Responsibility 4.1 In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. Talking about MACR (Minimum of Age Criminal Responsibilities) previously talked about juvenile system. Juvenile system in Thailand has been based on the assumption that young offenders are not considered to be criminally responsible for their actions and they should not to be treated the same as adult. Children aged ten and younger are not punishable under Thai law, and the criminal code does not allow for any kind of punishment to be levied upon any person below 14 years of age. It

UNICEF, South Asia and The Minimum Age of Criminal Responsibility,2005

had been the practice to send juvenile delinquents to a vocational school under the Primary Education Act of 1935 or to a reformation school under the Act on Instruction and Training of Certain Classes of Children of 1936 for treatment after trial rather than having them imprisoned. According to The Juvenile and Family Procedure Act 0f 2010 (hereinafter called Juvenile Justice Procedure) outlines special methods and procedures for juveniles in the criminal justice system, particularly when juveniles are alleged offenders. Juvenile Justice Procedure stipulates the limits of criminal responsibility based on the ages of juveniles as the following: Child means a person whose age is not more than 5 years old and A juvenile person means a person whose age is between 5 and 18 years old. In the event where a juvenile is an alleged offender in a criminal offence. The special methods and procedures in the Juvenile Justice Procedure for an alleged juvenile offender are different from the adult procedures as follows: Arrest of a juvenile shall be made gently with respect to human dignity, without causing any physical harm, mental effect or disgrace to such juvenile. Arrest of a juvenile without a warrant is prohibited unless there is a fragrant offence according to the Criminal Procedure Code. In issuance of warrant, court must take into account the interest for protection of rights of juvenile. If the issuance of an arrest warrant would render unnecessary affect the mental condition of the juvenile, the court shall try to avoid the issuance of an arrest warrant and first use alternative mean to approach the juvenile. The arresting officer or custodial official must, without delay, report the arrest parents, guardian or person or organisation with whom juvenile lives and bring juvenile to inquiry official. The enquiry official shall promptly inquire information about juveniles parent and guardian or other person or organisation with whom juvenile lives, and report the arrest to the Director of a Juvenile Observation and Protection Centre. Juvenile offender shall not be detained with adults or in a jail intended for adult offenders The use of chain or any kind of bond with child under 15 years of age is prohibited The inquiry official must bring juvenile to court within 24 hours Upon receipt of juvenile, the court can order release or, if necessary, to detain juvenile at the Juvenile Observation and Protection Centre or other place as seen appropriate. The court shall appoint legal consultant for juvenile if found that the juvenile has not yet have a legal consultant. Upon receipt of the juvenile, the Director of the Juvenile Observation and Protection Centre must shall provide juvenile with clean up and change of clothes, physical examination by a physician and, if reasonable, mental examination by a psychologist and appropriate medical facility etc.

Special methods above show seriousness from Thailand to protect children from the court, all the methods give the specificity to child when children alleged as offenders and must be charged in court. Base on this condition Thailand also concern how to prevent children from the court. Juvenile court or juvenile system maybe the best option to protect children right when children dealing with court but the most important beside that is how to decrease number of children from facing the court. To realize this effort need some desire to follow the condition which served by International framework to set the minimum age of responsibility which is called as MACR. In advance already be

explained how the idea of MACR established by the CRC in article 40 (3) (a) and Thailand engage that provision to try diminish the number of children whose dealing with court. Minimum Age of Children Responsibility in Thailand is set to 7 (seven) years old by the government in the provision regarding the juvenile law in Thailand. Children under 7 (seven) years old are not liable to criminal punishment. According to Kattiya Ratanadilok, Psy.D. , In 2008, Thailand raised the age of criminal responsibility from 7 years old to 10 years old. Between the years 2006 to 2008 there were 1.083 children aged between 7 to 12 charged with crimes, and 234 of them were children between the ages of 7 to 10.2 Thailand as a country thats become a party of the CRC and has commitment to this provision about the children will not be charged by the law at the young age, according to the explanation above, Thailand has concerned to set the minimum age of children whose exercise crimes. This condition mentions that Thailand has no obstacle to adjust the MACR from the international set to Thailands domestic law as well as the protection of the children according to CRC. According to UNICEF, the Convention details the fundamental rights that all nations must guarantee for their children. These include childrens right to: Survival to basic healthcare, peace and security; Development to a good education, a loving home and adequate nutrition; Protection from abuse, neglect, trafficking, child labour and other forms of exploitation; and Participation to express opinions, be listened to and have voice in decisions that affect their lives.

Every five years, each country must provide a progress report to committee on the rights of the child. The committee is based in Geneva and it monitors each countrys effort to guarantee the rights laid out in the Convention. After considering Thailands latest report in 2012, the committee noted many successes, including setting up legislation and state structures for the protection of children and their rights. But the committee also highlighted a number of areas of concern and recommendation, including: Protection the rights of asylum seeking and refugee children; Ensuring full and effective implementation of national legislation; Ensuring adequate national budget and resources; Strengthening early detection and prevention mechanisms and ensuring full protection of child victims of sexual exploitation and abuse; Ensuring access to basic services for the most vulnerable, including minority children; refugees; asylum seekers; migrant children; street children; children with disabilities, children in poverty; children affected by the violence in the far south; children in conflict with the law; children who have been trafficked or otherwise abused;

Kattiya Ratanadilok, Consequences of Raising Minimum Age of Criminal Responsibility of Thai Young Offenders, p.1, http://ssrn.com/abstract=1773548.

Raising the minimum age of criminal responsibility beyond the current 12 years of age and ensuring that detention issued as a last resort and for as short a time as possible; Monitoring and data collection; and Ensuring equality between regions and group in Thailand

All the highlight that committee suggest based on the report of Thailand progress during the implementation of CRC to promote these convention on Thailand law, Base on the report obvious to see that committee also made the highlight to raise the minimum age of criminal responsibility. Thailand actually attempts to increase the age of criminal responsibility to 12 years old but this situation creates consequences by raise the age upon that age more. According to the Department of Juvenile Observation and Protections statistics, the number of juvenile delinquents (7 to 18 years old) who were arrested by the police and sent to the Juvenile Observation and Protection Centres across the country increased from 29,915 in 2003 to 51,128 in 2007, and increase of 70.91 % in the space of 10 years. Age 7-14 years old 15-18 years old Total Number of Children and Youths/Year 2004 2005 2006 5,177 5,872 8,078 28,131 30,208 40,140 33,308 36,080 48,218

2003 4,313 25,602 29,915

2007 8,888 42,240 51,128

Table above show the children regarding to the age level which arrested or can be stated as children who conflict with the law. Regardless the Minimum Age of Criminal Responsibility itself this circumstance can show the matter about the children whose facing the law, number said in Thailand there are so many children become the subject of crimes. Between 7 to 14 years old among 2003 and 2007 more than 30.000 cases involved the children as well as at the age 15 to 18 years old children whose facing the law increase every year between 2003 to 2007 and total for all the cases approximately 150.000 cases during 2003 to 2007 involved children with 15 to 18 years old. This condition was very pathetic that many children can be arrested every year and always increases annually. This matter actually can be solved by using the guide to use Minimum age of responsibility. Increase the MACR can prevent the children be charged by court. According to Kalyanasuta, Thai law limits childrens criminal responsibility by their age. Children under seven years old are not liable to criminal punishment. Those between seven and 14 are not liable to any punishment either. However, the law gives the court option to use juvenile procedures, depending on the childrens behaviour and environment and other mitigating circumstance. This is to provide, children with opportunity to turn over a new leaf rather than punishing them severely as a deterrent. Above that age (15 years and older), youths may have to face criminal punishment, but the court may use its discretion to reduce the sentence.3 As Noramalina binti Mustaffa noted, a juvenile is any person below 18 years of age. Children under the age of seven years old have no criminal responsibility in Thailand. Children between seven to 14

Kalyanasuta in Shohreh Mousavi and Rohaida Nordin, The Minimum Age of Criminal Responsibility in ASEAN:Legal and Human Right Perspectives, p.7, http://www.academia.edu/1229486 accessed (4/11/2013)

aged 14 to 18 years old can be charged in court, can be imprisoned and can be placed in any training school deemed suitable by the court.4 Overall opinion expressed by scholars generates the viewpoint that Thailand has the law which condition to protect children from be detained or be charged in court. This condition stated that children better send back to their parent or send them to the institution besides court which can give appropriate treat to the children about their fault so children not must be charged in court because when children are very young to facing the court it can cause psychological effect to them and not good for their future. Thawatchai Thaikeo, the director-general of the Juvenile Observation and Protection Department, said that his office will soon propose amendments to Sections 73 and 74 of the Criminal Code to increase the MACR from 10 to 12 to bring Thailand in line with a recommendation by the CRC adopted at the 18th session of the United Nations Human Rights Commission, held last September in Geneva. Thailand has already endorsed the resolution5 The Government had wanted to raise the MACR to 12, but that legislation was reduced to ten years by certain unsympathetic parliamentarians. Attempts to increase the MACR to 12 years old were modelled after many developed countries. Moreover, this change in the law was pushed forward by the needs to follow the suggestion of the UNCRC. Also there are attempts to divert as many cases of children in conflict with law out of the justice system6 Nevertheless, the concept of MACR very acceptable in Thailands law although there is still a polemic to set the minimum age persistent at 10 years old or increase the minimum age to 12 years old based on committee suggestion. Furthermore when MACR already fixed another condition must be considered is how to apply the concept so that the idea of MACR steady preserved. Age below the MACR based on this concept cannot be charged by court because at the age below the MACR children assumed have no liability to responsible to their guilty that related to the criminal responsibility. There are several alternative can be used when children come into the conflict with the law. Children who come into conflict with the law as offenders need to be surrounded by a protective environment that gives them every opportunity to avoid further conflict and develop positive life skills. This means:7 Training of all relevant authorities on dealing with child offenders and creating childsensitive procedures for police, the court system and the detention or alternative systems. A diversionary system that channels children away from the formal justice system to alternative programmes.

Noramalina binti Mustaffa in Shohreh Mousavi and Rohaida Nordin, The Minimum Age of Criminal Responsibility in ASEAN:Legal and Human Right Perspectives, p.7, http://www.academia.edu/1229486 accessed (4/11/2013) 5 Tunya Sukpanich in Shohreh Mousavi and Rohaida Nordin, The Minimum Age of Criminal Responsibility in ASEAN:Legal and Human Right Perspectives, p.7, http://www.academia.edu/1229486 accessed (4/11/2013) 6 Kattiya Ratanadilok, Consequences of Raising Minimum Age of Criminal Responsibility on Thai Young Offenders 7 UNICEF EAPRO Fact Sheet for the Seventh Ministerial Consultation and Save the Children UK fact sheet: www.crin.org/docs/sc_facts.doc

Restorative justice approaches, which make offenders responsible for reparation of harm caused and help them understand their actions and find ways to change their behaviour through counselling and other conflict resolution methods. Alternatives to detention, such as a police caution or warning; a written or verbal apology; written essays on the effects of the crime committed; community service/work; restitution to the victim; participation in a life skills course or counselling or therapeutic treatment for drug or alcohol abuse

Those alternative just as a consideration to overcome the children who come into conflict with the law as offenders but still not reached the minimum age of the child to responsible their crimes. When the country has the commitment to determine the minimum age of criminal responsibility to confine age which can be prosecuted, detained or charged by court then all the condition to promote that condition must be prepared so the implementation can be easy to obtain. In Thailand MACR already applied decently, obviously seen that the real obstacle which Thailand has only about the supporting system to supported MACR for implementation, regarding the age which Thailand set as a minimum age of criminal responsibility doesnt take any problems because it is only talk about time. When Thailand government ready to follow and apply the suggestions from committee the age level of criminal responsibility can increase to the specific age offered by committee. Recommendations to improve the supporting systems are the following: Standard procedure of the rules and regulations on appropriate ways to process the cases of children under the age of criminal responsibility should be created. All of the related personnel including but not limited to police officers, child protection personnel, and other staff should be well informed and trained to work with the children and their families and to provide appropriate treatment, intervention, and prevention programs specifically designed for this condition.