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LAW AND SOCIETY
By William J. Klausner *
IN THAILAND, AS IN OTHER developing countries, there is constant tension between the positive law, as promulgated by the central government authority, and the "living law," or customary behavior. Anthropologists such as Hoebel, Malinowski and Radcliffe-Brown, and novelists such as Vicki Baum, Geraldine Halls and Chinua Achebe, have, from their different perspectives, eloquently delineated the crise culturelle resulting from a confrontation hetween the formalistic legal world, often associated with Westernization and modernization, and the traditional behavior of a society regimented by ceremonial and work cycles; by economic pressures of an impoverished subsistence economy; by taboos, magical-religious sanctions and community judgment; and by traditions and beliefs expressed through such interpreters of the cultural subconscious as spirit doctors and clan chiefs. However, the crisis is not only a cultural one. There are obvious social and political implications as well in an environment where the discrepancy between law and custom is marked. Inevitably, laws will be honored more in the breach than in the observance, and this will result in a loss of respect for the rule of law. This paper will attempt to examine the effects of this imbalance between law and custom in contemporary Thai society and explore ways and means to achieve a congruence and constructive tension between these two forces.
Traditionally, in rural Thailand the social order and solidarity of the village was maintained by recognized and accepted norms of appropriate behavior. Deviations were kept at a minimum through a complex web of family, communal, Buddhist and animist constraints. When conflicts arose they were settled by compromise and consensus, using the charisma and mediation skills of monks, clan heads and spirit mediums. A voluntary restitution of wrongs committed against persons and property followed. Dissatisfaction, or "grievance tension," resulting from the resolution of conflicts, was kept to a minimum.
However, for better or worse, Thai villages no longer remain in splendid isolation. They are being radically transformed and being brought into closer contact with urban society. Government services have expanded, and there has inevitably been increased contact with government officialdom. The state judicial system, with its courts and adversary proceedings, now beckons as an alternative means of conflict resolution. For the most part, the villagers have resisted the temptation, preferring the traditional Thai techniques for setting disputes and minimizing confrontation. At times the state has found it difficult to resist the challenge. In the early eighties the Thai Ministry of Justice sought to encourage the use of courts in even the most remote rural areas by establishing a mobile court system. As might have been predicted, rather than resolving conflicts, social friction and discord were encouraged and exacerbated, and such courts were soon abandoned.
While certain government officials appreciated the potential negative consequences of an adversarial court system, similar failure occurred when at about the same time a pilot project was initiated by a provincial governor to establish in selected villages "pavilions for compromise of disputes." These village courts were to mediate conflicts, thus avoiding the necessity to use the official state court system. Unfortunately, these village courts, imposed from the outside, failed to rely on the informal village leadership elite traditionally responsible or conciliation and mediation. By substituting an additional and external system on this existing structure, social disharmony, rather than concord, resulted. This experiment, as was the case with the mobile courts, also had to be abandoned.
While the villagers, for the most part, continue to adjudicate interpersonal conflicts and actions deemed harmful to communal harmony in traditional ways, they increasingly cannot escape the long arm of State law and power. They find themselves accused of constantly violating certain State laws which are in conflict with traditional behavior. The rationale underlying these laws is often not clear or meaningful to the peasantry. For example, in the absence of legal registration and licensing where applicable, legal prohibitions against the cutting of timber, gambling, fabrication of home made liquor, production of home-made firearms, slaughtering of cattle and buffaloes, etc., are continually circumvented. The villagers follow custom; the authorities, however sporadically, enforce the law. The villagers will cut down enough timber to build a house or rice barn, will brew some rice liquor for a ceremonial feast, will fabricate a home-made shotgun for protection against bandits and for hunting. In most instances the villagers will know such action is illegal but will feel no guilt as they are acting from economic necessity and in conformity with traditional practices sanctioned by the community. In addition, they may not fully comprehend the social, economic and scientific rationales and justifications underlying such laws. There is also an element of winning a battle of wits with officialdom. The villagers, harking back to the fables of the past, identify with the culture hero, Srithanonchai, or his Northeastern counterpart, Siang Miang, born of the peasantry, who conquered the ruling authorities through guile and deceit. It is a game villagers have been playing from time immemorial: how to successfully evade the laws, orders, and burdens perceived as arbitrary and imposed upon them by those in power.
In addition to the above examples of the conflict between law and custom in rural areas, one must note the destabilizing effects of such conflict in the increasingly important arena of environmental protection and land right. Villagers are slowly abandoning their reliance on karma as an explanation for their condition and lot in life. They perceive their state as resulting from the corruption, abuse of power and misallocation of resources by those in positions of power and authority. At the same time the villagers have overcome their traditional aversion to confrontation.(1) The rural populace is now actively resisting actions perceived as inimical to its quality of life and, in some cases, its very survival. There has been steady pressure to modulate the pace of economic growth so as to avoid the devastation of Thailand's dwindling natural resources and the pollution and degradation of the environment. There are daily protests and demonstrations against eviction from long term residency in reserved forest area, the building of dams,(2) industrial waste pollution of rural water systems, and the siting of toxic waste plants and garbage dumps. The villagers are confronting officialdom and demanding that their rights to natural resources be protected, that existing laws safeguarding the environment be enforced and that new legislation he promulgated where necessary.
With the advice and support of non-government organization (NGOs), village organizations (VOs), media and academia, the village populace is asserting itself. The hitherto hidden and muted voices--the "whispers" of the rural poor--are now in full cry and can he easily heard.(3) Authorities have been pressured into stricter enforcement of certain laws and ministerial regulations but to a more flexible approach in others. The environmental lobby has achieved some modest success in obtaining government support for legislation that will acknowledge the right of villagers to participate in land-use decisions and in the management of community forest areas and that will restrict the use of forest reserves for private plantations. However, the environmentally friendly legislation, as finally promulgated, may not always totally meet the requirements of the NGOs and VOs.(4)
* B.A., M.A., J.D. (Law) Yale University, Emeritus Professor, Faculty of Law, Faculty of Political Science, Chulalongkorn University and Buddhist University, Mahachulalongkorn
(1) Some Thai scholars have questioned the assumption that the Northeastern rural populace has traditionally had a bias against confrontation with government officialdom and with authority figures. They point to the long history of overt Isaan challenges to central authority beginning as far back as 1692 with the first of several rebellions over the next two and a half centuries, led by messianic holy men referred to as phou mee bun. There have been other charismatic Northeastern leaders who have proudly worn the mantle of confrontation with the political powers that be, e.g., a series of vocal opposition Isaan MPs from the early 1930s to the mid-fifties. One should also not forget that the Communist Party of Thailand was established in Sakon Nakhon province in the Northeast in 1965, and communist cadres in several Northeastern provinces led the insurgency movement against State authority for the next decade. The present-day activists confronting officialdom, whether "development monks," local NGO leaders, or the Assembly of Small-Scale Farmers leadership may be seen as logical extensions of this historical predilection for confrontational ethos. However, it should be noted that this historical line of rebellious confrontation is defined by charismatic leaders in localized challenges to the authorities. For the most part, the general populace maintained its aversion to overt confrontational tactics in their personal relations and especially where outside authority was concerned.
(2) One of the most sustained rural protest movements in recent history involved the construction of a hydro-electric dam at the site of the Pak Mool river in the Northeastern province of Ubon. Starting in 1991 and continuing until its completion in 1994, there were more than twenty separate demonstrations in both Ubon and Bangkok against the dam's construction. Since its completion there have continued to he series of protests demanding fair compensation for financial losses incurred by the villagers concerned.
(3) According to statistics released by the Ministry of Interior, there were 713 rallies and demonstrations organized by NGOs and VOs in 1994; of these 204 were in the Northeast, 161 in the North, 151 in the South; 115 in and around Bangkok and 82 in Central Thailand. In 1995, 694 protests were reported, and an even higher figure is predicted for 1996.
(4) A rather striking example of this is the disagreement among environmentalists themselves concerning a proposed Community Forestry Bill. There are both defenders and detractors of the proposed law as the rights of villagers to manage their forest resources are posed against the need to preserve pristine forests to serve as vibrant watersheds and a habitat for biodiversity. Compromise would appear to be possible by designating different classes of community forests and allowing or restricting activities accordingly. At present, however, the two camps remain divided.