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LAW AND SOCIETY
By William J. Klausner
Only recently has the government articulated a clear-cut policy to deal with this illegal labor.(24) Previously it vacillated, sometimes winking and catering to the interests of its business constituency and other times carrying out arrests pressured by the concerns of the National Security Agency and the Ministry of Interior. Enforcement of the immigration laws has been sporadic and selective. As in other areas, such discrepancy between law and behavior, accompanied by selective enforcement, has led to rampant corruption.
The problem of this illegal labor would become even more pronounced if such a labor force shifted from temporary to more permanent residence or if there were a marked downturn in the economy. In either case, tension and conflict could then be expected to escalate. Prevention is better than cure, and it is imperative that a legal framework be created to monitor, control and regularize this out-of-country labor force. The above noted laws and regulations recently announced will have to be fully enforced on a consistent basis without favor or prejudice. If this is done, the Thai economy would benefit; corruption would be sharply reduced, if not eliminated; the concerned Thai communities would be less prone to destablizing conflict; and the migrant laborers themselves would regain their dignity, and their personal safety and well-being would be issured.
In the field of technology, whether involving spectacular advances in reproductive, biodiversity, genetic engineering, information technology, life-saving equipment and techniques, etc., the law has, more often than not, been a mesmerized by-stander. Existing legislation is simply not applicable. Thus, the law, in the public's preception, is found wanting and is flaunted, disregarded or manipulated. Without a proper encompassing legal framwork to control and regulate this fast changing technological environment, people, communities and nations will be taken advantage of and the chasm between the rich and poor, advantaged and disadvantaged, exploiters and exploited will grow space. The inevitable result will be social and political tension, instability and disorder.
Thus, in the interests of political stability and civic order, it is desirable that law and customary behavior based on changing values, beliefs, attitudes, expectations and perceptions, whether social, political, judicial, economic or technological, be in conformity. If not, in addition to continued pressure for legal reform, there will he selective enforcement, corruption and a growing lack of respect for the law. As noted above, sometimes such correspondence can be most productively brought about by changing the law. On the other side of the coin, law and custom can obviously be synchronized and brought into congruence if the customary behavior is changed through education or strict enforcement of existing laws, to conform to existing statues. The process of educating the public to the necessity to abide by the laws as promulgated by the State is often a long and laborious one. First, the public must be informed of the details of the law in question. Then, it must be convinced of the rationale underlying the law. In some instances the citizenry must be further made to appreciate that one's personal interest, as well as that of the public, will be served by following legal requirements as specifled in the codes, statutes and decrees. In the latter case, for example, it is of utmost value in terms of guarding one's rights, whether one be a villager or a city dweller, to properly register births, marriages and deaths; to obtain an I.D. card, execute wills, register land holdings, and negotiate legal contracts, etc. In the rural areas such procedures would, in most cases, be contrary to traditional practice. Similarly, the public must be sensitized to the socioeconomic justification, the ecological, health and public security rationales, and the scientific reasoning underlying such laws as those limiting the cutting of timber, production of moonshine, slaughtering of cattle, gambling, production of home-made weapons, etc. The same educational process would apply to the urban population in connection with laws relating to traffic, pollution and the environment.
It is only in the last decade and a half that serious efforts have been undertaken to educate the public to its legal right as well as responsibilities. One is perhaps more familiar with the well publicized, and often controversial, efforts of student groups to educate the public, particularly in the rural areas, to their rights in a democratic society. The emphasis in that instance was more on legal means to alleviate discrimination and exploitation. Less publicized have been the initiatives of the Faculties of Law at both Chulalongkorn and Thammasat Universities to send teams of professors and students to the rural areas to disseminate knowledge of laws relevant to the daily concerns of the villagers and to educate them to their legal rights and obligations. Educational materials in simple "law for the laymen" language have been produced. The Women Lawyers Association of Thailand has also carried out orientation programs in the rural areas directed at informing the villagers of laws which affect and impact on their daily lives. The Lawyers Association of Thailand has undertaken similar education and information programs. A variety of private and voluntary pressure and interest groups have engaged in public education campaigns to encourage Thai citizens to become law abiding. The educational role of the Thai Sangha, in both rural and urban society, cannot be discounted in this context. In the late seventies, the Ministry of Interior undertook an educational campaign in the rural areas concerntrating on providing the villagers with sufficient legal knowledge to cope more successfully with the fast-changing environment in which they lived and worked. A decade ago the responsibility for this program was shifted out of the Ministry of Interior and presently resides in the Office of the Attorney General. Thus, there is now a continuing effort on the part of both the private sector and the government to create better understanding among the public of the necessity to fulfill legal requirements on the one hand, and to avoid legal prohibitions on the other. Not surprisingly the bureaucratic efforts in this area have been focused more on legal responsibilities than legal rights. In this process, progress, however slow, is being rnade to change and modify customary behavior so it will more closely conform to the "laws of the land." Progress is, of course, also dependent on the good faith of the bureaucracy in the fair and just interpretation and execution of the law.
While the legal principle "Ignorantia legis neminem excusat" (Ignorance of the law excuses no one) is accepted, it has been finally recognized that it is both unrealistic, as well as unjust, to expect the public, and especially the rural population, to be au courant of the myriad laws affecting their lives and the rationale underlying these laws. The State, as well as the socially and politically conscious private sector and unversity community, have an obligation to inform and educate the public in this crucial area of legal rights and responsibilities.(25)
The judiciary itself, while understandably committed to adjudicating issues on the basis of legal principles and existing law, nevertheless may well take into consideration, as far as sentencing and punishment is concerned, the level of education of the accused and the environment in which he or she lives. For example, the illegal production of a home-made shotgun and the cutting of timber might result in a relatively light penalty, including a suspended sentence, for a villager in a remote region of the Northeast, given the security problems, severe economic pressures and poor educational opportunities. The same offenses committed by villagers or city dwellers in the more affluent Southern and Central areas, with better education and public safety facilities, might be punished more severely. Thus, leniency is consciously applied so as to encourage future obedience to the law. The villager's resentment is mollified and he will, hopefully, be increasingly prepared to accept the necessity to abide by legal restrictions of which he is now more aware and has a better understanding.
Lack of respect for the law may also be a function of the discrepancy not between law and custom but rather between the law as written by the legislature and the law as actually implemented by the bureaucracy. The Thai public has become understandably frustrated when administrators establish rules and regulations which clearly exceed the authority vested in them by the law. This occurs most frequently in regard to legislation dealing with taxation and property. The crisis in confidence in the law is further complicated by the bureaucracy's unwillingness to accept Supreme Court rulings as binding in similar cases where their alleged abuse of authority has also been challenged. Thus each and every claimant must bring independent suits to achieve redress no matter how similar the facts may be to cases already adjudicated at the highest judicial level. As the backlog of cases often results in a delay of several years before final judgment is rendered. It is understandable that those who feel wronged are reluctant to go to court, given the time factor and financial costs involved. An attempt to accelerate the judicial process through the establishment of special courts--which provide for direct appeal, limited to issues of law, to the Supreme Court, thus eliminating the intermediate Appeals Court step--has achieved some modest success, e.g., with the labor and tax courts. The recent establishment of an Intellectual Property and an International Trade Court is expected to have similar positive results.
(24) On 25 June 1996 the Government announced a Cabinet decision to officially recognize an estimated 700,000 to one million illegal immigrant workers in forty-three provinces. The rationale given was the necessity to ease the country's labor shortage in the farming, fishing, construction, mining, transportation and industrial sectors. Those illegal laborers presently working in Thailand will be registered and allowed to take up employment for a period up to two years after which they would he deported. Government authorities have said a law will soon be promulgated which will provide employment protection to the illegal immigrant workers registered under this policy. Thai labor groups have protested against the government's policy, particularly as it applies to the transport and industrial sectors. On 6 August the Cabinet amended its earlier resolution in response to these protests. It withdrew over twenty job categories which require ,some professional skills. The new categories approved now consist of manual labor in agriculture, fisheries, construction, mining, domestic chores, marine transportation and light industry. Some academics have questioned the acceptance of a labor shortage simply because Thai laborers do not want to work in these fields. These analysts counter that if wages were raised and safer working conditions mandated and enforced, Thai workers would be prepared to seek employment in these sectors. Provincial business interests prefer such an immigrant, low-wage, unprotected workforce to maintain their competitiveness and high profit margins. As of the 29 November 1996 deadline for the registration of illegal immigrant workers, only some 200,000 of the estimated total of such workers had been registered. There is now some pressure to extend the deadline.
(25) Whether intentional or not, governmental authorities often are remiss in not informing villagers of their legal rights in specific instances where such neglect adversely affects the interests of the individual vis-a-vis the state. A rather striking example of such failure occurred when, two years ago, the government declared a part of a village in Khon Kaen province to be a national reserve. The villagers who had titled the land for generations were not informed of such designation. Now this year the governinent has taken over this land to establish a state forestry project. When the villagers protested, the authorities maintained the villagers had forfeited their rights to the land. According to the law, villagers who occupy such land before it is designated a national reserve can only continue to exploit it if they inform the authorities of their occupancy within ninety days. Failure to do so deprives them of their rights. The let that they were not informed had no legal hearing.