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|PHLIP VON MEHREN, J.D.||
TIM SAWERS, J.D.
HODGSON, RUSS, ANDREWS, WOODS & GOODYEAR
3. Epilog: current law
Many other laws and regulations followed the establishment of the Western system in Thailand. For instance, in 1904 Phraratchabanyat awk tra jawng chuakhraw (Royal decree on the issuance of temporary title deeds) made provisions for government officials to issue temporary title deeds (tra jawng chuakhraw) in areas where permanent title deeds had not yet been issued. The new laws and regulations which followed the establishment of the Western system of title were compiled in Phraratchabanyat kan awk chanot thi din R.S. 127 (Royal decree on the issuance of title deed to land of 1906). This Land Act of 1906 was Thailand's first modern land code. It made provisions for procedures in litigation of cases concerning land, set down how the cadastral survey was to procede, established procedures for the transfer of land which had already been surveyed but for which title deeds had not yet been issued, explained how to correct a mistake on the Torrens registration, etc.
Because not only the land title system but the entire judicial system and indeed virtually the whole government were changed by King Chulalongkorn, it was necessary to make many modifications to the Land Act of 1906. Phraratchabanyat awk chanot thi din chabap thi 2 (Royal decree on the issuance of title deed to land #2) mandated registration of the new owner upon the death of a landowner and provided for escheat of land with a title deed which was left unoccupied and unused for nine years. Phraratchabanyat awk chanot thi din chabap thi 3 (Royal decree on the issuance of title deed to land #3) gave Ministry of Agriculture officials the power to issue replacement ownership documents to tax officials who wanted to seize and sell the land for back taxes. It also made provisions for release of a mortgage when there were multiple mortgagors or mortgagees and designated a method for entering the name of the executor of a will on the title deed while the executor was administering the estate.
As might be expected in an agricultural society with a traditional system of de facto ownership rights in the possessor, the new title deed system's protection of ownership rights rather than occupancy gave rise to much confusion. Phraratchabanyat awk chanot thi din chabap thi 6 (Royal decree on the issuance of title deed to land #6) represented both a culmination of the bureaucracy's adjustment to the new system and an attempt to alleviate the confusion that new system had caused. With this 1936 decree a more flexible system began to emerge. Its provisions recognized three different stages in the acquisition of land: occupancy, utilization and legal possession. This basic scheme is still in use today.
Where the Land Act of 1906 (part 4, chapter 11) had provisions for acquiring full legal rights over any amount of vacant land of which one could make beneficial use, the 1936 decree (section 5) reduced the amount one could claim to 50 or 100 rai(53) (depending upon what government official gave his approval). The 1936 law also required more extensive participation by government officials in the squatting procedure. This is the first legal limitation of the Thai peasants' ancient squatting right.
With the Pramuan kotmai thi din 2497 (Land Code of 1954) the Thai government for the first time moved to limit the amount of land an individual could hold. Section 34 of that act allowed an individual to hold a maximum of 50 rai for agricultural purposes. More severe limits were established for industrial, commercial and residential holdings. This section of the 1954 Act was summarily eliminated by Field Marshall Sarit after his 1957-8 revolution.(54)
As a result of the Land Code of 1954, which (with Book IV [Property] of the Thai Civil and Commercial Code) regulates land ownership today, there are now five documents concerning occupation and ownership of land. The claim cerificate or so ko 1 merely represents the government's acknowledgement of occupancy of the land. The supreme court of Thailand ruled in 1966 that the claim certificate shows not ownership, but that the holder claims ownership (Dika 676\2509). Every farming family must have the claim certificate for tax purposes. Farmers who live within forest preserves get an analogous document, the so ko to or SKT.(55)
Articles 30 and 33 of the Land Code of 1954 perpetuate the earlier statutory provisions for taking up vacant land. A farmer must ask the appropriate government office to inspect and conduct a survey of the land and to post public notice. After 30 days, if no one objects, the farmer will receive a bai jong or preemption certificate granting permission to occupy and cultivate the land. If the farmer starts clearing the land within six months and can show, after three years, that he is making beneficial use of the land, the district office will issue a no so 3 or, since 1972, no so 3 ko (certificate of use).
The certificate of use is the first step on the path to full legal ownership of the land. The final two documents in use today are the bai tai suan, issued by the Land Department and the chanot thi din (land title deed), which is issued by the Land Department and the provincial governor. The bai tai suan is documentary proof of inspection and survey of the land and the chanot thi din (form no so 4) represents, of course, full legal title. But even land held under full title is subject to prescription under articles 77 and 78 of the Land Code of 1954 and clause 1382 of the Thai Civil and Commercial Code if abandoned for ten years.(56)
We should note that despite these provisions for acquisition of vacant land, the main thrust of the Land Code of 1954 was to achieve increased governmental control over the land rather than to rectify any social problem. Verachai Tantikul, for instance, has said that the Land Act was promulgated because of concern for tax revenues.(57)
The land Code of 1954 represents the consummation of the Westernization of Thai land law, the completion of the move to a "formally rational" land law. Ownership rights are separate from possession and control, land is scientifically surveyed, there is a Torrens registration system and provisions have been made for the taking up of any vacant land. But it also limits Thai farmers' ancient right to squat and requires extensive participation of government officials in the squatting process. These last two considerations probably outweigh concerns about security of tenure and help to explain why there is no popular demand for full title deeds in an area where farming is not yet commercialized. In these areas where the traditional economy reigns the "new" law must seem abstract and foreign to the farmer. The traditional land law, the product of a legal system based on what the Thais perceive as natural law, certainly appears just that to these rustic Thais: nature.(58) Thus it is no surprise that in rural areas, where life is governed by the passing of the seasons, nature and not abstract law regulates land tenure.
(53) About 2 1/2 rai equal one acre.
(54) Kham sang khana patiwat 49 (Revolutionary Council Proclamation No. 49), January 13, 1959.
(55) Feder, G. et al. (1988) Land Policies and Farm Productivity in Thailand 18.
(56) Most of the discussion of the acquistion of land under the Land Code of 1954 is taken from Yano, Toru (1968) "Land Tenure in Thailand;" Asian Survey, 8 (10): 853-863.
(57) Verachai Tantikul (1973) "Land Tenure in Thailand," School of Law, University of California, Berkely 12. Cited in Kemp, Jeremy H. (1981) "Legal and Informal Land Tenures in Thailand," Modern Asian Studies, 15 (1): 7.
(58) See O'Connor, Richard A. "Law as Indigenous Social Theory: a Siamese Thai Case;" American Ethnologist, 8 (2): 223-37. O'Connor makes an intriguing argument that traditional Thai law served as a culturally constituted mode of analysis that projected an indigenous theory of society.