South East Asia

Thailand: New constitution and indigenous peoples

Following the overthrow of the Thaksin Shinawatra government in a bloodless military coup on 19 September 2006, the 1997 Constitution was abolished by the military government and Martial Law was imposed in Thailand. The military led government also started drafting a new Constitution. On 19 August 2007, the new Constitution was adopted through a referendum in which more than 42 percent voted against the new Constitution.

There are some improvements in the 2007 Constitution in comparison to the 1997 Constitution. For example, Article 4 of 2007 Constitution guarantees protection of “human dignity, rights, liberty, and equality of the people” in accordance with the Constitution of Thailand and “international obligations, which Thailand has endorsed”. The 1997 Constitution did not recognize Thailand’s international obligations.

Under Article 79(6) and Article 65 of the new Constitution, the rights of the “traditional communities” have also been recognised. But, the new Constitution has once again failed to address the age-old problems of the indigenous peoples.

I. Non-recognition of the term “indigenous peoples”

According to 2002 survey, there are over 9,00,000 hill tribes mainly belonging to the Hmong, Karen, Lisu, Mien, Akha, Lahu, Lua, Thin, and Khamu living in 20 provinces in the Northern and Western Thailand. In addition, there are indigenous fisher communities (the Chao-lae) and a small population of hunter-gatherers in Southern Thailand who are considered as indigenous.

The 2007 Constitution in more ways than one is a mere reminiscent of the previous Constitution. It has again failed to recognize the term “indigenous peoples” and merely uses the term “traditional communities”.

II. Absolute silence on citizenship rights

The most serious problem or the root cause of all the problems of the indigenous peoples of Thailand is the the denial of citizenship right. There are an estimated 480,000 stateless indigenous persons in the country of which 120,000 have been granted permanent resident status by December 2006. Due to the lack of citizenship rights, these indigenous peoples have been considered as “illegal aliens” and subjected to arbitrary arrest, discrimination, denial of basic political rights such as the right to vote and participate in the administration, the right to land ownership, the right to freedom of movement, the right to education and the right to access welfare services such as health services, jobs, etc.

The 2007 Constitution of Thailand is absolutely silent on citizenship rights. There is no clause relating to “citizenship”. The problems of citizenship of the indigenous peoples have therefore not been addressed.

Article 6 of the 2007 Constitu-tion provides - “The Constitution is the supreme law of the state. The provisions of any law, rule or regulations, which are contradictory to or inconsistent with this Constitution, shall not be enforced”. Section 7 of the Citizenship Act of Thailand of 1965, as amended in 1992, provides that “people born in the Kingdom of Thailand of parents who are aliens in the Kingdom will not receive citizenship and are living in the Kingdom without the legal authority to do so”. There is no doubt that  Section 7 of the Citizenship Act is discriminatory. However,  since there is no clause relating to “citizenship” in the 2007 Constitution, the discriminatory Citizenship Act of Thailand of 1965 is unlikley to be considered as “contradictory to or inconsistent with” the 2007 Constitution. Therefore,  the Citizenship Act of Thailand of 1965 will prevail and indigenous peoples will continue to be denied citizenship.

On 18 January 2005, a Cabinet Resolution was adopted to speed up the processing of the citizenship applications of the hill tribes. The process has been absolutely tardy, marked by corruption. The military coup of September 2006 and its subsequent political instability made things more difficult for the indigenous peoples.

The indigenous peoples will have to live as “illegal aliens” in their own country due to the discriminatory policies of the government and the failure of the 2007 Constitution.

III. No redress on restrictions on the freedom of movement

The 2007 Constitution of Thailand allows the restrictions on the freedom of movement. Article 34 provides that “A person shall enjoy the liberty of traveling and the liberty of making the choice of his or her residence within the Kingdom” but the government can impose restrictions “by virtue of the law specifically enacted for maintaining the security of the state, public order, public welfare, town and country planning, or welfare of the youth.” Phrases like “security of the state, public order, public welfare, town and country planning, or welfare of the youth” have been consistently used in the past to deny freedom of movement to the indigenous peoples.

Indigenous peoples face unique restrictions on the freedom of movement because of the lack of citizensip. They are required to take prior permission from the concerned authorities if they wanted to go to another province. They are issued different colours of identity cards - blue, green with red border, pink etc. Each colour indicates the kind of permission the indigenous peoples have to take from District Chief to Provincial Governor to travel out of the sub-district or province. They face penalty and imprisonment for the failure to take permission. While some of these restrictions have been relaxed in practice, the authorities can invoke the draconian provisions according to their wishes.

 The 2007 Constitution has failed to address such institutionalised discrimination against the indigenous peoples with regard to freedom of movement. Rather, the Constitution has sanctified the discriminatory law being in force in the name of “national security” etc.

IV. Lack of specific protection to indigenous peoples’ land rights

The 2007 Constitution does not provide any specific mechanism for the protection of the land rights of the indigenous peoples. Article 33 provides for “liberty of dwelling” while Articles 41 and 42 protect the property rights of the citizens. At the same time, Article 42 also states that “The expropriation of immovable property shall not be made except by virtue of the law specifically enacted for the purpose of public utilities, necessary national defense, exploitation of national resources, town and country planning, promotion and preservation of quality of the environment, agricultural or industrial development, land reforms, or other public interests, and fair compensation shall be paid in due time to the owner thereof as well as to all persons having the rights thereof, who suffer loss by such expropriation, as provided by law.” It is therefore clear that indigenous peoples can be evicted in the name of “public interests”, “industrial development” etc.

The positive provisions under Article 56 are also complimented by Article 66 which provides that the State shall protect “the right of a person to give to the State and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of environment”.

Article 66 further prohibits implementation of “any project or activity which may seriously affect the quality of environment” and proper studies must be done in order to evaluate the impact of the project or activity on the quality of environment prior to its operationalisation. A community shall have the right to “sue a state agency, state enterprise, local government organization or other state authority” if they violate the provisions of this Article but nowhere it has been specifically guaranteed that the views of the affected persons will be binding on the State or implementing agencies.

Further, Artcle 84 allows the participation of the affected people in the “decision making process” in preservation, maintenance, and exploitation of natural resources and biological diversity by the state.

These are all general provisions meant for all citizens. The Constitution lays down no specific safeguards for the protection of the land and other property rights of the indigenous peoples who are the disproportionate victims of land alienation and forcible evictions.

Presently, an estimated 80,000 indigenous peoples including from Karen, Shan, Yintalai and Karenni communities have been facing impending displacement due to the proposed construction of a dam over the Salween river in Mae Hong Son province of Thailand, bordering Burma. The affected indigenous communities have not been allowed participation in the dam project nor has their “free and prior consent” been sought by the authorities.

V. No specific safeguards of cultural rights

Article 65 of the 2007 Constitution states that a “traditional community” shall have the right “to conserve or restore their customs, local knowledge, arts or good culture of their community and of the nation and participate in management, maintenance, preservation and exploitation of natural resources and environment in a balanced and sustainable manner and persistently.” These guarantees were also provided under Article 46 of the 1997 Constitution. Nonetheless Article 79(6) of the new Constitution which enstrusts the responsibility to the State to “preserve, revive, and protect arts, culture, and national traditions, good values, and folk wisdom and promote awareness thereof” appears to be an improvement of Article 289 of the 1997 Constitution which entrusted the responsibility to local government.

VI. Lack of affirmative action progranmmes for indigenous peoples

Affirmative action or positive discrimination is a major tool for protection of the rights of the disadvantaged groups including the indigenous peoples and for their development in all sectors. Many democratic countries have adopted similar programmes.

Article 30 of the 2007 Constitution provides for equality of all and prohibits “unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education, or constitutional political views”. It also encourages the State to adopt measures to “eliminate obstacles to or promote persons’ ability to exercise their rights and liberties like other persons” which “shall not be deemed as unjust discrimination”. While this is a general provision applicable to all the citizens irrespective of their socio-economic conditions, the Constitution failed to provide any specific affirmative action programme for the “traditional communities”. Nonetheless, Article 30 of the new Constitution provides the scope to the Thai government to undertake affirmative action programmes in the areas such as education, health care, employment and promotion if it wants to bring the traditional communities at par with the mainstream Thais.

VII. Supremacy of international law not upheld