|Human Rights and Personal Legal Status of People at Risk of Persecution in Thailand|
BY Pongtheb Yangsomcheep
For chula forum on international migration on 26 june 2002
Thailand is not a party to either of the international refugee instruments, namely 1951 Convention on Refugee and its Protocol, and has not, with the sole exception of the Comprehensive Plan of Action for Indochinese Refugees (CPA) of March 1989, enacted any refugee-specific legislation/engagement. Since the termination of CPA screening in 1994, there exist no national procedures for the determination of refugee claims. Nevertheless, in keeping with the generous tradition of decades, temporary asylum continued to be provided to people at risk of persecution from Burma in 10 temporary shelters along the Thai-Burma border.
People at risk of persecution, having arrived/resided in Thailand without the required documentation, thus considered illegal migrants by the Thai authorities and if caught, were subjected to arrest, prosecution, detention and deportation. The same applied to camp residents caught venturing outside their designated camps. Some incidents were reported at the Thai-Burma border, where access to Thailand was denied to new arrivals, or where groups of asylum seekers were denied admission to camps and subsequently deported. Thus, the international principle of non-refoulement is not respected by Thailand in general, though not in every incident.
Although Thailand publicised that there is no refugees in the country, Thailand, in reality, has been hosting to over 110,000 people at risk of persecution from Burma, primarily belonging to the Karen and Karenni ethnic minorities, in 10 temporary shelters along Thai-Burma border. Most had fled because of fighting between the Burmese Army (SPDC) and opposing armed groups defending their cause. Due to the twist in the terminology that Thailand called these refugees i.e. people fleeing from fighting, displaced persons from Burma or illegal immigrants from Burma. These terminologies themselves construe the varieties of practices and policies on the status of these people. By declaring that these people are people fleeing from fighting, the definition has limited the admission of the asylum-seekers to only a group of people who fled from fighting and enter into Thailand. Moreover, the policy is made clear that the obligation of Thailand towards these people are only limited to the fact that these people entered Thailand illegally and the practice is in place that these people are only allowed to stay in Thailand temporarily awaiting deportation due to “humanitarian reason”. There is no clear legislation on how to treat these people while they are staying in Thailand, which resulted in confusions and complexities for both local authorities and humanitarian workers. Under the name of “national security” in limiting the admission criteria, legal status and the treatment of people at risk of persecution, it is awaited to be probed into whether or not these policies and practices deprive the human rights of people at risk of persecution fundamentally. By lacking legal status in Thailand, people at risk of persecution are considered both by law and the authorities as being illegal immigrants, which demonstrated in their policies and practices i.e. people at risk of persecution do not have the right to equality before the law and the right to the protection of the law .
The above-mentioned description of the conditions of people at risk of persecution in Thailand have led to the need to research on the possibility of personal legal status with legal rights and duties in providing effective protection of human rights of people at risk of persecution from Burma in Thailand ranging from the admission criteria, the protection of human rights of people at risk of persecution in Thailand and the durable solutions for them.
In addressing the fundamental rights of people at risk of persecution, the philosophical concept in having a right should be prior rationalised. A philosophical debate on the origin and the enjoyment of human rights is an ongoing process but it would provide a profound fundamental for the study related to human rights. In principle, there are two schools of thoughts on human rights, inter alias, School of Natural Law and School of Positive Law. It is of interesting nature to discuss whether human rights are of legal or moral character or whether they belong to natural law or positive law.
In the School of Natural Law by the positions of philosophers such as Hobbes and Locke; Carlos S. Nino , argues that human rights has radical importance in evaluating laws, institutions, measures, or actions, these rights are not identified with norms of positive law, indeed such legal rights are created as a result of the recognition of rights which are logically independent of legal system. This means that the respect for human rights is demanded even when a person faced with legal system precisely does not recognize them. For example, the fact that Burmese government by its legal system did not permit political associations to oppose against its regime did not constitute a valid defence against the charge that the right to express political opinion and the right to self-determination are considered to be the acts of evil by Burmese government. To say that the Burmese legal system did not recognize such rights would confirm the complaint that the fundamental and natural rights of Burmese are violated by the law stipulated by Burmese government without the compliance to the Natural Law. Carlos further explains that it is the intrinsic justification, which validated human rights and it does not base on the enactment or recognition by certain individuals and stipulated as law. He even put forward a remark on the positive legal system, which does not recognize human rights, is not a law but a coercive apparatus.
This proposition is very well explained by Hegel in which his remark is on the fact that there are two kinds of laws, namely, laws of nature and laws or rights. The laws of nature exist in the nature and valid as they are. While the laws of right are established and handed down by men, therefore, they are not absolute. But, in the laws of right, it enables its citizens to more or less have a firm hold of them as they are given to them and the jurist also abides by the same standpoint. Notwithstanding the convenience of laws of right, human beings are still capable of making logical investigation to be directed to the laws of nature in contrast with the external authority and necessity forced on them. Therefore, in the laws of nature, one could say that all human rights can be legal rights, while not all legal rights can be human rights. Legal rights is a subset of Human Rights and its validity depends on their conformity with human rights in the laws of nature.
In the School of Positive Law by the positions of philosophers such as Bentham, Austin, Kelsen, Ross, Hart, Carrio, etc. , they argue that the effective enforcement of human rights, which is by law, is in fact the real human rights. Joel Feinberg describes that right enables the holder of the right to make a claim to something against someone. Feinberg elaborates right in comprising of four elements: (1) a content—which is, some good that is the object of a claim; (2) a holder—which is, someone toward whom one’s claim to the good is right; (3) an addressee—which is, someone toward whom one’s claim to the good is addressed or directed; and (4) a source of validation—which is, something to which one can appeal to justify one’s claim as valid. To illustrate Feinberg, “people at risk of persecution” (a holder of the right) “claims to have the right to life” (a content) from “the country of asylum” (an addressee) “based on the ground that people at risk of persecution experiences persecution and having their rights violated by their country of origin in which they could not find any source of protection of their right to life so they needed to seek asylum in another country” (a source of validation). However, there are problems concerning the facts that to whom people at risk of persecution should address to and what source to validate people at risk of persecution’s claim. In most of the cases, the host country and/or international community would be liable as the addressee(s) of the right of people at risk of persecution. The problem remains on how to validate such a right as many countries deny the responsibility towards people at risk of persecution. Feinberg explains the situation where a right lacks of the addressee and a source of validation as a “manifesto right”, which is not justified under a system of governing rules.
Rex Martin elaborates further on a manifesto right that human right is defective, not as a claim but as a right, in the absence of appropriate practices of recognition and maintenance. Martin mentions that the appropriate form of social recognition by the addressees, which are the governments, is necessitated under civil laws. Therefore, in the countries where people at risk of persecution’s right is not stipulated in civil law as a positive right. The appropriate procedures for the protection and recognition of people at risk of persecution’s right are not instituted. As a result, the claim for people at risk of persecution’s right, which lacks such recognition under civil laws, may even be a morally valid one, but it cannot qualify as a right. As Wesley Hohfeld , mentions that a claim correlates with a legal duty of some second party. Therefore, there must be a nature where the government or the State has a legal duty towards people at risk of persecution in order to qualify their rights.
As Nation-states emerged, the truth about the necessity of legal status is getting clearer. Guy S. Goodwin-Gill views that local legislation and other specific measures are increasingly required for effective implementation of the protection of people at risk of persecution’s right. Thus, lawmakers have a major role to play, both in ensuring the conformity of national policy and practice with international law, where people at risk of persecution’s right is internationally recognised, but also in contributing to the consolidation and development of those norms which are essential to the resolution of people at risk of persecution problems. Goodwin-Gill reiterates that national law has a vital role to play as an instrument of social policy in finding the meaning of internationally accepted people at risk of persecution’s right in domestic legislation and declaring the national intention to provide asylum to those who satisfy legal requirements.
Considering the legal atmosphere of people at risk of persecution in Thailand, Phunthip K. Saisoonthorn explains the entry into Thailand of people at risk of persecution according to Immigration Act of Thailand, 1979 as illegal entry. By entering Thailand illegally, people at risk of persecution will be categorised as illegal immigrant and being subjected to arrest, conviction and deportation. On the case by case basis, Thai Cabinet and Ministry of Interior, Thailand, authorised temporary resident permit to people at risk of persecution and limited the residential area while they are waiting for deportation. Even if people at risk of persecution is granted an authorisation for temporary residence in Thailand, people at risk of persecution is still possessing an illegal immigrant status according to Immigration Act.
Given that people at risk of persecution is admitted to Thailand as an illegal immigrant awaiting deportation based on humanitarian ground or the principle of mercy in Buddhism, people at risk of persecution may be entitled to enjoy certain rights to basic needs e.g. food, shelter, medicine and clothes. It is arguable that the people at risk of persecution in Thailand with their illegal status may claim that they also possess “right” and it could probably be valued that it is a morally valid claim of right. However, it is like having a cheque without the signature and trying to cash it at the bank as there is no legality to enforce the claim of “right”. By relying on the benevolence of the State and the authorities, the life and well-being of people at risk of persecution are left in limbo.
To be a refugee in the international standard, 1951 Convention on Refugees stipulates that a person will become a refugee when s/he is outside the country of her/his country of habitual residence owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and unwilling or unable to return to it . The range of relevant international refugee law is divided among six basic principles: the principle of asylum; the principle of non-refoulement; the principle of protection; the principle of non-discrimination; the principle of international co-operation; and the principle of solution.
Article 14 of the 1948 Universal Declaration of Human Rights declares that “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This means, according to the international law, refugees have the right seek asylum and enjoy protection in other countries when s/he has fled from persecution. This right is in compliance with the right to non-refoulement under the Article 33 of 1951 Convention on Refugee as it provides that “No contracting state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” In addition, fundamental human rights in the international law have guaranteed the right of everyone to the class of non-derogable rights which include the right to freedom from slavery or racial discrimination or other discrimination in any form based on the reasons of gender, nationality, age, political opinion and social groups; the right to life; the prohibition of torture or inhuman treatment; the right to recognition as a person before the law; the right to freedom of conscience, thought and religion; the right to liberty and security of the person including freedom from arbitrary arrest and detention; and the right to freedom from arbitrary interference in private, at home and family life. Refugees should conform to the laws of their country of asylum including the camp rules where they are residing.
Tapan K. Bose stressed on the need for legal framework for the protection of refugees in South Asia that the absence of laws concerning treatment of asylum seekers/refugees, the response to refugee influxes would result in the lack of legal protection against summary expulsions because they are treated as illegal immigrants and not as refugees fleeing persecution. Concerning the treatment of refugees where there is no legal framework to grant legal status to the refugees, the response of the State would be clandestinely differentiated by the policies and there would be inconsistencies in admission, grant of asylum, education , employment, rehabilitation and repatriation. This would result in having each influx of refugees received a different package depending upon the political motivation and ethnic and religious linkages.
The number of people at risk of persecution at the border camps comprised of some 111,000 staying in 10 camps at the Thai-Burma border, primarily belonging to the Karen and Karenni ethnic minorities. Most had fled because of fighting between the Burmese Army (SPDC) and opposing armed groups defending their cause. Every month new asylum seekers were reported to have arrived at the border; claiming to be fleeing fighting and violence by the SPDC soldiers, and to have suffered human rights violations such as forced relocation, assaults, tortures, forced labour, compulsory porterage, excessive forced taxation, rapes and killing.
Notwithstanding the fact that Thailand is not a party to either of the international refugee instruments, namely 1951 Convention on Refugee and its Protocol, and has not, with the sole exception of the Comprehensive Plan of Action for Indochinese Refugees (CPA) of March 1989, enacted any refugee-specific legislation/ engagement, the Thai authorities have officially declared their readiness to offer temporary shelter to persons fleeing military conflict or political instability from neighbouring countries. Such individuals are generally referred to as “displaced persons fleeing fighting” rather than refugees, and their temporary stay is emphasised by the Royal Thai Government (RTG) as “temporary shelters”. Temporary asylum continued to be provided to people at risk of persecution from Burma in 10 temporary shelters along the Thai-Burma border.
The admission criteria and procedures of Burmese nationals to the border camps or “temporary shelters” at the border are outlined in a “non-paper” covering the working arrangements for UNHCR’s role at the Thai-Burma border. These were agreed upon in a joint brainstorming session between UNHCR and RTG in May 1998. According to the working arrangements, no Refugee Status Determination shall take place, and UNHCR will act as an observer to RTG’s assessment of the situation whether to grant temporary shelter on the ground of fleeing fighting and effects of civil war. However, in the year 2000, Thai authorities made it explicitly clear that in their understanding the agreed text only covers “fleeing from fighting” and not the effects of civil war. Furthermore, according to the instructions reportedly given to the Provincial Admission Boards (PABs), the interpretation of “fleeing from fighting” is to be restricted to the situation in which :
•There is actual fighting between two parties in battle, and civilians are caught in between (for instance, a common situation in which the population of a village is evicted and the village demolished in preparation of a battle by a party does not fall under criteria)
•The fighting has to take place in the vicinity of Thai border (50 km has been cited as a maximum distance)
•The fighting having taken place has to be independently verified by the Royal Thai Army (RTA)
•The victims have to flee to Thailand directly and submit themselves to RTA immediately (for instance, the victims have to flee in group and arrive to Thailand in a specific timeframe given by Thai authorities, which means that those individuals who arrive separately after the time-frame would not be considered as fleeing from fighting given that particular fighting incident).
The criteria do not cover religious, political or other persecution. Thus, persons whose villages have been attacked or who have suffered torture for religious or political reasons, are not covered by the criteria.
The procedures of admission have suffered from a lack of formal instruction or regulations from central Thai authorities to the local level, and they have thus been developed in a somewhat ad hoc manner in different locations. Although instructions were apparently sent out to the effect that PABs were to be established to consider the claims of new arrivals, these instructions have been interpreted differently in different areas. As a result, each of the four border provinces, namely Mae Hong Son, Tak, Kanchanaburi and Ratchaburi provinces, and each camp administration have somewhat different approaches to the issue and are placing different levels of importance on it. However, the principle should work as follows: the new arrival groups report themselves to the RTG, who places them in specific reception areas for the period of the admission process. The local authorities interview new arrivals (with UNHCR acting as an observer) and after the interview, recommendations are made on each case/group. These recommendations are forwarded to the PAB for the decisions. In case of positive decisions, the persons concerned would be shifted to the camps and officially registered as camp residents by Ministry of Interior (MOI)/UNHCR. If the decision is negative, they are subject to deportation to Burma.
During the years, UNHCR has worked with the Thai authorities to establish people at risk of persecution admissions procedures and how elements of such procedures have been put in place. Provincial admissions Boards have been established and reception centers built in many camps. In theory, new people at risk of persecution stay in the reception centers where they are interviewed by Thai officials and then await the decisions of the admission boards. In practice, however, things are not working this smoothly. The use of reception centers is inconsistent and the interviewing of new arrivals sporadic. The admission boards have then been making some puzzling decisions with seemingly similar groups being accepted and rejected. In general it seems that most, but not all, groups who arrive as the direct result of fighting or other security incidents are admitted, whilst most, but not all, of the constant flow of people escaping village relocations, forced labour and other serious human rights abuses are not. As a result, according to UNHCR’s statistics to 30 September 2001, out of 28,441 persons seeking admission since May 1999, only 11,704 had actually completed the procedure and been admitted, whilst 6,392 were still awaiting submission to the boards. 4,867 had been rejected for whom UNHCR had lodged appeals. 5,211 had been rejected on appeals and waiting for deportation. 267, all of whom UNHCR considered to be refugees, had been rejected and deported.
On 12 June 2000, the Thai authorities entered Ban Don Yang camp to round up the 115 rejected cases residing there. Anticipating this move, many of them had left the camp and only 46 were present. The authorities though were able to find another 70 recent arrivals who had not been presented to the admission board and all 116 were sent to the border near the Mon resettlement camp at Halockanee.
The slow progress of the admission boards and the high rejection rate is causing considerable tension within people at risk of persecution population. In some cases, it seems that new arrivals are not daring to present themselves for fear of being rejected and deported. Given the continuing influx of new arrivals, there is a pressing need for this process to be regularised.
In Kanchanaburi/Ratchaburi provinces, the criteria for admission continued to be applied in a very restrictive manner, both by military and civilian authorities alike. New arrivals fleeing the effects of civil war were simply not considered. As regards “fleeing from fighting”, it was at times, debated whether villages being attacked by a sole party constitutes fighting or not. Asylum seekers who make their way directly to the camps, instead of reporting to RTA, were considered “illegal migrants”--although they fled fighting—as they had entered the camps illegally. Attempts to have them officially admitted in camps risked leading to their arrest and deportation (as happened in 1999 and 2000). As a result, a substantial number of refugees lived clandestinely in the camps and, lacking proper registration, their position was more precarious than that of the others.
In Kanchanaburi province, in early January 2000, the Ninth Division of RTA barred some 1,000 asylum seekers, which had fled heavy fighting between the KNLA (one of Karen armed groups) and SPDC troops, from entering further into Thai soil and turned them back. A few days later, as fighting broke out again and the information started to spread, the Ninth Division finally let them cross over into Thai territory. As the population eventually started to move towards the border, SPDC troops launched another attack and two asylum seekers were killed (among whom one 9-month pregnant woman). In early February 2000, the additional 400 refugees were admitted on Thai soil but were kept under close military control at the border. One man died of injuries, due to lack of medical care. UNHCR was denied access. Later, only 250 persons, mainly women and children, were allowed to the reception site, while men were released in small groups. One month later, some of the men were still being held by the RTA and, as at the end, there were 55 men remained unaccounted for. Several demarches were made with higher military officials by UNHCR, Thai human rights NGOs, and the diplomatic community. In response, the authorities stated that those men had chosen to go back and continue fighting. Meanwhile, some accounts from escapees stated that the detained men had been forced to work for military purposes and used as minesweepers; there were also persistent rumours of their possible execution by the RTA. Up until 2002, the men’s families in Ban Don Yang camp continued to question as to the fate of their husbands and/or sons.
Considering the standard of treatment of people at risk of persecution in Thailand, Thailand is neither a state party to the 1951 Convention on Refugees nor has any domestic legislation concerning refugees or asylum. The basic policies and practices regarding treatment of people at risk of persecution as well as the related procedures, are generally influenced by the policies of various government and officials in operation levels. The following provides additional information on the position of Thailand in specific aspects of human rights.
Non-discrimination: Chapter 1 of the 1997 Constitution stipulates in its Section 5 that “the Thai people, irrespective of their origins, sexes or religions shall enjoy equal protection” thus placing its primary focus on the protection of the individual rights of Thai nationals. This legal qualification however does not necessarily limit the ambit of the Constitution solely to Thai citizens since other Chapters of the Constitution are commonly regarded as applying to all residents in the Kingdom. Such interpretation is confirmed by the remarks made by the Thai delegation to the Committee on the Rights of the Child that whilst Chapter 3 of the Constitution referred only to the Rights and Liberties of the Thai People, it seems that other rights are universal and concern everyone residing in the Kingdom. In light of the foregoing, it should be advocated for a broad interpretation of the Constitution, since people at risk of persecution, asylum seekers and persons granted temporary protection are, in principle, not excluded from the subjective rights conferred by the Constitution. For example, where Section 4 states: “the human dignity, right and liberty of the people shall be protected”, no limitations in terms of personal jurisdiction seem to apply.
In Kanchanaburi, there has been some case of clear proof of discrimination taking place against people at risk of persecution by Thai authorities and villagers. There have been reports on the abuses of Thai authorities and villagers when they came across people at risk of persecution going outside the camp. There have been both confirmed and unconfirmed reports of people at risk of persecution being beaten by the Thai authorities during arrest and deportation. Or, people at risk of persecution, especially children, were beaten by Thai villagers. Due to lacking legal status in Thailand, people at risk of persecution tend to be silence and ignore the possibility to file a lawsuit against the abusive authorities and/or villagers.
Freedom of movement/detention: All people at risk of persecution without valid Thai visas are subject to arrest, in compliance with the relevant provisions of the Thai immigration Act. Once arrested, people at risk of persecution/asylum seeker would be prosecuted for illegal entry and sentenced to three months in jail or up to 9,000 Baht in lieu of the jail sentence. Thereafter, s/he would be detained indefinitely at Immigration Detention Center (IDC) until deported. In addition, Immigration authorities have applied a fast-track deportation practice of nationals from Cambodia, Lao and Burma. Though the persons arrested were not subject to court procedure, they were immediately transferred to IDC for short length detention and quick deportation.
Physical safety: There are no specific legislative/administrative provisions aimed at ensuring the physical safety of people at risk of persecution in Thailand. Moreover, in view of the fact that the majority of them are in Thailand illegally, they are hesitant to turn to the authorities in case of any form of physical abuse/attacks. In the worse scenario where people at risk of persecution were abused or attacked by local authorities, witness protection scheme or physical safety of people at risk of persecution who would testify against local authorities is far from reality.
Civil and Political rights: The fact that people at risk of persecution have no formal status in Thailand obviously impacts their civil and political rights. Insofar as people at risk of persecution from Burma are concerned, RTG clearly stated that they will not tolerate any anti-Rangoon activities on their soil.
In Kanchanaburi, a number of instances were brought to UNHCR’s attention, in which people at risk of persecution had been mistreated or abused and in which no action had been taken against the perpetrators. Because the incidents occurred in the vicinity of the camp and not inside, refugees were at risk—if the incidents were reported and investigated—of becoming charged with illegal entry, which would result in deportation. UNHCR intervened and raised the issues with the authorities, including mobilising Thai human right NGOs to support the victims, but with little practical results. Moreover, the authorities mentioned that the issues were out of the competence of UNHCR as people at risk of persecution are outside the camp and they have no legal status in Thailand. The authorities would use the argument that people at risk of persecution do not have legal status in Thailand in pressuring the abused to withdraw their cases.
Economic, social and cultural rights: people at risk of persecution in Thailand do not benefit from any of these rights since they have no formal status in this country. As a general rule, people at risk of persecution are not allowed to go out of camps but many of them do come and go from the camps, often in search employment in order to supplement their meagre rations in the camps. Due to the policy of RTG on keeping the camps “temporary”, the level of assistances provided to people at risk of persecution in the camps are apparently limited to only basic needs at the minimum standards. For instance, food rations are distributed in the quantity that the they can have two meals per day with only rice, soybean, salt and fish paste everyday until they repatriate, which in most of the case have lasted for several years already. Other assistances; be they education, health, shelter and clothing; are strictly kept under supervision of local authorities in order to ensure that people at risk of persecution would not have a good quality of life during their temporary stay in the camp so that they would consider repatriating to their country of origin. As such, many people at risk of persecution work illegally in Thailand, most frequently as agricultural labourers, on construction sites, in the fishing industry, as domestic help, etc. As a result, these people at risk of persecution were seriously affected by the massive crack-downs on illegal workers.
Education: people at risk of persecution wishing to study are hampered by the fact that legal status in Thailand is a pre-requisite for admission to a study programme in any education facility. Moreover, people at risk of persecution are not allowed to leave the camps for attending schools outside the camps. At the people at risk of persecution settlements at the Thai-Burma border, primary education is provided at schools run by people at risk of persecution themselves. The previous policy of MOI of only allowing primary education was recently revised, and further education programmes are now being implemented. In all camps, there is secondary schooling. However, vocational training and any training related to human rights and politics are officially forbidden in all camps.
Family reunification: While there are no specific legislative/administrative provisions in this area, this right practically applies only to whose with legal residence. Since the majority of people at risk of persecution are living illegally in Thailand even if they are admitted to stay in the camps, this right is denied to them. For instance, the wife and some children are admitted to stay in the camp and the husband and other children arrived to the camp at the later date due to the condition on the other side. The husband and other children would not be considered for family reunification and they would be subject to arrest and deportation as “illegal migrants” if they submit their cases for consideration by the authorities. This results in splitting family unit between the registered and unregistered people at risk of persecution population, which would affect on level of assistances provided only to registered people at risk of persecution and the risk that the unregistered people at risk of persecution may be rounded up and deported during random check in the camps.
Travel, identity and other personal documents: There are no formal provisions for the issuance of any documents to people at risk of persecution in Thailand. People at risk of persecution registered in border camps hold a copy of the registration form with an attached picture, which they at times construe as an identity document. They are not entitled to obtain any paper or certificate from local authorities.
Child population of people at risk of persecution: Although Thailand is a party to the Convention on the Rights of the Child, it has made reservation to Article 7 (dealing with birth registration and nationality of children, and refugee and asylum seekers’ children respectively). Concerning birth certificate, all persons born in Thailand are required to be registered at the local municipal office in the district in which the birth take place. In general, the hospital or clinic where the birth took place undertakes this exercise. As the majority of births in the people at risk of persecution communities take place in villages with the assistance, if any, of a local midwife, the onus is on the parents to undertake responsibility for the registration. Not many people at risk of persecution are aware of this requirement and few people at risk of persecution children born in Thailand have such documentation. With respect to the border people at risk of persecution populations, new births can however be traced through the medical NGOs’ records in the camps. In addition, the MOI/UNHCR registration, though it is not the official birth certificate, provides official record of new births in camps as the district authorities officially validate them.
Kajadpai mentioned that Thai government had the policy to authorise Burmese displaced persons, who came to Thailand before 9 March 1976, to stay temporarily in Thailand “waiting for deportation” (under special conditions) but, in practice, they had settled down in Thailand. The government allowed some of them (e.g. Burmese Displaced Persons Card’s holders) to work legally in Thailand and their children to study in Thai school. Therefore, it can be implied that Thai government would not repatriate these people back to Burma and the children of Burmese displaced persons who are born in Thailand and go to Thai school, so that they could absorb Thai cultures and assimilate to Thai society. In practice, these children are Thai nationals whether or not they possess Thai nationality.
Women population of people at risk of persecution: Thailand is a party to the 1979 Convention on the Elimination of All Forms of Discrimination Against Women and the 1952 Convention on the Political Rights of Women, but few of the provisions thereof have been implemented through domestic legislation. While efforts have been made in recent years to combat the prostitution and trafficking of Thai women, there has been little or no reported change in the situation. Similarly, while the predicament of Burmese women in brothels in Thailand were identified by various NGOs, the RTG turned a blind eye and no official response was provided. It is noteworthy to mention that women, who are people at risk of persecution from Burma, are considered more vulnerable than Thai nationals to this type of abuse inasmuch as they are, in the vast majority, residing in this country illegally. They, by lacking of legal status in Thailand, therefore have no recourse to either the community or legal mechanisms in order to obtain protection from/redress for, this type of trafficking.
Cases of physical/sexual abuses were known to have occurred in camps, but people at risk of persecution committees tended to deal with them according to their own justice system, especially when people at risk of persecution themselves were involved. However, UNHCR was confronted with two rape cases in Tham Hin camp, Ratchaburi province in 2000. The first victim was a young people at risk of persecution woman, who had been raped by a Thai man at gunpoint, while she was collecting vegetables nearby the camp. The victim reported the case to the local authorities and, despite pressure, insisted to have the case tried by a Thai court. UNHCR provided support to have legal assistance by a Thai NGO specialised in women’s rights. As for the second victim, she decided to settle the case for financial compensation after the pressure from both people at risk of persecution community and outsiders who are reportedly being local officials and acquainted with the perpetrator. The people at risk of persecution community tended to aim at settling the case in an amicable way given the fear of reprisals and lack of legal status in Thailand.
Legal instruments related to people at risk of persecution
1.Existing Domestic Legislations
There are three main Nationality Acts, which cover the 3 generations of people in Thailand.
1.Nationality Act, 1913 (from 10-Apr-1913 to 12-Feb-1952) and Naturalisation Act, Ror Sor 130 (from 18-May-1911 to 12-Feb-1952)
2.Nationality Act, 1952 (from 13-Feb-1952 to 4-Aug-1965)
3.Nationality Act, 1965 (from 5-Aug-1965 to present)
Those who were born in Thailand and whose father or mother migrated to Thailand before 3-Oct-85, can be divided into three groups. (i) those, who born in Thailand before 14-Dec-72, are entitled to Alien status , (ii) those who born in Thailand after 14-Dec-72, are entitled to Thai nationality and (iii) the child, whose father or mother is Thai, is entitled to Thai nationality .
An alien, who has a Thai spouse, can submit a petition to the Ministry of Interior to request for naturalisation to be a Thai national. A person may be granted an Alien status prior to obtaining Thai nationality. The duration and condition are subjected to the consideration of the Minister of Interior. If an alien initially entered Thailand illegally, that person would need his/her entry legalised (e.g. obtaining a visa). This can also be done by the decision of Minister of Interior under the Immigration Act, 1979, section 17.
Those who migrated to Thailand can be divided into three groups. (i) Those who migrated to Thailand before 3-Oct-1985, are entitled to Alien status with legal entry into Thailand. (ii) Those who migrated to Thailand between 3-Oct-85 and 15-Sep-99 (Miyazawa card), are entitled to temporary residence permit until 29-Aug-02 in order to allow the status determination process to be finalised for them. (iii) Those who migrated to Thailand after 15-Sep-99, are subject to deportation except if they fled from life-threatening situation (persecution).
The Cabinet approved “The Project to Consider Granting Alien Status to Hilltribe who Migrated to the Country,” which resulted from the Cabinet decision on 3-Oct-96 and 5-Mar-96. This project aimed to solve the problem of hilltribe in having illegal entry status. There are two possibilities, namely, granting them Thai nationality or granting them permanent residence permit as Alien status. The Cabinet opted for granting Alien Status to the hilltribe by using the power in the Immigration Act, 1979, section 17 and 41.
b)Civil Registration Law
Notwithstanding their legal status in Thailand, a man and a woman have the right to register their marriage at the office of local authority which has the duty to issue a marriage certificate as an evidence of their marriage.
Notwithstanding their legal status, the parents of the new-born child have the duty to register their child at the nearest office of local authority which has the duty to issue a birth certificate as an evidence of identification for the child. If the child is not registered within the time frame (i.e. 15-30 days), the parents will be fined in order to have late registration for the child and obtain birth certificate for the child.
Notwithstanding their legal status, the report of death must be made to the office of local authority and the local authority has the duty to issue a death certificate as an evidence of the death of the person.
2.International Instruments related to people at risk of persecution
a)Universal Declaration of Human Rights (UDHR)
b)International Covenant on Civil and Political Rights (ICCPR)
c)International Covenant on Economic, Social and Cultural Rights (ICESCR)
d)Convention on the Rights of the Child (CRC)
e)Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
f)Convention against torture and other cruel, inhuman or degrading treatment or punishment
g)International Convention on the elimination of all forms of racial discrimination
Although Thailand has not signed 1951 Convention, there are other international instruments, which could be explored to what extent they could be applied to the situation of people at risk of persecution in Thailand. For instance, basic rights, such as a right to life is a non-derogable right stipulated in International Bill of Human Rights ratified by Thailand. And, if Thailand withdrew its observation on Article 7 of CRC, Thailand is obliged by the afore-mentioned international instruments, to grant their nationality to a child, who would otherwise become a stateless person.
Realising the facts that there are people at risk of persecution, who possess certain types of cards (i.e. hilltribe card or Miyazawa card), the application of the existing domestic legislations has the same effect on them. For instance, should hilltribe card holders be granted Thai nationality, people at risk of persecution, who have hilltribe cards, would also be granted Thai nationality.
Considering that many people at risk of persecution have established relationships with other people who have other legal status in Thailand (i.e. de facto marriage, applicable people at risk of persecution may have their marriage registered under Thai law so as to apply for Alien status or Thai nationality following their spouses).
Considering that there are children who are born from a people at risk of persecution parent and a parent who has other legal status, the application would be made to register the child under Thai law so as to allow the parents to proceed in acquiring the status of their spouse for their child (i.e. Thai nationality) if one side of the child’s parent is Thai national.
There are many children of people at risk of persecution, who are born in Thailand and they are, in principle, entitled to Thai nationality based on the principle of the nationality on the territory. The application of the government’s policy for the group of Burmese displaced persons is that those children, who are born in Thailand and integrated to Thai society, are practically Thai nationals. In addition, Thailand may have an obligation under the international instruments of which Thailand is a signatory State should the reservations are withdrawn, to grant nationality to the children, who cannot prove their nationality. For instance, if Thai government cannot prove that the children of people at risk of persecution from Burma have Burmese nationality, Thai government may be obliged by the international laws to grant Thai nationality to these children.
Considering that there are people at risk of persecution who have been living in Thailand prior to the establishment of the camps along Thai-Myanmar border, there is a possibility that they might have missed the registration processes for any certain type of cards. For instance, people at risk of persecution in Mae Hong Son could also be considered as indigenous hilltribe in Thailand as they have been living in that area for many generations. Thus, they may fit in a certain time-frame for having Thai nationality or Alien status. There are also people at risk of persecution, who have their relatives living outside the camps and entitled to certain types of legal status. There is also a possibility that they might have crossed over to Thailand at the same time as their relatives but they might have missed the registration process.
The above scenarios have shown the possibilities that various groups of people at risk of persecution from Burma in the camps may at present be entitled to certain legal status in Thailand. Given the possibility of obtaining legal status in Thailand, it might bring a durable solution to them. Nonetheless, most of these processes will involve arduous efforts and legal expertise in trying to acquire the facts and determine the applicability of legal status on people at risk of persecution under Thai laws.
By possessing an illegal migrant status, people at risk of persecution do not have the rights as to be equal to other Aliens who legally entered Thailand, i.e. right to health care, education, work, own property, freedom of movement, etc. Moreover, the condition in granting temporary residence with illegal immigrant status is subject to change without prior notice. Thus, lacking of any legal status in Thailand for people at risk of persecution mean that their lives and security are volatile and their rights as people at risk of persecution are not recognised under civil laws.
Application of legal mechanisms
The researcher has been involving during the past few years in the application of both domestic and international legal mechanisms in the effort to provide effective protection of human rights to people at risk of persecution who fled from Burma and sought asylum on Thai’s soil. Application of international laws is still very limited in many ways due to reservations made in each Convention ratified by RTG, difficulties or lack of goodwill in the implementation of the Conventions signed, or not signing for the Conventions at all e.g. 1951 Refugee Convention. However, interventions made by UNHCR, international community/NGOs, local institutions and local NGOs have contributed to the success of the protection of human rights of people at risk of persecution to a certain extent. These successes, nonetheless, depended very much on the availability of domestic laws.
The researcher involved in, at least, two instances where these interventions were deemed to be successful. The first instance concerned with one of the process to grant legal status by the recognition of birth of people at risk of persecution in Tham Hin Temporary Shelter, Suanphung district, Ratchaburi province. The researcher introduced the idea to register the birth of new born babies of people at risk of persecution in the camp and to issue them with birth certificate during the MOI-UNHCR Workshop on Registration in 2001. The proposal was heavily criticized by the authorities due to the confusion of laws and misunderstanding about granting Thai citizenship to those babies as a result of the issuance of birth certificate. After many rounds of discussion with local authority with the explanation of Civil Registration Act in combination with the “special procedure” for persons of concern (POC), who were transferred from Maneeloy Burmese Student Center (MBSC) to Tham Hin Temporary shelter in late 2001, the first birth certificate for people at risk of persecution living inside the camp was issued in early 2002. Further negotiation was made to extend the provision for the issuance of birth certificate to other people at risk of persecution, who are not from MBSC. Local authority finally agreed to extend such a provision and was about to issue birth certificate. Unfortunately, the order was made by MOI not to register nor issue birth certificate to any child born from parents, who entered into Thailand illegally. This order also applied to people at risk of persecution living in camps along Thai-Burma border and, unfortunately, terminated the process to grant legal status by issuing birth certificate to people at risk of persecution in the camp.
The second instance concerned with the protection of human rights and human dignity of people at risk of persecution by the application of Thai law. The instance occurred as the result of the incident where a young boy, who is people at risk of persecution living in Tham Hin Temporary Shelter, was severely beaten to unconsciousness by a Thai man living near by the camp as the boy was misunderstood for stealing his beatlenut. The boy’s hand was tied and dragged to be tied at the pole of the perpetrator’s house before the Thai man beaten him with a bamboo stick and slapped his face until he was unconscious. Eventhough the boy’s mother came to beg for the release, the Thai man did not heed her request. The boy’s mother was threatened not to step any closer otherwise she would be beaten as well. The Thai man scolded both the boy and his mother as being refugees living on the mercy of Thai people and they were illegal in Thailand, as a result, he could beat them to death as they do not have any right in Thailand. After the fact was known, UNHCR intervened and brought the mother of the boy to file a case at the police station upon her request. It was extremely difficult to report the case as police officer did not want to be involved in the case as it would, as it was claimed by the police officer, stimulate the hatred to people at risk of persecution in the camp among local community. When UNHCR insisted on the mother of the boy’s request to report the case and file a lawsuit against the perpetrator, the police officer unwillingly agreed to do so with the condition that Thai UNHCR officer would be the person, who reported the case as the mother of the boy does not have legal status in Thailand. After the case was reported, there was a strong resistance by local community and they had threatened to stage a protest in front of the district office, if the Thai man was arrested. Consequently, UNHCR with the cooperation of Thai Society of Law, discussed with community leaders and explained the facts of the incident, Convention on the Rights of the Child and Thai laws. After many rounds of discussion, the Thai man admitted that he was guilty and local community agreed to have him trial at the court. The Thai man was convicted of being guilty in causing harm to other person and sentenced to one month imprisonment and 500 Baht fined but he would be on probation for one year in lieu of imprisonment. The mother of the boy joyfully thanked Thai authorities and everyone concerned with the case for regaining herself and her son’s human dignity and protecting their basic human rights.
To recapitulate, though the application of international and domestic legislations could provide the protection of human rights of people at risk of persecution to a certain extent, legal status is still indispensable for people at risk of persecution to enjoy the effective protection of their human rights. Many challenges are still pending for any effective remedy be it the process to grant legal status, the admission criteria or the treatment of people at risk of persecution while they stay in Thailand. Therefore, appropriate mechanism should be instituted and effectively implemented in order to grant legal status to people at risk of persecution as it would lead to the effective protection of their human rights.