Thailand Law Journal 2009 Spring Issue 1 Volume 12

V. THE REALITIES OF LIFE AND DEATH
Thai domestic laws are, for the most part, supportive of migrant workers' human rights. Specifically, in regards to health, labor, and education, Thai laws explicitly protect migrants' welfare. Twelve years of basic education is accessible to all children, regardless of nationality. Migrants cannot be turned away from public health facilities. Thai labor laws make no distinction in regards to minimum wage, maximum daily hours, and other job safety measures. Yet, the ideals of equity and justice in Thai laws do not coincide with the realities of daily migrant lives.

A. Education
All children in Thailand, regardless of nationality, ethnicity, or registration status, are guaranteed a basic education under the National Education Act B.E. 2542 (1999), which explicitly states: "All individuals shall have equal rights and opportunities to receive basic education provided by the State for the duration of at least 12 years. Such education, provided on a nationwide basis, shall be of quality and free of charge."¹⁷⁹ Thus, Thai schools are required by law to offer basic education to migrant children for twelve years. Beginning at age seven, children are required to attend school for nine years of compulsory education.¹⁸⁰ At the age of sixteen, or after completion of ninth grade, the minor can opt out of further schooling, but the government must still provide the option to continue.¹⁸¹ Furthermore, the state is required by the National Education Act to meet the learning needs of students with special circumstances; the Act stipulates: "Persons with physical, mental, intellectual, emotional, social, communication and learning deficiencies; those with physical disabilities; or the cripples; or those unable to support themselves; or those destitute or disadvantaged; shall have the rights and opportunities to receive basic education specially provided."¹⁸² Lastly, migrant children can attend Thai schools. Prior to the National Education Act passing, noncitizen children were only allowed to attend schools in certain areas.¹⁸³

Although migrant children possess these educational rights, rarely do they get to exercise or benefit from them. According to the Ministry of Education, of the 93,000 children under the age of fifteen registered with the Ministry of Interior in July 2004, there were only 13,459 students (a mere 14%) from Cambodia, Laos, and Myanmar attending Thai schools.¹⁸⁴ Moreover, this number is probably higher than the actual percentage because the number of students enrolled reflects children of professionals rather than migrant workers.¹⁸⁵

The greatest obstacle facing migrant children in obtaining an education is the lack of knowledge about Thai law, both within the general population and within the migrant population. Despite the fact that all children aged seven to sixteen are guaranteed an education, immigration officers and governmental agencies believe that it is illegal for schools to provide education to migrant children.¹⁸⁶ As a result, some schools turn away migrant children.¹⁸⁷ Similarly, migrant parents are not aware of the right they possess to enroll their children in Thai schools nor are they aware that a basic education is free of charge.¹⁸⁸ Both the ignorance of officials and of migrant parents prevents migrant children from obtaining the education they deserve.

Instead of attending Thai schools, many migrant children attend schools set up by nongovernmental agencies, if they attend school at all. These schools are predominantly located near Burmese migrant enclaves such as Samut Sakhon (Mahachai), a seaport city that has become known as "Little Burma."¹⁸⁹ The quality of education at these schools is extremely low, which is probably the result of a lack of resources. These schools are generally composed of about twenty to thirty students ranging in age from five to twelve. A single teacher must try to teach at varying levels of complexity depending on the students' ages and mental capabilities.¹⁹⁰ The only subjects taught are reading and writing; other subjects such as math, science, and history are ignored.¹⁹¹ There are no desks or tables, and children often share books and instruction packets.¹⁹² In the case of migrant children, the Thai government fails to fulfill its obligations to provide all children within the Kingdom of Thailand quality, free basic education as established in the National Education Act.

Migrant children likely fall under the categories afforded extra protection in Ch. 2, Sec. 10 of the National Education Act which, as previously discussed, requires the Thai government to meet the needs of students with special circumstances such as children with physical and mental disabilities, children who are destitute, and children who are otherwise disadvantaged.¹⁹³ Migrant children are clearly "disadvantaged," especially considering the language and cultural barriers that they face. In small community schools, Burmese migrant children are taught in Burmese, Thai, and other minority ethnic languages.¹⁹⁴ In public state schools, however, language support is missing for children attending Thai public schools,¹⁹⁵ who are faced with teachers unable to communicate with them in Burmese or their ethnic languages.¹⁹⁶ In addition, the Thai government has not been concerned with the economic disadvantages that migrant students face. Many Burmese children do not attend school at all and many of those who do attend drop out at age eleven or twelve to work illegally and to help support their families.¹⁹⁷ Community school teachers often offer instruction to drop-outs during work breaks.¹⁹⁸ A very vivid example of the Thai government not living up to the ideals enshrined in the National Education Act is the fact that the government does not reimburse schools for the cost of lunches given to illegal migrant children: the school must bear the cost.¹⁹⁹ If all children are guaranteed quality basic education, then the government should not reprimand schools that provide education and services to Burmese migrant children.

B. Right to Safe Working Conditions
Very similar to education, the right to health of Burmese migrants is integrated into Thai labor laws and health policies. With respect to labor law, Burmese migrants are protected under the Labour Protection Act B.E. 2541 (1998). The Labour Protection Act stipulates migrants' rights to daily working hours, breaks, holidays, wages, and overtime payment. For example, § 23 prohibits employers from mandating workers to work more than six days a week and eight hours a day.²⁰⁰ Workers must have thirteen national holidays annually.²⁰¹ The Labour Protection Act also prohibits employers from forcing workers to work overtime "unless the consent of the employee has been obtained on a case-by-case basis."²⁰² In addition, employees must be given a rest period of no less than one hour a day for five consecutive hours worked.²⁰³ These are just a few examples of the rights available to migrant workers through the Labour Protection Act.

In regards to the labor protections afforded in the Labour Protection Act, employers routinely pay less than the prevailing wage of 133 baht. In border towns like Mae Sot, Burmese migrants have reportedly worked for 20 baht (US $ 0.50) a day.²⁰⁴ There have been cases where migrant workers were forced to work overtime and denied sleep.²⁰⁵ A lack of compliance with legal rights prevents Burmese migrants from actively organizing against such exploitation. In addition, many are fearful of employer backlash, even if they are registered and have a legitimate cause of action against the employer.²⁰⁶ There have been allegations of harassment, violence, and even murder of migrant leaders.²⁰⁷ There are also numerous  instances of Burmese migrant women being raped and sexually assaulted by employers.²⁰⁸

Protection and rights gaps within the Labour Protection Act also exist; for instance, the act does not grant Burmese migrants the right to form unions.²⁰⁹ While they are permitted to join already established Thai unions within their workplace, most migrants are reluctant to join out of fear of employer backlash and because Thai union members do not want migrants to join.  ²¹⁰ Cultural and language barriers prevent Thai unions to effectively outreach to Burmese migrants.²¹¹ Thai unions also see migrants as a high risk group because they are subject to deportation and have uncertain legal status.²¹² Furthermore, migrants who have no knowledge or history of union organizing often view unions as another "Thai fee" imposed on them.²¹³ Thai labor laws also do not apply to small businesses that employ fewer than ten workers,²¹⁴ and agricultural and domestic workers are also explicitly excluded from the Labour Protection Act.²¹⁵ Migrant workers that fall within these excluded categories are essentially without protection from labor law abuses.

C. Right to Health
Burmese migrants who are registered with the Ministry of Interior are able to get access to health services. The Ministry of Public Health stated that in provinces where migrants are registered and possess permits to work, they may receive health services ranging from treatment, disease control, health promotion, and rehabilitation.²¹⁶ Migrants working in the fisheries can obtain health services in any hospital within the coastal provinces.²¹⁷ Through the registration process outlined by the Cabinet Decisions, migrants can also obtain health checkups and enlist in the national health scheme.²¹⁸ Once in the national health scheme, migrants need only pay 30 baht for any service needed, and the Thai government is responsible for picking up any costs above the 30 baht fee.²¹⁹

[FN179] National Education Act B.E. 2542 (1999), Ch. 2 § 10 (Thail.), available at http://www.moe.go.th/English/edu-act.htm.

[FN180] Id. at Ch. 3 § 17.

[FN181] Id.

[FN182] Id. at Ch. 2 § 10.

[FN183] Right to Education Workshop, Tak Consultative Forum, supra note 110.

[FN184] HUGUET & PUNPUING, supra note 58, at 43.

[FN185] Id.

[FN186] See id.

[FN187] Id. (stating that "[s]ome migrants report that local schools simply do not accept the children of migrants").

[FN188] Interview with Ma Win, Clinic Staff Member, Rak Thai Foundation, in Bangkok, Thail. (July 21, 2005).

[FN189] Id.

[FN190] Interview with Tha Zin Htet, Clinic Teacher, Rak Thai Foundation, in Samut Songkrahm, Thail. (Aug. 7, 2005).

[FN191] Id.

[FN192] Author's personal observations from visiting several schools in Mahachai.

[FN193] See National Education Act, supra note 179, at Ch. 2 § 10.

[FN194] Id. (explaining how on certain days Thai language was taught and on other days Burmese and Mon were taught).

[FN195] HUGUET & PUNPUING, supra note 58, at 43.

[FN196] Right to Education Workshop, supra note 183.

[FN197] Interview with Teacher from 2<nd> Mahachai Clinic.

[FN198] Id.

[FN199] Right to Education Workshop, supra note 183.

[FN200] Labour Protection Act B.E. 2541 (1998) § 23 (Thail.), available at http://www.mol.go.th/download/laborlaw/labourProtection1998_en.pdf.

[FN201] Id. § 29.

[FN202] Id. § 24.

[FN203] Id. § 27

[FN204] Naw Seng, supra note 137.

[FN205] Macan-Markar, supra note 97.

[FN206] See generally Denis Arnold & Kevin Hewison, Exploitation in Global Supply Chains: Burmese Migrant Workers in Mae Sot, Thailand, 35 J. CONTEMPORARY ASIA 319-340 (2005) (listing a number of incidents exemplifying how Burmese migrants who choose to organize are often retaliated against with beatings, deportation, and sometimes, murder).

[FN207] ASIAN LEGAL RESEARCH CTR., STATEMENT ON 'ABUSE OF MIGRANT WORKERS IN THAILAND' (Apr. 7, 2004), available at http://www.alrc.net/pr/mainfile.php/2004pr/61/; see also AMNESTY INTERNATIONAL REPORT 2004 THAILAND, available at http://web.amnesty.org/report2004/tha-summary-eng.

[FN208] See BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, 2003 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: THAILAND (Feb. 2004).

[FN209] HUGUET & PUNPUING, supra note 58, at 48.

[FN210] Id.

[FN211] Arnold & Hewison, supra note 206, at 323-324

[FN212] Id.

[FN213] Id.

[FN214] HUGUET & PUNPUING, supra note 58, at 48.

[FN215] Martin, supra note 123, at 28.

[FN216] Mr. Chuvong Seangkong, World Vision Foundation, Ranong Consultative Forum, supra note 102.

[FN217] Id.

[FN218] See id.

[FN219] See MIGRANT WORKERS FROM BURMA AND THAILAND: POLICY REVIEW AND PROTECTION MECHANISMS 28 (Alison Vicary ed. 2003), available at http://www.econ.mq.edu.au/_data/assets/pdf_file/17412/Chula_MW_Conference.pdf.

This article is published with the kind permission of Bryant Yuan Fu Yang, Life and Death Away from the Golden Land: The Plight of Burmese Migrant Workers in Thailand, 8 Asian-Pac. L. & Pol’y J. 485 (2007).