LAW
AND SOCIETY
By
William J. Klausner *
IN
THAILAND, AS IN OTHER developing countries, there is constant tension
between the positive law, as promulgated by the central government authority,
and the "living law," or customary behavior. Anthropologists such as Hoebel,
Malinowski and Radcliffe-Brown, and novelists such as Vicki Baum, Geraldine
Halls and Chinua Achebe, have, from their different perspectives, eloquently
delineated the crise culturelle resulting from a confrontation
hetween the formalistic legal world, often associated with Westernization
and modernization, and the traditional behavior of a society regimented
by ceremonial and work cycles; by economic pressures of an impoverished
subsistence economy; by taboos, magical-religious sanctions and community
judgment; and by traditions and beliefs expressed through such interpreters
of the cultural subconscious as spirit doctors and clan chiefs. However,
the crisis is not only a cultural one. There are obvious social and political
implications as well in an environment where the discrepancy between law
and custom is marked. Inevitably, laws will be honored more in the breach
than in the observance, and this will result in a loss of respect for
the rule of law. This paper will attempt to examine the effects of this
imbalance between law and custom in contemporary Thai society and explore
ways and means to achieve a congruence and constructive tension between
these two forces.
Traditionally,
in rural Thailand the social order and solidarity of the village was maintained
by recognized and accepted norms of appropriate behavior. Deviations were
kept at a minimum through a complex web of family, communal, Buddhist
and animist constraints. When conflicts arose they were settled by compromise
and consensus, using the charisma and mediation skills of monks, clan
heads and spirit mediums. A voluntary restitution of wrongs committed
against persons and property followed. Dissatisfaction, or "grievance
tension," resulting from the resolution of conflicts, was kept to a minimum.
However,
for better or worse, Thai villages no longer remain in splendid isolation.
They are being radically transformed and being brought into closer contact
with urban society. Government services have expanded, and there has inevitably
been increased contact with government officialdom. The state judicial
system, with its courts and adversary proceedings, now beckons as an alternative
means of conflict resolution. For the most part, the villagers have resisted
the temptation, preferring the traditional Thai techniques for setting
disputes and minimizing confrontation. At times the state has found it
difficult to resist the challenge. In the early eighties the Thai Ministry
of Justice sought to encourage the use of courts in even the most remote
rural areas by establishing a mobile court system. As might have been
predicted, rather than resolving conflicts, social friction and discord
were encouraged and exacerbated, and such courts were soon abandoned.
While
certain government officials appreciated the potential negative consequences
of an adversarial court system, similar failure occurred when at about
the same time a pilot project was initiated by a provincial governor to
establish in selected villages "pavilions for compromise of disputes."
These village courts were to mediate conflicts, thus avoiding the necessity
to use the official state court system. Unfortunately, these village courts,
imposed from the outside, failed to rely on the informal village leadership
elite traditionally responsible or conciliation and mediation. By substituting
an additional and external system on this existing structure, social disharmony,
rather than concord, resulted. This experiment, as was the case with the
mobile courts, also had to be abandoned.
While
the villagers, for the most part, continue to adjudicate interpersonal
conflicts and actions deemed harmful to communal harmony in traditional
ways, they increasingly cannot escape the long arm of State law and power.
They find themselves accused of constantly violating certain State laws
which are in conflict with traditional behavior. The rationale underlying
these laws is often not clear or meaningful to the peasantry. For example,
in the absence of legal registration and licensing where applicable, legal
prohibitions against the cutting of timber, gambling, fabrication of home
made liquor, production of home-made firearms, slaughtering of cattle
and buffaloes, etc., are continually circumvented. The villagers follow
custom; the authorities, however sporadically, enforce the law. The villagers
will cut down enough timber to build a house or rice barn, will brew some
rice liquor for a ceremonial feast, will fabricate a home-made shotgun
for protection against bandits and for hunting. In most instances the
villagers will know such action is illegal but will feel no guilt as they
are acting from economic necessity and in conformity with traditional
practices sanctioned by the community. In addition, they may not fully
comprehend the social, economic and scientific rationales and justifications
underlying such laws. There is also an element of winning a battle of
wits with officialdom. The villagers, harking back to the fables of the
past, identify with the culture hero, Srithanonchai, or his Northeastern
counterpart, Siang Miang, born of the peasantry, who conquered the ruling
authorities through guile and deceit. It is a game villagers have been
playing from time immemorial: how to successfully evade the laws, orders,
and burdens perceived as arbitrary and imposed upon them by those in power.
In
addition to the above examples of the conflict between law and custom
in rural areas, one must note the destabilizing effects of such conflict
in the increasingly important arena of environmental protection and Thailand land right. Villagers are slowly abandoning their reliance on karma as an explanation
for their condition and lot in life. They perceive their state as resulting
from the corruption, abuse of power and misallocation of resources by
those in positions of power and authority. At the same time the villagers
have overcome their traditional aversion to confrontation.(1) The rural populace is now actively resisting actions perceived as inimical
to its quality of life and, in some cases, its very survival. There has
been steady pressure to modulate the pace of economic growth so as to
avoid the devastation of Thailand's dwindling natural resources and the
pollution and degradation of the environment. There are daily protests
and demonstrations against eviction from long term residency in reserved
forest area, the building of dams,(2) industrial
waste pollution of rural water systems, and the siting of toxic waste
plants and garbage dumps. The villagers are confronting officialdom and
demanding that their rights to natural resources be protected, that existing
laws safeguarding the environment be enforced and that new legislation
he promulgated where necessary.
With
the advice and support of non-government organization (NGOs), village
organizations (VOs), media and academia, the village populace is asserting
itself. The hitherto hidden and muted voices--the "whispers" of the rural
poor--are now in full cry and can he easily heard.(3) Authorities have been pressured into stricter enforcement of certain laws
and ministerial regulations but to a more flexible approach in others.
The environmental lobby has achieved some modest success in obtaining
government support for legislation that will acknowledge the right of
villagers to participate in land-use decisions and in the management of
community forest areas and that will restrict the use of forest reserves
for private plantations. However, the environmentally friendly legislation,
as finally promulgated, may not always totally meet the requirements of
the NGOs and VOs.(4)
Part
2
_______________________________________________________________
*
B.A., M.A., J.D. (Law) Yale University, Emeritus Professor, Faculty of
Law, Faculty of Political Science, Chulalongkorn University and Buddhist
University, Mahachulalongkorn
(1)
Some Thai scholars have questioned the assumption that the Northeastern
rural populace has traditionally had a bias against confrontation with
government officialdom and with authority figures. They point to the long
history of overt Isaan challenges to central authority beginning as far
back as 1692 with the first of several rebellions over the next two and
a half centuries, led by messianic holy men referred to as phou mee
bun. There have been other charismatic Northeastern leaders who have
proudly worn the mantle of confrontation with the political powers that
be, e.g., a series of vocal opposition Isaan MPs from the early 1930s
to the mid-fifties. One should also not forget that the Communist Party
of Thailand was established in Sakon Nakhon province in the Northeast
in 1965, and communist cadres in several Northeastern provinces led the
insurgency movement against State authority for the next decade. The present-day
activists confronting officialdom, whether "development monks," local
NGO leaders, or the Assembly of Small-Scale Farmers leadership
may be seen as logical extensions of this historical predilection for
confrontational ethos. However, it should be noted that this historical
line of rebellious confrontation is defined by charismatic leaders in
localized challenges to the authorities. For the most part, the general
populace maintained its aversion to overt confrontational tactics in their
personal relations and especially where outside authority was concerned.
(2)
One of the most sustained rural protest movements in recent history involved
the construction of a hydro-electric dam at the site of the Pak Mool river
in the Northeastern province of Ubon. Starting in 1991 and continuing
until its completion in 1994, there were more than twenty separate demonstrations
in both Ubon and Bangkok against the dam's construction. Since its completion
there have continued to he series of protests demanding fair compensation
for financial losses incurred by the villagers concerned.
(3)
According to statistics released by the Ministry of Interior, there were
713 rallies and demonstrations organized by NGOs and VOs in 1994; of these
204 were in the Northeast, 161 in the North, 151 in the South; 115 in
and around Bangkok and 82 in Central Thailand. In 1995, 694 protests were
reported, and an even higher figure is predicted for 1996.
(4)
A rather striking example of this is the disagreement among environmentalists
themselves concerning a proposed Community Forestry Bill. There are both
defenders and detractors of the proposed law as the rights of villagers
to manage their forest resources are posed against the need to preserve
pristine forests to serve as vibrant watersheds and a habitat for biodiversity.
Compromise would appear to be possible by designating different classes
of community forests and allowing or restricting activities accordingly.
At present, however, the two camps remain divided. |