LAW
AND SOCIETY
By
William J. Klausner
While
some measure of legal reform has occurred in the environmental sphere,
there remains a significant gap between the law and the expectations,
concerns and customary behavior of those affected by the degradation of
the environment in both rural and urban Thailand. There must be a legal
framework that provides sufficient control and regulation of activities
inimical to the preservation of the environment. If not, given the heightened
public sensitivity to this issue, continued social and political tension
and unrest will persist.(5) Land rights is
the arena where such rural conflict and discord is most evident. The bureaucracy
at both local and national levels has been slow to accept the right of
rural villagers to own outright the land they farm. Today it is estimated
that as many as ten million people live and work on land that officials
have designated as not being legally available for agricultural use. This
is a dramatic example of the discrepancy between customary behavior and
practice and the law and its interpretation by the bureaucracy. This situation
has led to corruption and exploitation by officials, politicians, and
business interests. With a more assertive and aggressive rural populace,(6) the ingredients for political confrontation and violence are in place.(7) Not only will the law and ministerial regulations have to be changed,
but the bureaucratic mind-set and behavior also has to be transformed.
The government must also be perceived as being motivated by fairness,
equity and justice. The villagers are increasingly aware of the more favored
status of business in terms of use of protected land, e.g., the business
sector is allowed to mine in Grade A watershed areas and national parks.
On the other hand, the villagers are fighting just to continue living
in areas where they had often been resident long before protected forest
zones were designated. An effort to respond to these concerns is the drafting
of community forestry legislation mentioned above, which will allow communities
living in forest reserves and conservation areas to apply for community
forest status. They must, however, produce a plan for conservation and
sustainable management that meets Forestry Department criteria.
In
urban society similar conflicts between law and customary behavior abound.
To observe this conflict daily in a somewhat dramatic fashion, one has
only to traverse Bangkok's concrete rat's maze where traffic laws ore
regularly flouted with reckless abandon; where buses, lorries, tricycles
and motorcycles constantly spew forth fumes that are illegal as well as
asphyxiating; where motorcycle taxis illegally transport harried commuters
up and down winding lanes and through traffic clogged road; where, in
contravention of the law, construction sites are not covered with thick
canvas to prevent the spread of dust; and where children sell flowers
and snacks at intersection, risking the law as well as life and limb.(8) On the sidewalks, ubiquitous stalls, illegally situated, openly flouting
tradernark laws, sell fake Lacoste, Fila, Ellesse shirts and Gucci, Cardin
and Vuitton accessories while the expensive originals are displayed in
the elegant luxury shops in nearby malls. Beggars importune the public
on the streets and pedestrian overpasses in flagrant violation of the
1941 Anti-Begging Act. In office buildings, workers play the underground
lottery(9) and participate in a variety of
legally questionable pyramid and chit share schemes. As in the case of
their rural brothers, the urbanites feel no guilt in their above-described
illegal behavior, as they too are largely acting from economic necessity
and from the demands of time and convenience, a negotiable currency in
urban society. Their actions are also in conformity with traditional practices
sanctioned by the community.
Bangkok,
the City of Angels, provides in its uncontrolled, unplanned, chaotic growth,
a dramatic example of how even when a law to regulate dysfunctional behavior
is finally promulgated it may actually accentuate rather than minimize
the discrepancy between the law and customary practice. The capital's
first official city plan was only passed into law in 1992. While this
was 210 years after the establishment of the city, it was also some seventeen
years since the draft plan was first drawn up in 1975. As the law is not
retroactive, one is constantly confronted with the stark reality of buildings,
in their construction and siting, in contravention of the law's requirements.
To add insult to injury, the new law itself is already outdated, e.g.,
there is no recognition of the expressway system, presently under construction,
in the plan.
Prostitution
and abortion provide two further examples where there is a marked divergence
between the law and customary behavior. Over the years there have been
recommendations to legalize prostitution and to broaden the exemptions
under the abortion law. Those favoring reform are principally concerned
with lack of proper medical controls and the concomitant threats to health
which both prostitution and underground abortion represent.
Despite
legal prohibition, prostitution flourishes in a variety of disguises.
In addition to the more conventional "a house is not a home" brothel.
there are bars, massage parlors, escort services, member clubs, teahouses,
"cricket" hotels and "drawn curtain" motels. Raids and arrests occur sporadically.
Enforcement is on a highly selective basis, at irregular intervals, motivated
largely by political pressures. It is inevitable that such selective enforcement
will involve a certain amount of corruption. There appears to be a general
cosensus that penalties for procurers and owners of brothels should be
increased. However, those advocating legalization of prostitution have
made very little headway. Recently, recommendations for the decriminalization
of prostitution have found increasing receptivity within academic circles.
Such decriminalization would serve to bring the law and custom into closer
conformity while avoiding the problems attendant on legalization through
registration, e.g., bureaucratic red tape, corruption, loss of face and
stigma for the women with public labeling, and issues of morality and
prestige within the international community. The prostitutes simply would
not be subject to punishment while procurers and pimps would he severely
punished.
Part
3
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(5)
In October 1993 thousands of villagers under the aegis of the Confederation
of Isaan Small Scale Farmers marched on Bangkok demanding that the government
respond to their appeals on land ownership rights, falling crop prices,
resettlement problem caused by government projects, etc. As usual, the
government promised to be responsive to their grievances; in fact, little
was done. A little over two years later the Thai Forum of the Poor, drawing
on the Confederation's membership, as well as urban disadvantaged labor
and slum groups and a cross-section of socially conscious academics and
NGO representatives, organized a protest in front of Government House
with a familiar list of demands for greater people participation within
the political system in order to solve problems concerning eucalyptus
plantations, land rights, compensation for lands and income lost through
construction of dams, toxic waste dumping, health security for laborers,
etc. As usual, the government in power made soothing noises and promises.
The first few months of 1997 saw the Assembly of the Poor once again encamped
before Government House, the number of protesters sometimes reaching ten
thousand.
On
the other hand, although frustration, annoyance and discontent is obviously
felt by the harried urbanites, they have shown remarkable forbearance
in tolerating the daily degradation of their environment. Unlike their
rural counterparts, they have not taken to the streets. The Bangkokian's
patience with the excesses of political degradation is far less. There
have been demonstrations and protests, some drenched with blood, others
merely with rhetoric, in defiance of abuses of authoritarian power and
control. A colleague at the university remarked that the capital's citizenry
probably feels reform of Bangkok's environment is hopeless, but reform
of the political system is still possible. In this connection, there seems
to be a growing impatience on the part of the Bangkok populace with the
corruption and inefficiency of parliamentary democracy. Some have suggested
it would better serve the Thai body politic if there were more patience
with the relatively controlled chaos of the democratic process and less
with the uncontrolled chaos of the environment.
(6)
Even the normally serene monkhood has not heen immune to the increasingly
confrontational approach vis-a-vis authority now so prevalent in the countryside.
Activist monks have taken up the cause of villagers fighting for their
rights to continue to work in reserved forest areas where they have been
living and to actively participate in conserving such land.
(7)
Within the past few years, more than a few activists have peen murdered.
As was the case with the more than twenty unsolved murders of farmer activists
in the early and mid-seventies, these recent killings are, with few exceptions,
either unsolved or unpunished.
(8)
As for children and others servicing traffic-weary commuters at intersections,
the police have acknowledged their sympathy for the economic plight of
the sellers and have basically turned a blind eye to these transgressions.
There is similar compassion for and lack of enforcement against out-of-work
provincial mahouts who bring their elephants into Bangkok in contravention
of a law prohibiting such travel. The authorities also have no facilities
to house the elephants if they were forced off the streets. It is deemed
to be good luck to pass under the stomach of an elephant, and urbanites
pay for the privilege.
(9)
This illegal underground lottery system, huay tai din, is as prevalent
in up-country provincial and rural areas as it is in the capital. To add
insult to injury, this illegal gambling system is based on the last two
or three digits of the officially sanctioned government lottery draw,
or, in a variation, huay hun, on the last two numbers of the Stock
-Exchange of Thailand index at the close of each session. It has been
estimated that the cash turnover of the underground lottery is around
Baht 100 billion a year, roughly equivalent to the total yearly value
of Thai rice exports. While the sellers and corrupt policemen reap obvious
benefits, it is the bosses who operate and control the lottery in sectors
of the capital, in a province, or even in several provinces, who have
become immensely rich. Their profits are estimated as anywhere between
five to thirty million Baht a month. An analysis of the undergound lottery
system clearly indicates that when a specific illegal activity is, for
whatever reasons, not challenged or controlled, it can lead to a subsequent
separate and seemingly unrelated criminal activity. In this case, it is
the huge profits from the underground lottery that provide the necessary
capital for vote buying the sine qua non of provincial politics.
It is not surprising that many successful MPs are reputed to be underground
lottery bosses. Certainly quite a few of the financiers and election canvassers
associated with political campaigns are drawn from the pool of underground
lottery bosses. |