LAW AND SOCIETY

By William J. Klausner

Under the Thai legal system, wherein appeals may be lodged on issues of fact as well as of law, even at the Supreme Court level, the legal process is necessarily lengthy. Specific reforms in procedural law might well contribute not only to speedier trials but to a sense of justice and fairness. In this latter context it is worth mentioning that in product liability, consumer protection and defamation suits, no punitive damages are awarded to the injured party under Thai law. It may be deemed not to be cost effective to bring charges under such circumstances and a resulting frustration and lack of respect for the law are, perhaps, inevitable. If, for whatever reasons, a wronged party no longer has faith that he will receive timely justice through the judicial system, the result may well be a resort to violent retribution on a personal level.

A variation on this theme is evidenced in the Thai constitution's self-limitation on its own power. While theoretically the constitution is the highest law of the land, de facto, statutes and executive decrees take precedence. The constitution stipulates that Thai citizens enjoy civil and political rights and liberties "except where laws otherwise so stipulate." Such laws, limiting rights and freedoms, are always couched in terms of national security and public order and morality. It is taken for granted that any law passed by Parliament are, de facto, in the interests of national security and public order. A certain frustration may well surface in the face of this legal legerdemain where guaranteed rights and liberties vanish in the rarefied atmosphere of existing or subsequent restrictive legislation. A rather obvious example of this now-you-see-it-now-you-don't legal magic is the 1941 Press Act which restricts press freedom where public order and morals are threatened. Such a decision, which can take the form of a warning, censorship, revocation of an editor's license or closing of a newspaper, is left to the Commander of the Special Branch Second Division in his capacity as Press Officer. Such censorship is in contravention of articles in the present constitution but questioning the law's constitutionality is not a viable option. The solution is to revoke an outdated law and promulgate a new one.

As noted above, laws may be revoked, altered or promulgated so as to achieve a conformity with customary behavior or customary behavior may be changed so as to conform to existing law. The congruence of law and custom may also be effected by completely ignoring enforcement where there is a conflict and, therefore, effectively neutralizing the law in question. This lack of enforcement can even be regularized as in the case of the recent amnesty granted to illegal fishing boats, including trawlers. It was recently decided to legalize thousands of illegal fishing vessels so as to better regulate and manage the realities of the fishing industry. This action was taken despite the objection of small-scale fishermen and environmentalists concerned with the adverse impact on marine life and coral reef preservation. The recent decision to register illegal immigrant workers is another rather dramatic example of accepting reality and effectively bringing about congruence of law and behavior through "legalizing (or less cynically 'regularizing') illegality." However innovative, the legal contortions in this process are a source of some amusement. Those registered as illegal workers will be given a card similar to the one held by illegal immigrants waiting to be repatriated. Under the registration process, employers of such workers must first register them as "illegal immigrant workers" with the local police before bailing them out and officially reregistering them at the provincial labor office. Another variation on the enforcement theme is the use of "transitory clauses" in promulgated laws which provide for the temporary suspension for one or more years in enforcing the law in question, e.g., the law which required motorcyclists to wear helmets, the Medicine Act which required licensed pharmacists to be in attendance at stores selling medicines, and the recent law requiring the use of seat belts. The expectation, not always realized, is that the public will be better prepared to be law abiding when the legislation finally takes legal effect.

Conversely, one can achieve congruence by the strict and pervasive enforcement of the law. Such enforcement not only depends on political wall and a sense of civic duty, pride and responsibility, but also on a trained, efficient police force in adequate numbers. The problem of strict enforcement is often complicated by the lack of legal authority on the part of those officials responsible for issuing regulations and investigating violations to take punitive action against offenders. A case is point is the flouting of waste water treatment and pollution level requirements by various business operations. However, in most cases where law and custom diverge, the tendency on the part of the authorities is to either "turn a blind eye" to infractions of the law or, as more often happens, engage in selective and sporadic enforcement which only frustrates the public, which resents what is largely viewed as arbitrary use of authority. For the harried urbanite, traffic violations and jay walking are cases in point. For some, when other strategies fail to achieve conformity between law and behavior, there is the option simply to opt out of the confining strictures of the law. As I have noted in a previous essay on "Thai Women in Transition," this coping mechanism is practiced by younger generation Thai women who decide not to legally register their marriages. Thus they avoid the discriminatory clauses of Thai family law. Obviously, in most cases it is not possible to deny the force of law by opting out with such impunity.⁽²⁶⁾

The ultimate decision as to which initiative to take--legal or behavioral, or a combination of the two--is one of national policy forged in the crucible of participatory democracy. However, to deny or remain indifferent to the need for such correspondence would be a recipe for social and political disaster. It may well be most appropriate to follow a public policy initially focusing on refinements of existing legislation to achieve a temporary balance between law and customary behavior while at the same time pursuing continuing lone-term educational efforts aimed at ultimately remolding the cake of custom.

One should not overlook the possibility of relying more heavily on citizen's cause/public interest groups, such as consumer and environmental protection groups, to assure compliance with the law. These organizations can most effectively promoted and foster a sense of communal responsibility as well as exert moral and political pressure on the authorities. The result would be a greater adherence to the law on the part of all segments of the community. The citizenry can also have an indirect, but most constructive, enforcement role, assuming the legal and political structure is conducive to such role play. Some countries have successfully utilized an ombudsman at the national level. However, if the citizenry is to undertake such a function efficiently, it must be able to obtain adequate information, e.g., through such a mechanism as a Freedom of Information Act. At present, there are few, if any, proper and effective remedies against impropriety and irregularities on the part of officialdom. Frustration with the law is a predictable result. There has been some public pressure for more than a decade to establish administrative courts (Conseil d'Etat) which would more effectively curb malfeasance, impropriety and abuse of power on the part of officialdom. It is not surprising that the bureaucracy has shown little enthusiasm for this initiative and has, to date, effectively stymied its realization. The most recent variation on this administrative court saga is the unresolved issue of whether such a court should be under the Ministry of Justice or the Council of State under the Prime Minister.

CONCLUSION

Differing mechanisms and techniques for conflict resolution are a profitable area for further research and of vital importance to the nation's stability. So too, legal scholars, social scientists, philosophers, and even novelists, may usefully explore the intricacies of the relationship between the positive law and the living law of customary behavior. For it is the creative tension of this relationship, depending on actions taken by both the public and private sectors, that seeds for either stability and order on the one hand, or insecurity and disunity on the other, may find fertile soil to flourish.

If there is to be a flowering of social progress, harmony, order and justice, one must carefully blend the seed varieties of socially productive accommodation and congruence of positive and living law; adapt the law to the realities of advances in technology and evolutionary changes in political behavior, social values and cultural practices; develop socially rewarding and non-disruptive methods of conflict resolution; and make effective use of the legal system to assure equal access to services and the prevention of exploitation, persecution and discrimination.

If there is to be a flowering of social progress, harmony, order and justice, one must carefully blend the seed varieties of socially productive accommodation and congruence of positive and living law; adapt the law to the realities of advances in technology and evolutionary changes in political behavior, social values and cultural practices; develop socially rewarding and non-disruptive methods of conflict resolution; and make effective use of the legal system to assure equal access to services and the prevention of exploitation, persecution and discrimination.

It is to be hoped that the above reflections will provide a conceptual framework within which one may fruitfully and continually analyze the symbiotic relationship between law and society. To disregard this intimate relationship and view the law in vacuum will result in destructive tension and disequilibrium between law and the sociocultural context in which it operates.

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(26) Thai family law provides us with another example of escaping the force of law with impunity. It is stipulated in the codes that a wife must assume her hushand's family name on marriage. However, in a unique legal twist, no penalty is provided for violation of this requirement. Could this possibly indicate that the male chauvinist legislators have slowly come to appreciate how outdated the discriminatory elements of Thai discriminatory elements of Thai family law are, and portend legal reform in this area in the future?

Another instance where there is no criminal punishment for the contravention of a law may be found in the Beggar Control Act. Those arrested under this act are sent to welfare homes, for rehabilitation.