16 March 2013

The gap between legal and human rights

The villagers in Baw Kaew community, located in Northeast Thailand, have spent the first few months of this year fighting for their right to have electricity. At the end of January, the government granted them access to electricity. But the conflict did not end there. Instead, the Forest Industry Organizations (FIO) demanded that the police arrest the electricity officers and cut off Baw Kaew’s electricity immediately.

The FIO, a national organization, was involved with Baw Kaew because the FIO technically owns the land that the villagers live on. The villagers live there illegally, and as a result, the FIO contends that they have no right to electricity or other government services. But the villagers have some right to these government services, even if it is not specifically a legal right. Indeed, access to basic infrastructure is a human right that both the Thai Constitution and the international covenants on human rights (of which Thailand is a signatory) claim to protect.
Essentially, the conflict between the FIO and Baw Kaew community illustrates the disconnect between legal and human rights that so many countries face. While the term human rights remains controversial and ill-defined, I take them to be values or ideals that a government promises to uphold. For instance, Part 6, Section 44 of the Thai Constitution proclaims that, “A person shall enjoy the right…to living security.” While living security is vague enough to cover any number of rights, basic infrastructure like consistent electricity certainly should be included under it. Moreover, the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Thailand ratified, stipulates in Part III, Article 11 that, “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” Without electricity, the Baw Kaew villagers lacked what many would describe as an adequate standard of living, but more importantly, the FIO’s attempt to retract Baw Kaew’s electricity violated the villagers’ right to continuously improve their standard of living. In fact, the FIO’s fight with the villagers consistently violates this right because it endangers the villagers’ future, and denies them any sense of living security.

Throughout this fight, however, the FIO has not violated the law. Indeed, it is the villagers who face legal repercussions for their actions. We spoke with the Chief District Officer (CDO), who oversees Baw Kaew village, and he emphasized that it was the villagers’ duty to act within the bounds of the law – otherwise, the government could not help them. Because many of the villagers never had a legal title for their land, and so were squatting illegally, they had no grounds to demand government protection. For example, the FIO sued thirty-one villagers from Baw Kaew for trespassing on forest land, and at the moment, the case is in the highest court. The CDO does not believe that the villagers will win the case, because they have no legal documentation supporting their right to the land. In other words, the FIO can kick them off their land, so they will have no living security or access to a means of supporting themselves.
The CDO did acknowledge that human rights exist, but they are subservient to the law. As he put it, “In human society, there have to be ground rules for people to live together, and that is the law.” In his eyes, the law precedes values and morality, which comprise human rights. The government can and should protect human rights only when they fall under the purview of the law.

This sort of thinking, however, lacks internal consistency. The foundation of Thai laws is the Thai Constitution and the international laws that Thailand commits itself to upholding. When the laws do not abide by the Constitution or the international covenants, they lack legitimacy within the Thai legal system. As the gap between the principles of the government and its actual laws widens, the legal system loses its internal coherence, and actually endangers itself. Without internal coherence, a legal system begins to falter because, as in the case of the Baw Kaew villagers, people demand the principles that the government promises, and reject its laws. An incoherent legal system cannot go unnoticed, and cannot survive indefinitely.
Maia Cole
Amherst University

1 comment:

Mariko Dodson said...

You are right, Maia, that in practice Thai law lacks internal consistency. (The same applies to American law.) What I find most notable is that these rights, whether you call them human, Thai, or constitutional, are already enshrined in both national and international law. The Thai constitution outlines an excellent framework for respecting rights of all kinds, but the government fails to fulfill its promises to protect Thais’ way of life, culture, environment and security. Because villagers fail to produce the right documentation they are apprehended for continuing the traditional lifestyle that has managed the land sustainably for generations. Rights to culture, livelihood, and food are trampled by the government’s interest in developing industry and economic growth. And the benefits of this development, while promised to villagers, seem to be reserved solely for an elite urban minority. As the people’s rights continue to be overlooked in the name of development, who will hold the government accountable?