Criminal law misused in public policies

Criminal law misused in public policies

In this 2019 file photo, an artist holds a painting of missing Karen rights activist Porlajee 'Billy' Rakchongcharoen, a victim of an enforced disappearance, who had tried to protect the Karen community in Kaeng Krachan forest. Pattarapong Chatpattarasill
In this 2019 file photo, an artist holds a painting of missing Karen rights activist Porlajee 'Billy' Rakchongcharoen, a victim of an enforced disappearance, who had tried to protect the Karen community in Kaeng Krachan forest. Pattarapong Chatpattarasill

If Thailand wants to preserve its fast-dwindling forests, it pays to ponder if it's insane to repeat the same policy that has failed for decades, yet still expect it to succeed.

The forest laws, for example.

The draconian forest law and regulations are based on the fierce belief that humans and natural forests cannot co-exist. The forest authorities' mission is then making the forests free of humans by criminalising forest dwellers.

Subsequently, violent evictions, arrests and imprisonment occur routinely across the land although many villagers have lived in the contested areas long before they became protected forests.

The policy that treats people as the enemy of nature has miserably failed to protect the forests. Yet violence in the forests goes on unabated.

Such heavy-handedness is not limited to the forest agencies. It is part of the centralised government's autocratic culture that uses a big-stick, uniform approach to tackle problems instead of being inclusive and sensitive to different needs on the ground.

This is also true with the government's strict, uniform policy to handle the Covid-19 pandemic across the board regardless of the grave disparity in society.

The curfew orders, for example, stem from the government's assumption that everyone has a home to return to. Hence the arrests of many homeless people.

The draconic forest law and the city lockdown reflect the bureaucratic autocracy that is insensitive to people's different ways of life. Vulnerable groups suffer the most from this top-down policy.

True, many forest encroachment are recent. Still, a large number of villagers who are arrested are old-time residents. Among them are the villagers at Ban Sap Wai and Ban Hin Ru in Chaiyaphum province.

The two forest settlements were legally recognised by the Interior Ministry under the Local Administration Act in 1980 and 1975 respectively. In 1992, the Department of National Parks, Wildlife and Plant Conservation declared the areas as part of a new Sai Thong National Park, making the villagers "illegal forest encroachers" overnight.

Of the 200-300 families there, 19 people were handpicked to face criminal charges. As of now, 14 have been sentenced to jail terms ranging from four to 12 months with fines from 40,000 to 900,000 baht. The rest of the villagers are now living under intense insecurity and fear.

The indigenous Karen forest dwellers in Phetchaburi's Kaeng Krachan jungles face similar inhumanity.

Their ancestral land appeared as "Jai Paen Din" (Heart of the Land) village in the military's map by the Royal Thai Survey Department in 1969. The Interior Ministry recognised Jai Paen Din as a village in 1975.

When the lush forest areas were designated Kaeng Krachan National Park in 1981, the indigenous forest dwellers immediately suffered forced relocation. Facing poverty and hunger in the resettlement village, many fled to their ancestral home. To force them back, forest officials burned down their houses in a violent crackdown.

Like many other forest villages in Thailand, Ban Jai Paen Din, Ban Sap Wai and Ban Hin Ru had sufficient evidence to show their village history. Informal evidence includes village layouts, old trees, and remnants of farming and community rituals while legal evidence includes formal recognition of the villages by the Interior Ministry.

Yet forest authorities and other state agencies insist on using land titles as the only acceptable legal document to prove land ownership.

But how could they have the land titles when their remote settlements are out of the radar of the Land Department? That is how the law turns the natives into illegal encroachers in their ancestral lands.

Denying the forest dwellers land rights deprives them of their essential source of livelihood. It kills their culture and human dignity. Meanwhile, ongoing violent forest crackdowns have intensified land rights conflicts between the locals and forest officials across the land.

There have been some attempts to ease the conflicts, but the government still refuses to accept the locals' land rights. Strictly by law, people in forests remain criminals who must be arrested and sent to jail.

Meanwhile, forest authorities keep mounting violence against the forest dwellers via the "Reclaiming Forests" nationwide eviction campaigns backed by the military. They have also issued new, much harsher reclaiming operations to suppress forest dwellers.

This is overcriminalisation -- the misuse of criminal law by applying this grave legal measure to the acts that do not seriously violate public morality nor incite severe danger in society.

Using criminal law with the acts that involve a large group of people who cannot be all arrested also violate basic legal principles. What follows is selective legal enforcement which fails to solve the problem.

State authorities must realise that criminal law is the harshest legal measure that should be used as only the last resort.

The definition of forest encroachment is also problematic. It covers not only the occupation of land but also the removal of all items from the forest, allowing only research and tourism activities.

The policy bias for city interests denies the locals of their right to benefit from their natural surroundings ecologically. It does not differentiate forest use for subsistence or profit either. Worse, it criminalises old-time residents.

Arresting and evicting forest dwellers is like punishing people for living in their own homes. The persecution also prevents the locals from restoring their forests. So much for the forest agencies' insistence that forest protection is their goal.

A similar absurdity is in the policy to arrest the homeless because they are not staying home during curfew hours.

The long debates on whether humans can coexist with the forest are now settled internationally. Research and living proof from around the world have shown that humans not only can coexist with forests, but they also contribute to forest restoration under favourable circumstances.

If state authorities refuse to listen to the forest dwellers' voices, they should listen to Elinor Ostrom, the Nobel Prize laureate in economics. She has proved that the most sustainable way to protect the commons, including the forests, is through collective management and monitoring by the users themselves in an open and accountable system.

According to her research, sustainable forest use and management are possible when conservation areas and the group of locals in charge are clearly defined. The locals must also have a say in setting communal rules that are suitable for local conditions.

Apart from taking part in the decision-making and monitoring process, local communities must have state-endorsed authority to impose disciplinary sanctions on the members who violate communal rules. The mechanisms to resolve conflicts must also be inexpensive and of easy access.

From her research, the combination of these factors effectively fosters cooperative behaviours and reduces the overexploitation of natural resources.

It is clear; the government must change its mindset. This is not only about forest management or pandemic control. In tackling all problems, the government must stop using top-down, uniform public policies.

Instead, the government must pay attention to each group's different needs and ways of life to ensure their access to basic needs.

Moreover, the government must have different tools ready to deal with different problems appropriately. They may begin with providing assistance and know-how as well as encouraging cooperation before introducing any sanctions at all, which should start from mild measures. For serious damages, heavy punishment must be limited and clear to everyone right from the start.

When the state understands different ways of life of its citizens, it will know when and how to use the carrot or stick appropriately. This will spare vulnerable groups from more suffering, reduce the officials' workload, and save the national budget.

Eventually, conflicts will ease and cooperation will increase to improve the quality of life and the environment. This is possible, however, only when the government uses empathy not raw power with people.

Siranan Dechakupt is a researcher at the Thailand Development Research Institute. Policy analyses from the TDRI appear in the Bangkok Post on alternate Wednesdays.


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