The case of the housing project for judiciary officials reflects the state’s monopoly on the use of resources. The people do not have rights. How can judiciary officials stay in forests while villagers cannot? Structural injustice is rooted in the law. Academics point out that this case was a statist type of resource management that ignores the people. The case of the housing project for judiciary officials reflects state monopoly and management of resources.
The case of Grandpa Kaw Ei in Kaeng Krachan forest and villagers affected by the Forest Reclamation Policy and the lack of a community forest law show that the people have no right to the resources of the country.
The housing project for judiciary officials in Chiang Mai (Photo from Facebook)
Statist type of resource management that ignores the people.
Before I come to the content of the headlines, here is some information that you should be aware of for you to read
On 13 March 2018, the Supreme Administrative Court began hearing the Black case Number Or Sor 77/2559 between Grandpa Kaw Ei with the other five native Thai-Pga K’nyaw (Karen) plaintiffs and two defendants: the Department of National Parks, Wildlife and Plant Conservation (DNP) and the Ministry of Natural Resources and Environment. The case concerned an incident on 5 May 2011 when the superintendent and officers of Kaeng Krachan National Park went to the plaintiffs’ houses and ordered the plaintiffs to leave immediately without any written order before setting fire to the houses along with other property of the plaintiffs. The operation was an extension of ‘Operation Tanaosi’: the expulsion, eviction and arrest of ethnic minorities trespassing on Kaeng Krachan National Park land on the Thai-Myanmar border.
In the hearing, the judge-rapporteur made a statement that although the plaintiffs claimed that their ancestors had long been settled in the area, there were no documents confirming their ownership of the land before the designation of the National Park in 1981. Therefore, rights over the land claimed by the six plaintiffs were not protected by the 3 August 2010 Cabinet Resolution. However, as the destruction of the houses and property was not in compliance with the 1961 National Park Act, the court ruled that the plaintiffs should receive 10,000 baht compensation each.
Another issue was the National Council for Peace and Order’s Order 64/2557 on the Suppression and Prevention of Forest Encroachment and Destruction, known as the ‘Forest Reclamation Policy’. It was found that during 2014-2015, the Royal Forest Department (RFD) took 9,231 legal actions against villagers, while during 2014-2016 the DNP took around 6,000. According to the NGO Coordinating Committee on Development, the Forest Reclamation Policy has probably affected at least 9,000 communities. The policy can be said to increase state power, and existing mechanisms and power were used to reduce the power of the people. The result was that a large number of people were robbed of their land and faced lawsuits.
State monopoly of resources
Some may argue that the forest and state-owned lands given for the housing project for judiciary officials are a different type of land. However, we need to look at the bigger picture as this is about the ‘resources’ of the country. Many studies indicate that the country’s resources, such as land, water, forests, ocean, frequencies, etc., have long been amassed and monopolized by the state. To make use of these resources or to give them to anyone is up to the state alone; there is no need to ask the people about how to manage resources.
Regarding the land in Doi Suthep National Park, Somchai Preechasilapakul of the Faculty of Law, Chiang Mai University told Prachatai that in August 2016 over 2,349 rai (about 928.72 acres) of the Park’s land had its national park status revoked and was given to various state agencies such as the National Office of Buddhism, the Chiang Mai Night Safari Project, the Pinkanakorn Development Agency (Public Organization), a Rice Seed Centre, etc. This revocation was made only after the state agencies had already occupied and made use of the land. When there is the legal restriction on the use of a national park land that it must only be for the benefit of forests, the national park status of the land was simply revoked with no consideration regarding the appropriateness or need to use national park land for government agencies.
This is an example of resource allocation and utilization monopolized by the state.
Barring the people from resources
There have been talks about a community forest law at least since 1991. The right to participate in resource management was acknowledged in the 1997 Constitution and later constitutions including the current one. However, until now, the law and these rights have not come into being or used in practice.
Anan Ganjanapan of the Department of Sociology and Anthropology, Faculty of Social Sciences, Chiang Mai University, one of the key advocates for a community forest law, explained that Thailand’s resource management was exclusive, meaning that it was monopolized by state agencies, which had the complete authority to interpret, define, determine and manage them.
“This exclusive management must be responsible for the problems that occur. But in the past, we found that although the state managed the forests on its own, it was rarely found to show responsibility when the forests disappeared. It only blamed the increasing population and forest encroachment. To have the role, duty and authority but not give importance to responsibility reflects that exclusive management is not very effective.”
The key concept of the people’s version of the Community Forest Act is that it opens the way for resource management with the participation of many stakeholders known as multiparty management. It changes the focus from the right of ownership, with the state as the legal owner of the forests, to the distribution of rights to many stakeholders, without denying the state’s right to ownership, but adding in community’s rights to resource utilization and management. Civil society’s right to monitor and counterbalance is also established so that they participate in taking care of the forests. In other words, there are three stakeholders to take care the forests.
Until now, no community forest act has been enacted. Partly this is because the state has not yet given up the idea that it is the sole owner of all resources and that the people are irrelevant.
“As it is exclusive management, they will quote the law so that they can use resources or block use. They can do anything. To let one agency monopolize use and interpretation of the law definitely may create inconsistency. This is because they don’t understand about the right to resource utilization and the right to management that we tried to push for in the community forest law. Seen from one side, it is like giving rights and power to the state. But from the other, it bars others in society from participating in resource utilization, management and whatever other duty it possibly is. Our problem is a paradox where we have a monopoly of management resources that we have got used to and do not let anyone else participate in,” Anan said.
Anan Ganjanapan (Photo from Youtube)
‘Statist’ type of resource management
“The case of the housing project for judiciary officials reflects a ‘statist’ type of resource management,” Somchai explained, “especially of natural resources. From the perspective of the existing legal system which state officials cling to, whether the laws on forests, national parks, state land, etc., these laws give power to state agencies, as the owners, to make decisions on use with almost no regard to communities and society at all. They are laws that were passed a long time ago, so no recognition of the people’s voice appears in them.”
Somchai also said that these laws do not correspond to current use since resource management is not something that state agencies alone should think up; thought must be given to other stakeholders too. These laws have not yet been amended to conform to the people’s constitutional rights. So when state agencies do anything by citing the laws, to justify their actions, these laws give full authority to state agencies, which Somchai thinks will lead to conflict in society.
According to Somchai, the housing project for judiciary officials is legal, but it evades the Constitution. Since it started in the 2000s and 2010s, but was repeatedly put off, to say that it is in compliance with the law therefore only means agency regulations. But no importance was given to the Constitution, which states that in conducting a large scale project that may have an impact on the environment and communities, an Environmental Impact Assessment must be done. In his opinion, state agencies should act as a good example by acting according to the law.
“The second issue is the people’s right to participate in resource management, which is recognized in the 1997 Constitution. To listen to the people’s opinions is a core principle. We should not think only whether a project has an environmental impact or not, as even if it doesn’t but is somewhere that it is unacceptable to people, this means the people should be heard. So, when they say that it is legal, yes, it is. But I see that it evades the Constitution.
“To listen to public opinion is to listen to the will of the people in each locality. That makes state operations more convenient and beneficial to the public. Writing a Constitution is an effort to prevent resource management from being of the decision of state agencies only.”
The structure of resource management that disrespects the people
It may be clearer now that the case of the housing project for judiciary officials is not only a local concern, and is not an issue of legality or illegality; it reflects structural injustice or injustice in resource management that has been rooted in the laws and in state authority and which affects the entire country.
General Witthawat Rachatanan, Acting Chief of the Office of the Ombudsman, has said that in the case of the housing project for judiciary officials, as the matter has got this far, he thinks that the forest and people must be able to live together. Can we ask why Kaw Ei Meemi and the other five plaintiffs in Kaeng Krachan forest and over 9,000 villages affected by the Forest Reclamation Policy can’t live with the forests even though they have been living with the forests for even longer than the housing project?
Somchai concluded “We can clearly see that this is a system or a structure of resource management that disrespects the people. If among state agencies themselves, they can get to use resources, so when one day the rules can be revoked, then this is a type of resource management that gives precedence primarily to the state. So when a state agency wants to utilize resources, they think it is for public benefit, and therefore is permissible. This is the big problem in the structure of the legal system where we have scarcely seen any change yet. The constitution itself is interpreted as enforceable in part, and in part not. This makes the constitution not sufficiently sacred.