Divers Paths to Justice - English - Forest Peoples Programme

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Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaThe change of leadership in the government of Thailand brings hope to thislongstanding issue of lack of land ownership, especially for thosecommunities living in classified forest reserves and national parks. OnDecember 30 th 2008, the Democratic Party presented their policy whichtackles land rights issue to the Parliament. This policy aims to allocate landto landless people and to accelerate the process of issuance of land titledeeds for those occupying State owned lands (i.e. national parks, forestreserves) in the form of community land titles. This policy is consistent withArticle 85 (1) of the new Constitution. The discussion on community landtitling has been ongoing for years but it is only the new Government thathas actually passed a policy on this matter.In March 2009, the National Land Reform Network, composed of civilsociety organisations and landless people, including indigenous peoples,staged a rally in front of the Government House in Bangkok, demanding theissuance of a law or mechanism that would effectively deal with land titling.In response, the government established six sub-committees to deal withland issues. The sub-committee that directly concerns indigenous peoples isthe sub-committee on Land in Forest Areas chaired by the Minister ofNatural Resources and Environment.Rights to traditional occupations, livelihood and food securityThe rights to traditional occupations and livelihoods are basic rights that allThai citizens and therefore also indigenous peoples should enjoy inaccordance with the Constitution of 2007, particularly Sections 43 and 66.Furthermore, Article 6 of the International Covenant on Economic, Socialand Cultural Rights (ICESCR) states that “the State must guarantee therights of free employment and livelihood, including the provision ofcontinuing technical advice and support”. Thailand’s indigenous peoples,however, do not have the right to their traditional occupations or livelihoodpractices. Rather, seizure or exploitation of resources by private companieson the one hand, and the imposition of fines or arrests for practicing theirtraditional occupation and livelihood systems on the other hand have beenof frequent occurrence.139
Divers Paths to Justice: Legal pluralism and the rights of indigenous peoples inSoutheast AsiaThe Karen people have practised rotational farming for centuries, yet everyyear, Karen individuals are arrested by government forestry agents. InMarch 2008, Mr. Dipaepho (80 years old) and Ms. Naw He MuiWingwittcha (35 years old) from Mae Omki Village, Mae Wa LuangTambon, Tha Song Yang, Tak Province, were arrested by forestry officialsas they were preparing their fields for planting rice and upland plants. Thecharges made against them related to the clearing of land, the felling trees,and the burning of trees within a national forest. This was condemned ascontributing to the degradation of national forest land, damaging watersources without permission and causing a rise in global temperature. 10Mr. Dipaepho was charged with damaging 21 rai and 89 wah (8.2 acres) ofland at a cost of 3,181,500 baht (US$91,000). Mrs. Nawhemui was chargedwith damaging 13 rai and 8 wah (5.2 acres) of land at a cost of 1,963,500baht (US$56,000). Furthermore, the court ordered Mr. Dipaepho’simprisonment for two years and six months, but since he confessed to theso-called “crime”, the sentence was reduced to one year and three months.Mrs. Nawhemui was also condemned to imprisonment for two years but hersentence was later reduced to one year after she too confessed to the socalled“crime”. Both of them are now out on bail under the guarantee of theland titles of their relatives worth THB 200,000 (USD 6,259) each. Both ofthem have also petitioned to the Appeal Court in reaction to their treatment.The concept and practice of legal pluralismThe link between rotational farming (RF) and legal rightsA key factor in the rotational farming (RF) cultivation system is the right ofaccess to natural resources. Forestry and RF are different sides of the samecoin, depending on the definition. This has been a chronic problem as theGovernment Forestry Department manages natural resources in a linear or10 Report on the Situation of Human Rights and Fundamental Rights of IndigenousPeoples in Thailand Submitted to Prof. James Anaya, United Nations SpecialRapporteur on the Situation of Human Rights and Fundamental Freedoms ofIndigenous People. Presented on 19 January 2010, Chiang Mai, Thailand.140
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Divers Paths to Justice - English - Forest Peoples Programme

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