A public seminar was held on 24 November 2007 at the Faculty of Law, Thammasat University, on "Migrant Labour and Racial Discrimination". Jointly organized by Professor Khanueng Ruechai, the Faculty of Law, Thammasat University, the Cross-Cultural Foundation, the Migrant Working Group and Stateless Watch, the discussion aimed to exchange views and identify solutions to the problems of migrant workers concerning the declarations of the governors of the five provinces of Rayong, Ranong, Phuket, Phang-nga and Samut Sakhon to curb the rights of migrant workers from Burma, Laos and Cambodia claiming that they are a threat to national security.

Provincial orders are unlawful, says lawyer

Mr. Somchai Homla-or, secretary of the Foundation for Human Rights and Development, addressed the gubernatorial directive for the control of migrant workers signed by the governor of Samut Sakhon on 26 October 2007 and the declarations on the control of illegal migrant workers signed by the governors of Phuket, Rayong, Ranong and Phang-nga, on 19 December 2006, 16 February 2007, 27 February 2007 and 9 June 2007, respectively.

Somchai charged that both the gubernatorial directive and the provincial declarations are unlawful. They were issued by invoking administrative power and miscellaneous legal instruments such as the Local Administration Act, the Act on the Registration of Inhabitants, the Automobile Act, etc. Generally, people have the legal rights and liberty to do and not to do anything except those expressly required or prohibited by certain instruments. Therefore, if a provincial authority wants to issue a directive or a declaration requiring or prohibiting certain acts, it must do so by invoking clearly relevant legal instruments. It cannot issue any order with blanket effect, based on very vague legal provisions, such as the orders issued by the five provinces.

Next, a governor has no right to impose a curfew at different times for each province. The provinces where these curfews were imposed are not subject to martial law. Even in martial law provinces, the persons authorized to impose curfews are the highest commander and competent officers.

The imposition of a curfew at staggered times is also questionable. Will a curfew imposed against migrant workers from Burma, Laos and Cambodia, including those with and without work permits, be effective in safeguarding against national threats? There is no good reason to support the claim. It can thus be interpreted that the issuing of such orders stems from prejudice and discrimination against the migrants.

According to the 2007 Constitution, it is unlawful to ban the use, borrowing and lending of mobile phones, the use of motorcycles and cars, ownership of vehicles, and the assembly of more than five people outside places of residence. The governors are not authorized to issue these bans. Such bans obviously contravene the Constitution, including Section 2, as the prohibition is in breach of "a democratic form of government", and Section 3 (2) concerning compliance with the rule of law, and Section 4 concerning respect for human dignity, since the orders promote negative attitudes among employers (toward migrant workers) and make the workers feel worthless compared to other groups of people in society.

"I hold that all these orders are unlawful and invalid" said Somchai. He reiterated that the orders will simply encourage employers to treat employees as slaves, leading to the infringement of the rights and liberties of employees, intentionally or unintentionally. The orders provide that the workers must live under the responsibility of their employers 24 hours a day, even though according to conventional laws, employers are responsible for their employees only during working hours. The orders have been issued with no understanding of existing legal instruments.

The directive of the Samut Sakhon Governor, which has similar content, is not an administrative order, but since it has been issued by the head of the all government offices in the province, it should be considered an act of a competent officer. Therefore, since the Governor has issued such an order, he can be held liable if the order is in breach of international standards or national laws. Disciplinary action can be pursued against the governor in a similar manner to the issuance of provincial declarations.

As for the move by national security units, Somchai theorized that the orders have been supported by the Internal Security Operations Command (ISOC). Similar efforts are being made to push through the Internal Security Act currently before the National Legislative Assembly. In general, it attempts to discriminate not just against migrant workers from the three countries, but other groups in society as well.

Lack of serious enforcement may lead to discrimination

Mr. Chalit Meesit, a member of the Subcommittee on Labour from the National Human Rights Commission said that the issuing of the orders stems from national security claims. But he noted that (1) the claims cited for issuing the laws are inconsistent; (2) their interpretation varies from province to province. And a lack of serious enforcement will lead to discrimination. Government officials can simply use the orders as an excuse to make discriminatory arrests of certain individuals.

From his experience of working in support of these migrant workers, Mr. Chalit gave examples of leaders of these workers who have been fired because they led their fellow workers to protest and demand their rights. Worse, their pictures were posted in public places as if they were dangerous wanted persons. Chain letters were also sent to various factories warning them against hiring these leaders. This has all created suspicion among the workers.

Inspections of illegal labour have no standards, leading to confused implementation. Workers who came out to demand their rights have been reportedly deported. Even though the competent officers announced that they had interim measures to protect migrant worker leaders, they were not effective. Many children and women are forced to work in various sea food processing facilities, not to mention workers on board fishing boats outside the Thai waters.

Because they are non-Thai, they have no rights

Dr. Sriprapha Petcharamesree, Director of the Office of Human Rights Studies and Social Development, Mahidol University, addressed the issues of discrimination against migrant workers. The state hinges on political science principles and thus people who have no Thai nationality, and belong to a different race, ethnicity and culture from us are excluded as "other people", "non-Thai citizens", or what tend to be called "aliens".

What other people in society are entitled to, including employment, education, medical treatment, political access and participation, are denied among the migrants. They have no right to live here permanently and cannot obtain citizenship. There have been attempts to instil the notion that policies and regulations must be developed to control these people and it is justified to do so.

Dr. Sriprapha cited a poll concerning migrant workers conducted by a newspaper in the Nation Group between 25 November and 1 December 2006. It was found that 58.6% of of 4,128 Thai respondents held that migrant workers should not have the right to apply for jobs in Thailand; only 9.7% agreed that they have the right to work in Thailand. 75% of them thought that migrant workers should work for eight hours a day as Thai workers do, but they should not get the same remuneration.

67.3% thought migrant workers should not have the same choices of employment as Thai workers. 50.3% held that migrant workers should not be given legal status here and should not have the same ability to seek employment as Thai citizens. 59.7% viewed that migrant workers should not have the right to self-expression; whereas 77.3% thought they should not have the right to join unions. Only 15.1% held that some support should be given to them when their rights are abused.

"The way of thinking among the Thais is discriminatory, not just the laws" said Dr. Sriprapha of the poll findings.

Dr. Sriprapha further added that it has been proven that the state's claim to maintain national unity and patriotism has in fact not led to a peaceful and happy life. Only through embracing each other's differences can genuine happiness be attained. The Thai state claims it is a democracy, and yet fails to respect people's rights and keeps exploiting marginalized people. They abuse people who have cultures, races, and ethnicity different from them. The anti-democratic words and actions of Thai leaders do not support the claim that we are a democracy.

Concerning the issue of being alien, Dr. Sriprapha said that according to political science theories, this is called the politics of difference and this can create an insecure and unsafe feeling when living with people who are different from us. The more we think they are different from us, the less secure we feel. But these fears have nothing to do with the registration of migrant workers. And there is discriminatory practice by law enforcers on how to obtain Thai citizenship. Tiger Wood has never claimed to be Thai, yet he was granted Thai citizenship by former Prime Minister Thaksin Shinawatra.

Lately, by claiming they were a threat to national security, an order was made by the powers that be to deport women who are pregnant to their country of origin. According to Dr. Sriprapha, the order reflected a very narrow view by the leadership. They tend to look at themselves as owners of this society and anyone coming from outside is excluded. Even using mobile phones is not allowed. And this attempt to control may one day be applied to the Thai people as well.

"Be careful, one day they will control the Thai people just as they are doing with the migrant workers" said Dr. Sriprapha.

Have governors declared independence so they can create unconstitutional laws?

Mr. Surapong Kongchantuek, Deputy Chair of the Subcommittee on the Human Rights of Stateless Persons, Migrant Workers and Migrants, of the Lawyers Council of Thailand, said that all the policies and regulations are masterminded by the employers. Except in Samut Sakhon, the importation of migrant workers stemmed from the demand for labour and has been arranged by the employers, who bring them across the border, make all other arrangements and get them registered. All the laws and regulations work in the service of the employers. For example, the regulations governing some groups of foreigners in Ranong province require the employers to do something but make the employees liable for any wrongdoing.

Mr. Surapong pointed out many similar flaws in the provincial declarations. First, migrant workers are required to show a genuine work permit when inspected by officials. But in reality, the employers always keep the work permits with them, an act of which is unlawful since it happens without the consent of the workers.

Second, the orders contain prohibitions which are not stipulated in conventional laws, i.e., the ban on the purchase, ownership and use of mobile phones by migrant workers. The orders have been issued by the persons who are not authorized to do so and therefore the orders should be considered unlawful. It raises the question of whether the governors who issue such unconstitutional orders are attempting to create their own independent states.

What is more worrying us is the attitude of the governor of Samut Sakhon who said that the 2007 Constitution only applies to Thai citizens and we should not care about applying the clauses on rights and liberties to migrant workers, even though it is stipulated in the Constitution that these apply equally to all, according to the principles of human rights and civil rights. In addition, Section 82 provides that the state shall promote friendly relations and cooperation with other countries, and thus is obliged to provide protection without discrimination. But the government officials simply ignore this and do not comply.

Deportation of pregnant women, premeditated murder?

The idea of deporting pregnant women touted by Gen. Sonthi Boonyaratglin, Deputy Prime Minister for security affairs, in his position as Chair of the Executive Committee on Illegal Migrant Workers, during his tour in Samut Sakhon, and which was widely published in the press on 14 November 2007, was echoed by the governor of Samut Sakhon. On this issue, Mr. Surapong said that the Thai government made it clear that it allowed migrant workers the right to temporary stay since 2004 and the right covered their dependents as well. Any child born to them is entitled to a birth certificate with a 13 digit ID number and a legal status, but is not given Thai citizenship.

In addition, employment regulations which always work in favour of the employers have been criticized by various Parliamentary committees. Despite attempts to help these workers to receive due services, including medical treatment, there are also problems in the inconsistent practice of law enforcement. Some migrant workers who deliver in hospitals are pressed with charges, which is a crime against humanity. He has to explain to hospital staff that they cannot be held liable to a charge of providing shelter to illegal migrants. He worked on this issue until the Ministry of Public Health sent out a directive to hospitals in all provinces that when a migrant comes to deliver in a hospital, they do not have to notify the police.

Given the fatal danger of self-abortion and illegal abortion, the idea of deporting pregnant women is not practical. To deliver along the border of Thailand and Burma may result in the deaths of both the child and the mother.

"Can we consider this order premeditated murder? asked Mr. Surapong.

Concerning solutions to the problems, many participants in the seminar agreed that the orders have made the situation worse. Any legal changes will be ineffective as long as the state sector does not change its attitude. We have to insist that the orders have been issued with no legal backing and are thus unlawful. Since discrimination has been caused by economic factors, they should then be used as an impetus for change including providing skill training for migrant workers, and negotiation with the sending countries.

Efforts should be made to make migrant workers aware of their rights, know the laws and come to terms with their power. Society and the media should be made aware of the real issues. Also, attempts should be made to change the attitudes of policy makers and to strengthen the networks of migrant workers. Once the communities of workers are strong, they will be able to protect themselves. All these proposals will be compiled and submitted to the Prime Minister on 18 December on the occasion of International Migrant Labour Day.