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Editors --- "Shadow Report to Thailand's Initial Periodic Report to the Human Rights Committee - Digest" [2005] AUIndigLawRpr 84; (2005) 9(4) Australian Indigenous Law Reporter 123

SHADOW REPORT TO THAILAND’S INITIAL PERIODIC REPORT TO THE HUMAN RIGHTS COMMITTEE

Asian Human Rights Centre

Delhi, India

13 July 2005

Introduction

…

As Thailand comes up for hearing for the first time before the United Nations Human Rights Committee on 19-20 July 2005, the denial of the right to nationality to indigenous hill tribes should become one of the most critical issues …

The Initial Periodic Report of Thailand provides little information on the hill tribes. The UN Human Rights Committee in its Working Group Meeting in April 2005 sought further ‘information on the situation of the members of hill tribes (‘Highlanders’) with respect to their enjoyment of their rights under article 27 of the Covenant [International Covenant to Civil and Political Rights] and their rights to freedom of movement, to citizenship and to land/property.’(CCPR/C/84/L/THA, List of Issues)

Nothing to Answer: The Right to Citizenship

…

The government of Thailand had expressed reservations to Article 7 of the Convention on the Rights of the Child relating to birth registration and the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents and Article 22 relating to refugee children. The government in its reservation stated that ‘The application of articles 7, 22 … of the Convention on the Rights of the Child shall be subject to the national laws, regulations and prevailing practices in Thailand.’

Thailand’s reservation is contrary to Article 2 of the CRC which states that ‘States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’. It is also ‘incompatible with the object and purpose’ of the CRC as provided under the Vienna Convention on the Law of Treaties.

The hill tribes of Thailand have been adversely affected by Thailand’s Nationality Act of 1965 as amended in 1992. Section 7 provides that

A person born within the Thai Kingdom of alien parents does not acquire Thai nationality if at the time of his birth, his lawful father or his father who did not marry his mother, or his mother was:
(1) the person having been given leniency for temporary residence in Kingdom as a special case;
(2) the person having been permitted to stay temporarily in the Kingdom; and
(3) the person having entered and resided in the Thai Kingdom without permission under the law on immigration.

Under this Act, hundreds of thousands of indigenous peoples were declared ‘aliens’ and continue to be denied their rights. The first population census was conducted in 1956 according to the National Household Registration Act. However, the hill tribes were not covered due to the lack of access to their villages, lack of officers and prejudices. An official survey of the hill-tribes was conducted in 1969-70 covering 16 provinces of Northern Thailand and an estimated 111,591 people were officially recorded. However, the enforcement of the Citizenship Act had already made most hill-tribes aliens. The fact that most hill-tribes could not speak in Thai made it difficult to prove their origin even if they have been living for hundreds of years.

Colours of Discrimination

The hill tribes continue to be issued different colours of identity cards. Each colour reflects racial discrimination against the hill tribes and violation of their right to freedom of movement in the name of ‘maintaining the security of the State, public order, public welfare, town and country planning or welfare of the youth’. (CCPR/C/THA/2004/1)

Blue identity cards are used for highland people who were registered in 1993 after ‘surveying of highland persons for the issuance of personal history cards’ in 1990-1991. This card provides as to where the individual is currently residing in Thailand and restricts all movement outside the surrounding province. To travel out of the province or district, permission must be sought from the district head. If the duration of the travel is more than 10 days permission must be sought from the Provincial Governor. Offenders of this restriction face a heavy fine and a jail term. Holders of this card have no right to employment in urban areas, education, the right to buy land or even to purchase a car.

Green cards with a red border further restrict the rights and freedom of movement. Holders of this card are restricted to movement only within their immediate district and offenders are once again subject to heavy fines and jail terms. This card is given to those who were not registered in the first round in 1993. These people are considered to have migrated to Thailand since 1999, even though in reality the families of many have resided in Thailand for generations.

Pink card holders must seek permission from the district head if they travel out of village or sub-district. To travel out of the district, they must seek permission from the governor. To travel out of the province, permission must be sought from the Permanent Secretary of the Ministry of the Interior.

People with no card may not travel at all.

The Present Status of Granting Citizenship

To highlight the repression and dispossession, in April 1999 four thousand representatives of rural and highland peoples within the upper nine provinces of Northern Thailand organized a protest rally at the Provincial Office in Chiang Mai. They submitted a memorandum to ensure basic human rights, citizenship, and control over land and water resources. This peaceful gathering continued for about one month and was finally dispersed by the government using police and Forestry Officials.

After the protest, the government decided to review the citizenship applications. On 29 August 2000, the Cabinet adopted a resolution to complete the review of citizenship applications by 28 August 2001.

Under the Cabinet Resolutions the highland people were classified under three groups. The first category consists of the highland people residing in Thailand who migrated to Thailand between 1913 and 1972. It was estimated that 100,000 people fall within this category. The second category consists of highland people who migrated to Thailand between the 14th of December 1972 and the 3rd of October 1985 and are eligible for permanent resident status. Their children are eligible for full Thai citizenship. Approximately, 90,000 hill tribes fall into this category. The third category consists of highland people who have allegedly migrated after 3 October 1985 and are considered ‘alien and illegal’ and can be forcibly removed from the country. Approximately 220,527 persons fall under this category.

The process of reviewing the citizenship applications was to have been completed within one year. Since then the Cabinet of the government of Thailand adopted resolutions on 28 August 2001, 27 August 2002, 26 August 2003 and 24 August 2004 respectively.

Yet, according to the Highland Peoples Task Force, as on 24 August 2004, there were 377,677 individuals, including highland peoples, who did not have Thai citizenship or any legal status. Of these, 90,739 were original hill tribes eligible to apply for Thai citizenship, another unknown numbers were eligible to apply under para 7 of the Nationality Act of 1965 and about 2,20,527 were eligible to apply for legal migrants status.

The process of granting citizenship has been marred by discriminatory laws and procedures, apathy and prejudices against the hill tribes, corruption by the bureaucrats, excessive powers in the hands of the District Chief, lack of any judicial or quasi-judicial oversights over the process and the lack of cooperation with the civil society groups.

Naturalised Citizens as Second Class Citizens

Those who are accorded citizenship by naturalisation are treated as second class citizens and do not enjoy all rights accorded to the citizens by birth. Section 19 of the Thailand’s Nationality Act provides that the Minister is empowered to revoke Thai nationality of a person who acquires Thai nationality by naturalisation if it appears that:

(1) The naturalisation was effected by concealment of facts or making any statement false in material particular;
(2) There is evidence to show that he still makes use of his former nationality;
(3) He commits any act prejudicial to the security or conflicting the interests of the State, or amounting to an insult to the nation;
(4) He commits any act contrary to public order or good morals;
(5) He has resided abroad without having a domicile in Thailand for more than five years;
(6) He still retains the nationality of the country at war with Thailand.

The revocation of Thai nationality under this section may extend to children of a person whose Thai nationality is revoked in case such children are not sui juris and acquire Thai nationality under Section 12, paragraph two and the Minister shall, after the order for revocation of Thai nationality has been given, shall submit the matter to the King for information.’

The term ‘prejudicial to the security or conflicting the interests of the State, or amounting to an insult to the nation’ or ‘contrary to public order or good morals’ are undefined legal terms. What constitutes ‘insult to the nation’ is not defined under any law. Prostitution can be defined as an act contrary to ‘good morals’ and naturalised citizens who might be the victims of trafficking and forced into ‘prostitution’ can be deprived of the right to citizenship.

The fact that the Minister can revoke such nationality without being subject to judicial scrutiny is scandalous and shows the lack of independence of judiciary.

Conclusion and Recommendations

The institutionalised discrimination of the Thailand government had devastating effects on the hill-tribes. As the Thailand government states in its Initial Periodic Report ‘The Department of Public Welfare has set up 97 child care centers, 8 provisional schools and cooperate with agencies under the Ministry of Education to bring education services to hill tribe communities who shall enter the ordinary educational system with the knowledge of the Thai language’. The fact that indigenous children are not taught in their mother tongues in clear violation of the Article 27 of the ICCPR has devastating effects on the hill-tribes. The enrollment of the hill tribe children in primary education is 51.19% compared to 87% national average.

The hill tribes have been disproportionate victims of the so called Master Plan for Highland Community Development, War Against Drugs, forced evictions from their lands and houses, and other natural and forest conservation activities by the government.

The UN Human Rights Committee must address the institutionalised discrimination against the hill-tribes, among others, by recommending to the government of Thailand, in its Concluding Observations, to

(1) take steps to incorporate fully the provisions of the Covenant in domestic law, so that individuals may invoke them directly before the courts and consider to ratifying the Optional Protocol to the Covenant, enabling the Committee to receive individual communications relating to Thailand;
(2) amend the Nationality Act of 1965 by deleting its Section 7 and Section 19;
(3) process the citizenship applications of the hill-tribes within a specified time frame;
(4) lift all the restrictions on the freedom of movement and enjoyment of the rights accorded under the ICCPR; and
(5) allow judicial oversight on the citizenship applications which are rejected by the officials of the Ministry on Interior to ensure that the processing of the applications conform to the due process of law, law of natural justice and Thailand’s obligation under international human rights law.

The full text of the Shadow Report, and other Asian Human Rights Centre documents relating to Thailand, are available online at <http://www.achrweb.org/reports/Thailand/Thailand0105.pdf> .

The full text of the International Covenant on Civil and Political Rights is available online at <http://www.ohchr.org/english/law/ccpr.htm> .

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SHADOW REPORT TO THAILAND’S INITIAL PERIODIC REPORT

TO THE HUMAN RIGHTS COMMITTEE

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