The legal definition of community may not be clear, but the importance of the role it plays in Thai society is unambiguous. Specific laws exist in Thailand to protect community rights, and Ms. Sor Rattanamanee Polkla is more than ready to explain them over a cup of tea on a hot day in the suburbs of Bangkok.
Ms. Polkla is the co-founder of the Community Resource Centre Foundation, an NGO that provides legal aid to communities in need throughout Thailand. The CRC files cases on behalf of communities to seek justice under the 1997 Constitutional Articles 56 and 57 and the 2007 Constitutional Articles 66 and 67. In layman’s terms, Ms. Polkla and her team help the people of Thailand stand up for themselves by utilizing legislation that is already in place but rarely implemented.
In Thailand this is no small feat. Even those who are educated and graduate from law school never truly seem to use the law to empower the people or to go to work for an NGO. Rather, the general attitude is that the law is only a construct for people who posses status and power.
“The right of a person to give to the state and communities participation in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment for usual and consistent survival in the environment which is not hazardous to his or her health and sanitary condition, welfare or quality of life, shall be protected, as provided by law.” –Section of Article 57
Founded in 2010, the CRC works in a challenging legal environment. Many of Thailand’s NGOs are unregistered or focused on other issues, but Ms. Polkla saw a need and worked to fill it. Her co-founder came from a background of working for communities within India, specifically combatting child labor. Ms. Polka worked as a lawyer in Thailand providing freelance legal aid whenever possible. The two met in Hong Kong and connected over a feeling that more could be done for the Thai people. They returned to Bangkok and began providing legal aid in order to empower communities.
Without a parent organization it proved difficult to provide legal aid, so Ms. Polkla returned to Hong Kong to intern with the Asian Human Rights Commission. She worked in Hong Kong for three years before returning to Bangkok with what felt like a manageable budget and plan. Together Ms. Polka and her partner began working with small environmental cases based on community rights law. According to Thai law people who live in the same area have a right to have a say in the use of national resources. They have the right to ask for government support and to decide and protect their community resources.
This legislation remains hazy, as there are no specifications in the law about the parameters of what community resources are, nor is there a given definition of what constitutes a community. Five families who live in the same neighborhood can be considered a community, but so can the entire Mekong River Basin. Legal identity is already complicated, involving layers within villages. This means community law can protect as large or small an area as a problem requires.
It is this legislation that the CRC is founded on and utilizes to stand up for the Thai people. They started with two to three cases in 2010, but now they work with over 100 cases. As with many other parts of their work, their average caseload can be complicated to nail down. The discretion of the judge is employed to determine filing status, and sometimes judges require the CRC to file multiple cases for individuals—even when filing under the community protection laws. In this way, a recent CRC case turned from filing a single case into nearly 20 cases. The judge claimed that as the CRC was filing for compensation for each individual involved the cases required individual case filings. The amount of work for the CRC skyrocketed.
In the past six years the CRC has worked with over 20 communities (note: not cases). The communities are reached through networking, NGO recommendations, and general word of mouth. If the CRC feels they will be able help through litigation they introduce themselves and offer their services free of charge. Ms. Polkla, who continues to serve on the NHRC subcommittee, rejects the standard view of legal aid in Thailand, that is, if you lose a case it’s over.
Community law cases tend to focus on government development projects that affect local communities. Mining (coal, potassium, etc.), digging canals, arranging water supplies for industrial areas, and other large projects often pit development against environmental and community safety. For example, a major government development project in a southern seaport will affect surrounding communities in a variety of ways—including the loss of biodiversity.
“We try to use every law that we can use. For every project it seems like we have to know everything.”
Pushing back against this kind of project is no small endeavor. The CRC works to push back with whatever means they can to protect the communities they serve. Far too often protecting a community is retroactive, with the CRC trying to win compensation for the things communities have already lost or suffered. In a best-case scenario they can also stop or slow the development of projects that will prove harmful or reckless.
“I can say that most of our cases are [challenging]. It’s not because we try to find a challenge, or try to [find] a strange case, but in most of the cases that come to us it’s very hard to identify what law we can use.”
For example, their first case involved limestone mines in southern Thailand. The mines were complete and had been operating for years, but as the company’s license for using the land neared expiration the rate and methods employed became extreme. The company was in the process of renewing their contract when CRC stepped in.
There were 365 families in the nearby village, and all 365 houses had been damaged from the mines. The shaking ground and explosions had caused structural damage to every building in the village, and a fine sheen of dust covered everything. The CRC also discovered the local people had suffered psychological damage as a result of explosions wracking through the village. The noise had gone on for the final three years of a 10-year mining license, and the community was desperate to avoid renewal.
Winning compensation for structural damage was simple enough, but it proved much more difficult to receive compensation for the pain and suffering that wasn’t visible to the naked eye. In Thailand there was neither law nor legal precedent that allowed for psychological compensation. Nevertheless the CRC asked the judge for such compensation based on the international legal standard that people have a right to live in a peaceful environment.
“We used these words, because this is international law.”
The judge denied the request. Undaunted, Ms. Polkla and her team filed an appeal. Being traumatized by explosive mining, they argued, took away from the right to live in a peaceful environment. In appellate court they won a victory, psychological compensation of 900USD per person. Disappointed at the minimal sum for three years of suffering the CRC took their case before the Supreme Court. They argued that Thailand already has low standards for safe noise levels (15dB) compared to other countries (standard 10dB) and that to exceed Thailand’s already low standards surely established a problem. They lost the appeal for an increased sum, but each member of the community received 900USD, and legal precedent for psychological compensation was set.
After four years of working on the case, setting a precedent for such compensation was counted as a major win. In June of 2015 representatives from the CRC presented the case to the International Network for Economic, Social & Cultural Rights and the UN community.
Often, as in the above case, the legal challenges are not found only in the law, but also in the mindset of the judge. Often the CRC has their cases dropped in lower level and administrative courts, forcing them to push many cases through appeal to the Supreme Court before having them accepted.
“We are law makers, we are not law users. If you think that you are a law maker then you can change the system, and you can change society.”
A huge part of what CRC works on is setting precedent that things can be changed. It’s not easy to convince people to understand, or to even participate in these cases. Recently they worked a difficult case involving the construction of the Xayaburi Dam in Laos that was under the umbrella of a Thai construction company. The goal was to stop construction before it began, but preventative filing is all but impossible in Thailand. Claiming that EGAT, the electricity purchaser on the project, had not followed PNPCA standards, the CRC took a chance and filed the case. They lost.
When you lose a case a community can suffer, and it takes time and effort to convince people that their rights are worth fighting for.
Currently a staff of barely more than ten spearheads the time, effort, and legal aid that the CRC provides. They struggle with finances, having failed to break even since their original grant of 10,000USD in 2010. Both Ms. Polkla and her partner direct their own salaries back into the organization. Their dedicated staff of lawyers sometimes takes a pay cut of more than fifty percent in order to come onboard.
The Thai government allows, but does not directly encourage non-profit work. To register as an NGO in Thailand requires between 200,000 to 500,000 baht as a starting fund. Without legitimate registration it can be hard to find donors, but with it you are openly available to the government.
Changing government regimes in Thailand has affected NGOs in an indirect manner. For international organizations it has become more difficult to host foreigners, especially to get them visas. Instead of granting year long visas foreigners must now renew their visas every 90 days by leaving and reentering the country. In addition, under the newest regime, funds that were previously allotted to NGOs in the public health sector have become restricted, taxed, and heavily monitored.
The use of military power to keep people quiet is also not unheard of, and is an impact of a military regime that has been felt by the CRC. During research for one case Ms. Polkla was restricted from meeting with her clients unless she allowed a representative from the military to be present. They were forced to conduct the meeting with military supervision, and to meet after dark in order to speak privately.
“We will work in the same way. We cannot stop. [We must] just keep going.”
Despite financial and political challenges, the CRC continues to work tirelessly for the communities of Thailand they aim to protect. If an organization only focused on litigation without utilizing the appeal process, they would not succeed, but the CRC works tirelessly to set new legal precedents and be a catalyst for change. As Ms. Polkla recounts over now empty mugs of tea, the people of Thailand deserve to be availed of their rights, even when every day presents a new challenge.
(Author: Ida Knox)
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