By: Sanitsuda Ekachai

Date: February 10th 2016

Source: Bangkok Post

How much is one’s way of life worth? For indigenous forest dweller No-ae Mimee, it is very cheap indeed. In 2011, his bamboo house and rice barn deep in the Kaeng Krachan jungle were burned to the ground. He was then violently forced by forest officials to leave his ancestral home in the highlands to live in a resettlement downstream, with no land to till. 

He was not alone. More than 20 families of indigenous Karen forest dwellers also suffered the same violence. But he was alone in taking his case to court to seek justice. “Others were afraid,” he said in a soft-spoken voice to me in Karen through a translator. 

"I was afraid, too" he admitted. A local politician and outspoken advocate of Karen forest dwellers had just been shot to death in a murder case that involved the then park chief Chaiwat Limlikhit-aksorn, who led the violent forest crackdown. But the 55-year-old Karen man said he felt the need to do something to protect the ancestral rights of Karen forest dwellers.

That was four years ago. On Tuesday, the ruling was finally announced. In return for his shattered life after being uprooted and reduced to being homeless and landless, and now depending on relatives for food and shelter  --- no more freedom, no more dignity --- the court awarded him 10,000 baht in compensation.

I repeat: 10,000 baht. As I read the verdict, it suddenly occurred to me that the ongoing debate over the lack of human and community rights clauses in the draft charter is probably a useless exercise.

Civic and rights groups want those rights to be enshrined as in the 1997 and 2007 charters so people and communities can use their constitutional rights to seek legal justice. To tackle nationwide land rights conflicts, they also want the draft to honour the land and community rights of traditional communities that exist before their areas are declared national forests, as did the two previous charters.

But as shown in No-ae’s court case and many other land rights conflicts, the country's highest law is of little use when the organic laws which violate human dignity and community rights are still at work, and strictly upheld by the judiciary.

The 2007 charter tried to fix this by stating that constitutional rights must prevail. Yet, forestry authorities continue to sideline these rights with impunity by using the draconian forestry laws like they did before; violent crackdowns on traditional communities continue unabated.

Despite the forest dwellers' constitutional rights, Mr Chaiwat, Kaeng Krachan national park chief at the time, led a group of troops and forest rangers to the deepest part of Kaeng Krachan forest called Jai Paendin (heart of the land) to evict the Karen forest dwellers by torching their bamboo houses, their belongings and rice barns before taking off with footage to show off their successful effort to "save the forests from encroachers" on national television.

That was when the Kaeng Krachan forest dwellers' legal battle began. The Karen argue they are traditional communities protected by the constitution, not forest encroachers, and their traditional rotation farming system is ecological — a claim backed by many studies worldwide.

The park chief insisted the Karen not only destroyed the forest and violated the National Park Act, they were also illegal Myanmar migrants, supporters of the Karen insurgency group, and drug traffickers. He initially denied the torching, which was later revealed in TV news footage and photos taken by forestry officials themselves.

The drug and insurgency allegations turned out to be false. When No-ae was arrested at the scene, he was only charged with possessing some rudimentary guns. The court let him go, saying it was understandable for forest people to have such items.

With support from the Lawyers Council of Thailand, No-ae decided to take his case to the Civil Court to demand compensation for rights violations, and to set a legal precedent to ensure the protection of other Karen natives.

I still vividly remember the day he went to Civil Court, walking barefoot, wearing a blue loincloth, with his long hair tied up in a bun covered by a red turban, his lips reddened and teeth blackened from betel-nut chewing. People could not take their eyes off him.

No-ae could not speak Thai, so his cousin Billy Rakchongcharoen served as his translator. Billy also represented other evicted Kaeng Krachan Karen in filing a group lawsuit against the violent crackdown led by Mr Chaiwat.

Many things happened since then. Billy was arrested by Mr Chaiwat in 2014 for illegally possessing wild honey. Mr Chaiwat insisted he had already released Billy who mysteriously disappeared, never to be seen again. The court dismissed the murder case against Mr Chaiwat because of a lack of hard evidence. Meanwhile, the Karen forest dwellers under the forced resettlement scheme were left landless and near starvation.

As No-ae wilted from stress and illness, his civil suit was sent to the Administrative Court, which changed the legal game. According to his lawyer Thanu Aekchote, the Administrative Court’s letter requesting No-ae appear to defend his case against Mr Chaiwat again never reached his forest home. His legal team did not receive notification either. Not having a rebuttal was probably the reason the ruling relied heavily on the accounts of state authorities.

In the ruling, No-ae is acknowledged as an indigenous forest dweller, but not his right over the land he tilled. Without his lawyers' rebuttal to show that the Karens' farm plots are normally far from their villages, and that they use many plots in their farming cycles, the court ruled that No-ae violated the National Park Act because the plot was newly cleared, not part of a state resettlement programme, and not traditional land because there is no traditional community nearby. Consequently, the Department of National Parks, Wildlife and Plant Conservation has the legal authority to stop the encroachment.

Dismantling the shack still left materials for which people could encroach in the forest, so burning them down was a proper measure, the court ruled.

As to the claim that the crackdown violates the International Convention on the Elimination of All Forms of Racial Discrimination ratified by Thailand, the court ruled that the convention was not effective here without a local organic law. Even so, the forest eviction is not racist because it did not target a particular race, said the court.

As to the claim that the crackdown violated the Aug 3, 2010 cabinet resolution, the court ruled that the cabinet resolution protects the way of life of Karen natives in traditional communities, but it does not cover their clearing of new plots of land.

No-ae demanded total compensation of of 2,622,500 baht from the Department of National Parks, Wildlife and Plant Conservation. Apart from his house, rice grains, farm tools and kitchen utensils, No-ae said he lost several ancestral heirlooms when the officials set fire to his home. They included a traditional Karen sword, silver necklace and earrings, and three sets of hand-woven Karen costumes his late mother made for him -- now lost forever -- and cash savings of 20,000 baht from selling herbs to townspeople.

The compensation requested was also to cover the suffering inflicted by the forced resettlement scheme which also violates forest dwellers’ human dignity, and the reputational damage to Mr Chaiwat and other Karen forest dwellers being labelled as illegal migrants, forest encroachers, insurgents and drug traffickers.

The court ruled there was evidence to back No-ae’s claims for his lost property, but awarded him only 10,000 baht as compensation.

As to the allegation of defamation, Mr Chaiwat committed his actions on a personal basis so the Department of National Parks, Wildlife and Plant Conservation should not be held liable for compensation.

Mr Thanu said his legal team will appeal the ruling. But I foresee another uphill legal battle ahead. Forest dwellers not only face draconian forestry laws, but also negative stereotypes as forest destroyers and a lack of understanding of how the farm rotation system works.

How then to better protect them? The charter drafters believe it can be done by making it a duty of officialdom to protect people’s human dignity, community and traditional rights. Wake up! When state authorities are the main perpetrators of human rights abuses, strengthening them will only worsen the problem.

As the high-minded debates on the draft charter continue, life for the poor and powerless remain as cheap as ever. Just ask No-ae. Too bad he no longer has his cousin Billy to translate for him now.

Sanitsuda Ekachai is former editorial pages editor, Bangkok Post.

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Photo source: Michael Cory via Flickr/Creative Commons (CC By-NC-ND 2.0). Photo: © Michael Cory