February 24, 2010

II. Provincial Decrees—Controls on Migrant Workers

The overwhelming emphasis on presumed national security considerations in Thai government policy on migrant workers is also demonstrated by draconian decrees restricting migrants’ rights in five provinces (Phang Nga, Phuket, Ranong, Rayong, and Surat Thani).[49] All five provinces host significant numbers of migrant workers. Anusit Kunnagorn, a representative of the National Security Council (NSC), testified to the National Human Rights Commission (NHRC) that the NSC and Ministry of Defense believed it necessary to extend these decrees to all the other provinces because of problems with the existing migrant registration system.[50]

Three of the five provincial decrees cite concerns for “national security,” “security of society,” or “safety of life and assets” as a rationale for the measures, while the Rayong decree declares that certain groups of migrants “engage in behavior that make them a danger to society or will cause harm to public order and peace, and the lives and property of the citizenry.” The provincial decrees require employers to closely monitor and control their migrant workers. Some make employers financially responsible for any damages caused by the migrant workers they have registered, creating an incentive for employers to confine workers to their workplace. Others decree that failure to control migrant workers will result in the loss of hiring privileges for the employer and deportation of the workers concerned.

The provincial decrees violate basic rights due all persons under international law. Among the key provisions of the provincial decrees are restrictions on migrant worker gatherings and curfews and severe restrictions on migrants’ use of mobile phones, motorcycles, and cars.

Even in provinces without specific provincial decrees, Human Rights Watch found restrictions on rights to freedom of movement, association, assembly, and ownership of property, though such restrictions were not formally promulgated in government decrees.

In Samut Sakhon province in central Thailand, a major receiving area for migrant workers from Burma, the provincial governor, Wirayuth Euamampa, took steps short of a provincial decree. The governor’s October 26, 2007 letter to the provincial Department of Employment and to employers stressed the need to control migrant workers more closely. The letter posited that “Burmese migrants give rise to many problems, such as those involving public health, stateless children, as well as problems of crime and lawlessness.” Furthermore, the letter continued, “currently there is the spreading of migrants’ culture through festivals and other various events and this is not appropriate and should not be supported because it will give rise to the feeling of community belonging and ownership which could cause national security problems and are against the Government’s objective of allowing migrant workers to reside temporarily to work only.” The letter concluded by stating employers would be held accountable for ensuring proper, lawful behavior of their migrant employees, including through charges and court action if needed.[51]

A backlash from migrant worker representatives and NGOs criticizing Governor Wirayuth of racial bias and lack of cultural sensitivity[52] compelled him to issue a clarifying letter on November 28, 2007. This letter informed employers that they could let migrant employees arrange cultural activities as long as they did not jeopardize Thai national security or have a negative impact on Thai diplomatic relations with other countries—essentially banning migrants’ political protests against their home governments.[53] The NHRC has called for the provincial government of Samut Sakhon to revoke these two letters, but it has failed to do so.[54]

Migrant workers residing in provinces with these decrees told Human Rights Watch that since the promulgation of the decrees, police harassment and extortion has increased, particularly in connection with the seizure of migrants’ mobile phones and motorcycles. Besides the personal inconvenience, migrants who are denied mobile phones face greater difficulties calling for rapid assistance in emergencies. NGOs and migrant worker groups say that some migrant workers, such as live-in domestic workers, face higher risks of abuse because of inability to own and use a mobile phone.[55]

Deprived of motorized transport, migrants stated they find it more difficult to escape violence and access health care in emergencies. They have fewer options for conducting daily tasks like purchasing food at the market, sending children to migrant learning centers, or taking classes after work. For those working in remote agricultural work settings the restrictions are particularly onerous.[56]

Restrictions on Freedom of Association and Assembly

Various restrictions limit the basic rights of migrant workers in violation of international law. In Phang Nga, Phuket, and Ranong, a gathering of five or more migrant workers requires advance written permission from the government district chief. In Rayong and Surat Thani, any migrant gathering is prohibited, unless it is cultural or religious.

However, in Surat Thani, even religious activities are shut down if they have any political characteristics. A Burmese migrant worker reported the severe reaction of local police from the Muang district station in Surat Thani province when a local Burmese migrant worker association organized a religious merit-making event at a Buddhist temple on June 19, 2008, to honor the 63rd birthday of detained Burmese democracy leader Aung San Suu Kyi.[57] With the support of the temple’s abbot, approximately 150 migrants came offering gifts to Thai monks resident at the temple. Some migrants wore shirts or other pieces of clothing with Suu Kyi’s visage and the migrants held a short procession inside the temple grounds holding several signs and two large photos of Suu Kyi.

Following a tip-off that the police were coming, the migrants stopped the procession and everyone retreated inside the templeand waited. Within minutes, the police district commander, accompanied by 12 policemen in eight vehicles, arrived and demanded to know where the protest was taking place. A test of wills between the abbot and the police commander ensued: the commander’s insistence that a protest had taken place was met with denials, while the abbot refused permission for the police to enter the wiharn[58] to arrest migrants. The police finally agreed that they would only check a number of migrants selected by the abbot who volunteered to come out of the wiharn but then seized the migrant worker ID cards of five migrants for further inspection at the police station.[59]

The association later surreptitiously distributed copies of a video of the procession taken by migrants. The migrant worker told Human Rights Watch:

People kept asking me “Wow did you do that?” It is so hard to do any sort of group activity like that because the police are always looking out. I know that our association will have a problem with the police in the future.... They have asked many questions about the association because they worry we are going to organize the migrants...They always look at these issues from the security view.[60]

A PowerPoint presentation created by provincial Ranong police identifies political activities by migrant workers that the police are seeking to prevent. A video of a protest held by Burmese monks and exiles in Mae Sot on May 24, 2009, was displayed in a slide entitled “Guarding against Burmese Buddhist monks entering to perform political activities as in Mae Sot district, Tak province, leading the Burmese people to demand the release of Aung San Suu Kyi.”[61]

Restrictions on Freedom of Expression

Whenever we are walking and talking on the street, if the police see us using the phone they will stop us and take it. If you want to talk to me about these kinds of cases, you will not be able to finish the interview today....It happens every day.
—U Win, a migrant worker from Burma in Surat Thani, August 27, 2008.

While migrants with money can easily secure a mobile phone and phone number in Thailand through a prepaid SIM card, their ability to use their phones is heavily restricted.

In Phang Nga and Ranong, decrees forbid migrants from using mobile phones and explicitly authorize government authorities to seize such phones on sight, while Phuket requires mobile phone usage to comply with an unspecified provincial “security policy.”[62] In Rayong and Surat Thani provinces, the provincial announcements use identical language stating that migrant workers are not permitted to use mobile phones because a mobile phone is not considered “a tool for work but instead is a tool that can convey information easily and quickly, which can impact national security.”[63]

According to migrants, both government officials and private citizens seize migrants’ mobile phones in these provinces. Even in remote villages, like the one in Phang Nga where Burmese migrant worker Soe Myo lives, the village chief has ordered migrants not to use phones. Soe Myo told Human Rights Watch, “I sneakily use it [mobile phone], I don’t let them know or see that I use phone, and when I walk on the street I turn off my phone and put it in my underwear.”[64] Soe Myo added that either the village chief or ordinary Thai villagers will confiscate his phone if they see it. U Ko Nai, from Burma, confirmed he also takes these precautions but on July 18, 2008, officers from the Highway Police Division stopped him on a road near his house in Kuraburi district. They extorted 2600 baht (roughly US$78)[65] and confiscated his mobile phone despite his pleas that he needed it for work. U Ko Nai said, “The next time I saw that policeman he smiled at me ... I saw that he carried my phone and used it.... It’s normal for the police, if they see a good phone they will take it.”[66]

Restrictions on Freedom of Movement

There are many dangers for workers who work at night. For example, when the workers meet Thai teenager gangs, they are robbed and beaten....The danger we face is invisible. If we were able to have mobile phones and motorcycles, we might manage to escape from the danger.[67]
U Win, migrant worker from Burma, Muang district, Surat Thani province

All five provinces with provincial decrees on migrants impose nighttime curfews restricting migrant workers to their workplaces or residences. The curfew start times vary from 8 p.m. to 10 p.m. All of the decrees state that migrant workers may not move within the province without express written permission from the provincial Department of Employment.

Under all the provincial decrees, migrants are prohibited from using motorcycles or cars. Thais are not allowed to let migrant workers drive their vehicles either. When migrant workers are caught with a motorcycle, the police are likely to make them pay a hefty bribe, lose their motorcycle, or both. Zaw Zaw, a registered migrant worker from Burma in the construction industry in Surat Thani described how local police at a checkpoint on June 11, 2008, first took 4500 baht from his wallet, and then confiscated his motorcycle.[68] In some cases, local authorities allow the use of motorcycles provided the migrant is prepared to pay a regular bribe. Kyaw Win, also from Burma, said where he lives in Surat Thani migrants must pay 500 baht a month to the nearest local police post or their motorcycle will be seized.[69]

In remote areas, such as rubber plantations, provincial restrictions on migrants’ use of phones and motorized transport can cause major difficulties in cases of medical emergencies, such as accidents, poisonous snake bites, pregnancy and birth, and severe illnesses. Purchasing food and other daily necessities are made more difficult and expensive by migrants’ inability to drive motorized vehicles.

Without the ability to communicate or move about by motorcycle, migrants are more vulnerable to common dangers such as assaults and extortion by criminal gangs and persons posing as police or other authorities.

Several other provinces, including Chiang Mai and Chumpon, considered issuing similar decrees but finally abandoned their plans in the face of intensifying opposition from human rights groups and the media. Yet restrictions similar to those in the provincial decrees, particularly against migrants using motorcycles and mobile phones, are enforced by local police in many places. For instance, in Surat Thani, a documented Burmese worker, Ko Shwe, told Human Rights Watch how two police arrested him around 11 a.m. one day in July 2007, searched him, found his mobile phone, and confiscated it. He said, “The police told me ‘We are allowing you to work in Thailand—not to be happy, and go around, like you are on a picnic.’”[70]

Article 41 of the Thai Constitution of 2007 provides all persons with the right to own property and the Vehicle Act B.E. 2522 (1979) contains specific provisions regarding non-nationals’ vehicle registration for registered migrant workers. Throughout the duration of the research for this report, vehicle registration was effectively denied to migrant workers.[71] But on December 13, 2009, an important step forward was taken when the Department of Land Transport issued a decision that allows registered migrant workers to apply for and receive ownership documents for a motorcycle.[72] However, vehicle ownership is still denied to undocumented migrants, and no final decision has been made on permitting migrant workers from Burma, Cambodia, and Laos to apply for and receive a driving license. Furthermore, restrictions on migrants using motor transport under the five provincial decrees have yet to be rescinded or altered.

Complications involved in ownership and registration of motorcycles put migrants seeking to own motorcycles at risk. Mi Mi, a migrant from Burma, said police jailed her husband for receiving stolen property when a Burmese broker working for a Thai policeman sold him the policeman’s motorcycle and then failed to give the money to the policeman. Mi Mi said that even though her husband knew nothing about the arrangements with the policeman, it was her husband and not the broker who was jailed for two years.[73]

In 2008 Thailand’s National Human Rights Commission ruled that the provincial decrees violate several core articles of the Thai Constitution of 2007.[74] The NHRC declared that the decrees contravene article 30, which provides “All persons shall be equal before the law and shall enjoy equal protection under it....Unjust discrimination against a person on grounds of difference in origin, race, language, sex, age, physical conditions or health, economic or social status....shall not be permitted.” The NHRC also determined that bans on use of mobile phones in the decrees violate article 36 of the Constitution where it is determined that “A person shall enjoy the liberty to communicate with one another by lawful means.” And it found that the curfews and restrictions on gatherings of more than five migrants are contrary to article 63 of the Constitution, which states: “A person shall enjoy the liberty of peaceful and unarmed assembly.”[75] However, the provincial governors and Ministry of Interior have so far ignored the NHRC’s ruling, which the NHRC lacks the legal authority to enforce.

[49] Memorandum from Nirand Kalayanmitr, Governor of Phuket Province, “Announcement of the Province of Phuket on Setting the System to Control Alien Workers,” (ประกาศจังหวัดภูเก็ตเรื่องการจัดระบบในการควบคุมแรงงานต่างด้าว), December 19, 2006; Memorandum from Vinai Buabradit, Governor of Phang Nga Province, “Announcement of the Province of Phang Nga on Determining the Administrative Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดพังงาเรื่องการกำหนดมาตรการเพื่อจัดระเบียบแรงงานต่างด้าวหลบหนีเข้าเมือง), June 9, 2007; Memorandum from Kanjanapa Keemun, Governor of Ranong Province, “Announcement of the Province of Ranong on Determining Measures for Specific Migrants,” (ประกาศจังหวัดระนองเรื่องกำหนดมาตรการจัดระเบียบคนต่างด้าวบางจำพวก), February 23, 2007, and Memorandum from Polwat Chayanuwat, Governor of Rayong Province, “Announcement of the Province of Rayong on Determining the Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดระยองเรื่องการกำหนดมาตรการควบคุมแรงงานต่างด้าวหลบหนีเข้าเมือง), February 16, 2007; and Memorandum “Announcement of the Province of Surat Thani on Determining the Measures to Control Illegal Alien Workers,” (ประกาศจังหวัดสุราษฎร์ธานีเรื่องการกำหนดมาตรการควบคุมแรงงานต่างด้าว), January 2007.

[50] National Human Rights Commission of Thailand, “Human Rights: The Case of the Provinces Issuing Provincial Decrees that Violate the Rights of Migrant Workers” (สิทธิแรงงาน กรณีจังหวัดออกประกาศจังหวัดโดยละเมิดสิทธิมนุษยชนของแรงงานข้ามชาติ), case 404/2551. In that NHRC hearing, representatives from Rayong province also indicated Royal Thai Army region 4 and ISOC region 4 also issued order 2/2550 to control alien persons and communities in Ranong and Chumpon on February 19, 2007, and their representatives were involved in developing procedures for implementation in Ranong. Those representatives allegedly expressed support for extending the provincial decrees to all the remaining provinces in the south of Thailand, and identified people smuggling/human trafficking and illegal money remittances as the practices that threatened Thai national security and required a ban on mobile phone use by migrants.

[51] Letter/memorandum no. SK 0017.2/Wor 3634, “Control of Alien Labor,” from Wirayuth Euamampa, governor, Samut Sakhon province, to the provincial office of Department of Employment and all employers in Samut Sakhon, October 26, 2007.

[52] Pennapa Hongthong, “Governor accused of race bias”, The Nation, November 7, 2007.

[53] Letter/memorandum no. SK 0017.2/Wor 13723, “Control of Alien Labor (Additional)”, from Wirayuth Euamampa, governor, Samut Sakhon province, to the provincial office of Department of Employment and all employers in Samut Sakhon, November 28, 2007.

[54] National Human Rights Commission of Thailand, “Human Rights: The Case of the Provinces Issuing Provincial Decrees that Violate the Rights of Migrant Workers.”

[55] Human Rights Watch discussions with NGO representatives assisting migrants in Phang Nga (MAP), Ranong (World Vision Federation of Thailand), and Surat Thani (Raks Thai Foundation), December 2008, January and March 2009.

[56] Grassroots Human Rights Education and Development (GHRE), “Specific Cases against Migrants Resulting from The New Decree in Phang Nga Province,” revised July 24, 2007, www.ghre.org (accessed October 31, 2007); Asian Migrant Centre (AMC), “AMC statement against Implementation of Provincial Decrees”, August 30, 2007, www.asian-migrants.org (accessed August 15, 2008).

[57] Human Rights Watch interview in Bangkok with Kyaw Win, migrant worker from Burma living in Surat Thani, January 29, 2009.

[58] The wiharn is the area of the Buddhist temple housing the primary Buddha image in the temple complex.

[59] The next day, when a representative of the migrants went to retrieve the ID cards of the five migrant workers at the Muang district Surat Thani police station, he was required to purchase and hand over two bottles of Regency Brandy as a bribe to the officers to get the ID cards returned. Human Rights Watch interview in Bangkok with Kyaw Lwin, migrant worker from Burma living in Surat Thani, January 29, 2009.

[60] Human Rights Watch interview with Kyaw Lwin, January 29, 2009, Bangkok.

[61] “The Ranong Phu Torn Police Welcome the Delegation Visiting Us” (ตำรวจภูธรจังหวัดระนองยินดีต้อนรับคณะผู้มาเยือนเรา), PowerPoint presentation by police at a meeting at the Ranong provincial police headquarters, June 18, 2009, attended by a researcher from Human Rights Watch.

[62] Both Phang Nga and Phuket provinces provide exemptions to the mobile phone ban if the employer of the migrant workers draws up a written list of migrant workers (with their phone numbers) that he authorizes to use phones, and submits this to the district officer or other appropriate local government official.

[63] Sutthida Malikaew, “Restrictions Make Life Tough on Migrant Workers”, Inter Press Service News Agency,August 17, 2007, http://ipsnews.net/print.asp?idnews=38929 (accessed on July 1, 2009).

[64] Human Rights Watch interview with Soe Myo, migrant worker from Burma, Thai Muang district, Phang Nga province, August 12, 2008.

[65] As of October 2009, the US dollar was worth 33 Thai baht.

[66] Human Rights Watch interview with U Ko Nai, migrant worker from Burma, Kuraburi district, Phang Nga province, August 13, 2008.

[67] Human Rights Watch interview with U Win, migrant worker from Burma, Muang district, Surat Thani province, August 27, 2008.

[68] Human Rights Watch interview with Zaw Zaw, migrant worker from Burma, Muang district, Surat Thani province, August 24, 2008.

[69] Human Rights Watch interview with Kyaw Win, Aye Maung, and Zar Ni, ethnic Burman migrant workers from Burma, Mahachai district, Samut Sakhon province, August 18, 2008.

[70] Human Rights Watch interview with Ko Swe, Surat Thani province, August 26, 2008.

[71] For more information on the problems faced by migrants to register motorcycles, see Human Rights and Development Foundation (HRDF), “Migrants and Motorbikes: Unlawful Police Practices and Systematic Discrimination in Northern Thailand,” February 2009.

[72] Legal Office, Department of Land Transport, decision no. Kor Kor 0408/Wor 244, “Procedures for Registration of Vehicles of Aliens Who Have Entered the Country Unofficially,” October 13, 2009. Specifically, migrants must present Thai government-issued identity documents (such as their alien registration card and/or work permit) and documents showing their place of residence in Thailand (house registration documents or migrant worker history [Tor Ror 38/1] document).

[73] Human Rights Watch interview with Mi Mi, ethnic Tavoyan migrant worker from Burma, Mahachai district, Samut Sakhon province, August 19, 2008.

[74] National Human Rights Commission of Thailand, “Human Rights: The Case of the Provinces Issuing Provincial Decrees that Violate the Rights of Migrant Workers.”

[75] Constitution of the Kingdom of Thailand (2007), unofficial English translation by IFES and the US Embassy, Bangkok, www.ifes.org (accessed July 1, 2009).