http://www.bangkokpost.com/Perspective/01Jun2008_pers001.php

Open Borders to Human Rights

Burmese migrant workers who survived tragic neglect from employment brokers are still awaiting word on their status in the Thai legal system and whether they are entitled to protections provided for by UN conventions, writes SUPARA JANCHITFAH

For more than a month Pae (not her real name) lived fearfully and without hope in a detention centre in Ranong province, immersed in an unforgettable nightmare. She was among 67 Burmese workers who survived a journey from Ranong to Phuket on April 9 in the back of a cold-storage truck. 54 of the 121 undocumented Burmese migrants suffocated in the truck.

Pae says that every day the friends and loved ones who lost their lives reappear before her eyes. She and other female survivors complained of seeing ghosts, and their screams could be heard throughout the detention centre. May 19 was the day Pae dared to hope again, and her hope was to go back to her homeland.

At noon that day she was at the immigration office in Ranong province, not knowing what her destiny would be. The only thing she and 55 more survivors could do was to wait. Ten Burmese workers who had been on the truck - six adults and four children- are being held as witnesses in court proceedings in Ranong against the people who smuggled them into Thailand, and one was reportedly released by police.

At the immigration office, some Burmese authorities expressed their dissatisfaction with a Memorandum of Repatriation on Myanmar Migrant Workers Survivors which was drawn up and agreed upon by the governors of Ranong and Kawthoung provinces on May 13.

The Burmese officials disagreed with item 3 in the memorandum, which states that "the Myanmar government certifies that, once it receives those survivors back in Myanmar, it will not prosecute them under any circumstances and will provide protection and assistance in accordance with Human Right Base (basic principles of human rights)."

The negotiations came to an end when officials from the United Nations, Thailand and Burma agreed to amend a small part of item 3 to read that the "Myanmar government will provide protection and assistance in accordance with the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the United Nations Convention against Transnational Organised Crime."

After long hours of negotiation, the agreement for repatriation of the 56 migrant workers was finally accomplished at about 2.30 pm. When they arrived on Burmese soil about 4 pm some survivors were questioned by the Burmese army. The atmosphere was tense until a ranking officer ordered an end to the questioning.

Later, a man whose wife was among those who died prematurely said it had been a big mistake to come to Thailand. Teh (not his real name) explained that he and his wife were farmers from Tavoy, and that this was their first time to enter Thailand. They met a Mon (ethnic Burmese) broker who persuaded them to agree to pay a 708,000 kyat (approximately 20,800 baht) commission fee which would be deducted from their salaries when they got work at a construction site in Phuket province.

They entered Thailand on April 8 and stayed that night at a warehouse, before boarding the truck the next day.

Teh is emotionally devastated from the horrific conditions in which he watched his wife suffocate. The physical suffering from coming near to suffocation himself was also great - he still has chest pains and difficulty breathing. He also has bites on his leg from a victim convulsed in the struggle to take his last breath.

Pae has wounds on her fingers from desperately banging on the sides of the container truck to try to alert the driver of their dire predicament. She finally collapsed, and awoke near a pile of dead bodies.

Until May 19, the surviving undocumented workers could only guess what would happen to them. 14 of them are under 18 years of age, the youngest is only 12. 46 adults were charged with illegally entering Thailand. Having no money to pay their fine of 2,000 baht, the rest were jailed for 10 days, after which they were transferred to the immigration office.

They know quite little about their "human rights" - it's almost as if there were no such word in the Burmese language. It was only after coming into contact with Thai lawyers that they learned of such concepts.

The lawyers asked them questions such as why and how they came to Thailand, who persuaded them to come, and so on. Then asked the survivors if any would like to file a complaint.

"Many just wanted to go home, but some were quite hesitant due to their nightmarish experience and fears over illegally entering Thai soil," said lawyer Thanu Ekchote, from the Law Society of Thailand (LST).

The LST negotiated a deal with the truck owner's insurance company to pay 35,000 baht in compensation to relatives of each of the deceased and 65,000 baht to each survivor when the case is closed.

However, it's not clear which if any of the items in the memorandum of repatriation made between the two countries will be implemented, and most workers do not even know if they are eligible to get compensation.

What's more, they have no idea that the incident has been discussed so widely in Thai society, and they know nothing of the debate that is raging over this case in legal, law enforcement and government circles throughout Thailand.

The Issue is Exploitation

The police and others maintain that there was no organised human trafficking ring behind this tragedy, and since migrants were not lured into the country, but came willingly, they were not trafficking victims at all.

Thai labour officials say that since they had not yet started working, the Ministry of Labour has no responsibility.

The investigation of the lawyers from LST has revealed that 120 workers came from many ethnic groups in Burma - among them Burmese, Mon and Karen. Some had work permits issued in Phuket, but mostly they were new faces to Thailand. Their transportation and working arrangements were made by both Thai and Burmese brokers.

According to their testimony, most of them knew that they would be heading for Phuket. Many had already paid the commission charge, while others like Teh arranged to have the fee deducted from future earnings. Along the way, they were handled by many local "mafia" figures.

Chulalongkorn University law lecturer Prof Vithit Muntabhorn said that discussion and debate of this case is good, as it would help prevent such incidents from happening in the future and also give immigration officials a reference point.

However, the professor proposed that we must assume that the affected people are indeed victims, as they had been exploited every step of the way.

He also said that if they are classified as such it would lead to social welfare processes to regulate the issue. However, there must first be a clear signal from the authorities that these people are victims.

"The case should be transferred from the immigration office to other concerned agencies, for example the Ministry of Social Welfare," he added.

Prof Vithit suggested that Thailand already has many laws in place that apply to this case. These laws do not state that only Thai people are eligible for protection by the authorities.

"The laws cover everybody on Thai soil," he said, adding that Thailand is a signatory country of the United Nations Convention against Transnational Organised Crime, which entered into force on September 29, 2003, and which Thailand is expected to ratify soon. "Thailand will have to follow the international conventions, thus we must interpret the law positively for the affected people."

Prof Vithit said one must consider whether the victim has been threatened or force has been used, or if there have been other forms of coercion.

"They were transferred by a third party, and were exploited, regardless of whether they were willing or not. They became slaves."

He cited Article 5 of the 1997 Thai law, Measures in Prevention and Suppression of Trafficking in Women and Children Act, which states that "with or without consent of such woman or child, such act (transporting) is an offense under the Penal Code.

"The were detained, abducted and handed over to death or injury. If we consider the facts around the incident, in which they were exploited by others, it can be assumed that they are victims," said Prof Vithit.

As for the issue of whether they had given their consent to be placed in such a circumstance, he argued that there is no need for this discussion, which stems from a misunderstanding that a victim must be forced. "Forget if they are willing or not. What we must consider is if they have been exploited," he insisted.

He went on to say that there should not be only one organisation to define whether or not a person is a victim of trafficking. Rather, all concerned agencies should participate in considering the issue.

New laws Thailand is likely to pass would consider victims of trafficking and smuggling, concluded Prof Vithit, as do UN conventions which Thailand has signed but not yet ratified.

According to the United Nations' definition, trafficking in persons covers the recruitment, transportation, transfer, harbouring or receipt of persons by different means, be it through threats, use of force, coercion, abuse of power, or promise of future benefits.

Consent is irrelevant when money changes hands for the purpose of exploitation.

Trafficking or Smuggling?

Many police and security officials continue to insist that the Ranong tragedy is not a case of human trafficking because the workers had not been "lured or forced" to come to Thailand. In addition, they say, the workers were "on the way, without a destination."

Pol Lt-Gen Chatchawal Suksomjit said of the initial stages of the investigation: "The findings may run counter to general sentiment and reports which labelled this as a case of human trafficking. But there is a difference between human smuggling and trafficking,"

According to the police, human trafficking must involve smuggling of people with the specific objective of employing them in slave-like conditions and jobs, such as forced prostitution. The smuggling of people is a crime of lesser degree, with less harsh penalties.

Chartchai Bangchod of the National Security Council said that he is not at all sure if these people are victims.

"If the migrant workers select to use this method (to get in the country), we would not be able to implement the immigration laws. Everyone would use this mechanism to claim that they are victims. We should use a clear law to classify if they are victims or not," he said.

Wasan Sathorn, the director of Office of Foreign Workers Administration, Ministry of Labour, pointed out that each year there are millions of migrant workers who cross Thailand's borders. "We have to admit that every law limits people's rights," he added.

Wasan said people interpret the law differently, and remarked that his agency has only the duty of issuing work permits. "We need workers that enter the country legally, and we must proceed to document it when we find those who have entered illegally."

Only One Status

National Human Rights (NHR) Commissioner Sunee Chaiyaros expressed the NHRC's concerns about the different interpretation of the law and the status of the job seekers. She said that when the police consider such a case as this as smuggling and illegal entry into the country, it enables them to speed up deportation. She thinks the survivors should be allowed to stay and claim compensation.

She also expressed the hope that Thailand would learn from this tragic mishap. "The incident could have been avoided if we had learned past mistakes, such as the death of 39 fishermen from Praphasnavy fishing trawlers in Samut Sakhon ," she said (see related story). She urged a concerted effort to find measures to prevent such tragedy in the future.

Dr Sripapa Petchmeesri, the director of the Human Rights Study Programme at Mahidol University, said that the people who crossed the borders from our neighbouring countries, whether legally or illegally, have only one status - as "human beings".

She cited statistics which reveal that at least 14 times in three years, tragedies involving illegal workers in transit have taken the lives of at least 106 people and injured 144, with many disappeared.

Dr Sripapa observed that the issue of migrant workers cannot be separated from the political, economic and social contexts within our neighbouring countries.

"For example, Cyclone Nargis pushed more and more people to cross the border in order to escape the calamity and associated predicaments," she said, and urged people in the justice system to consider these contexts in forming a comprehensive policy.

She remarked that people who cross the borders, especially from Burma, commonly fall prey to organised crime rings. She asked the Association of Southeast Asian Nations (Asean) to take a forceful role in protecting migrant workers.

"The problem cannot be tackled by only one country. Cooperation from all Asean members is needed.

"We allow investment and capital to flow freely, but not labour," continued Dr Sripapa. "We need to take a more comprehensive approach to this problem."