LEGAL ISSUES ON BURMA JOURNAL  No. 10 - DECEMBER 2001
BURMA LAWYERS' COUNCIL


Burmese Migrant Workers in Thailand: Policy and Protection

Darunee Paisanpanichkul*

It is estimated that the overall number of Burmese migrants in Thailand is somewhere in between 800,000 and one million. Cross-border migration into Thailand has steadily increased in recent years. Since the 1960s, hundreds of thousands of Thais have gone to work abroad. Refugees from Burma, Laos and Cambodia have since filled this labour shortage in Thailand. However, many of them are undocumented, illegal workers and thus constitute the most vulnerable section of the work force. As illegal non-citizens, they are least protected by a national legal system. The Thai Cabinet recently announced a new policy on migrant workers.


Thai Policy on Migrant Workers from Burma

On 28 August 2001, the Cabinet under Prime Minister Thaksin Shinawatra promulgated a resolution allowing Thai companies to employ foreigners again. Included in the resolution are displaced people and illegal migrants from Burma, Laos and Cambodia, i.e. those who have at least registered for the permanent legal status of ‘Migrant Worker’. Over the past ten years, Thailand has promulgated various Cabinet resolutions on a management policy of migrant workers. This is seen as a developing vision of Thai government.

A Thai Cabinet resolution from September 1996 announced a policy for the registration of undocumented migrant workers.1 This included a directive to permit Burmese, Laotian and Cambodian workers to remain in Thailand as labourers in the authorized sectors, namely “agriculture, fisheries, fishery-related activities (cleaning seafood, and work at piers and shrimp farms), construction, mining, porter of goods in harbours, domestic work, salt fields, timber mills, brick making, production (fish sauce, shrimp paste, squid drying, filleting fish, tobacco and salty fish production, drying tapioca, storage of agricultural goods in silos) and other production activities as approved by the Ministry”. As a result of this, in Ranong province, Burmese labour currently comprises 70 percent of the area’s 143,000 fishermen, according to Thailand’s Department of Fisheries.

In 1998, Thai government policy on migrant workers changed drastically due to the economic crisis. In January 1998, Thailand’s unemployment rate was around 1.8 million. In an attempt to counter the crisis, the Cabinet announced plans to deport at least 300,000 undocumented migrant workers within a sixmonth period and then fill the vacancies with unskilled Thai workers. According to the Immigration Police Bureau Commissioner, by March 1998 a reported 70,000 undocumented workers had “voluntarily returned to Burma”.

On 2 March 1998, the Thai Minister of Labour issued a directive which announced that undocumented foreign workers in specific sectors would be repatriated by 1 May 1998 or face eight years imprisonment and fines up to 110,000 baht. The directive said those arrested on charges of illegally entering the country or violating the Immigration Act were liable to five years imprisonment and a fine of 500,000 baht, while those violating the Foreign Workers Work Act would be subjected to three years imprisonment and a fine of 60,000 baht. However, the directive allowed migrants to continue working in the fishing industry in 13 border provinces, and in other sectors such as transport, timber, textile, chemical, agriculture, commerce, and the service sector. The Minister also detailed plans to force the total one million Burmese workers to return to Burma by the end of 1999, as the Ministry would not renew work permits for registered workers this time. These somewhat conflicting measures forced migrant workers even further underground and made them more vulnerable to abuse by Thai employers and authorities. To date, Thailand has not fully implemented any of these policies, which remain unclear and confusing.2


Migration into Thailand

The five major Thai government bodies concerned with immigration are the Ministry of the Interior, the Ministry of Foreign Affairs, the Ministry of Labour, the National Security Council, and the Army. There is some overlapping between the activities of these bodies, usually caused by a lack of coordination. The Ministry of the Interior is the most important body regarding migration, because the Immigration Office falls under its jurisdiction.

Most migrants enter Thailand on a tourist visa which prohibits employment. For migrants with sponsorship from an established Thai organization, a nonimmigrant visa is available that allows a person to apply for a work permit. For migrants entering Thailand from neighbouring countries, e.g. Lao citizens,

Thai immigration authorities often issue a visa called a border pass. This pass allows migrants to stay in Thailand for one day (not overnight) and requires the migrants to remain in the vicinity of the point where they entered the country. It does not permit employment. Substantial gaps exist between the Thai immigration laws and what actually occurs in reality. Thai immigration laws include the Immigration Act of 1950 (amended in 1979 and 1992); the Alien Registration Acts of 1950, 1952 and 1954; the Nationality Act of 1965 (amended in 1992); the Alien Employment Act of 1978; the 1979 Law on the Categories of Work Not Permitted for Aliens; and the 1979 and 1985 Laws on Forms of Employment and Activities in Which Aliens Can Engage.

In principle, an illegal alien is a person not having Thai citizenship who enters the Kingdom of Thailand while violating section 12 of the Immigration Act of 1979. This section stipulates that “No alien of the following characteristics shall be allowed entry into the Kingdom:

(1) not in possession of passport or other passport substitute document and that which is still valid or in possession of passport or other passport substitute document, but visa has not been stamped or seen by the Thai Embassy or Consulate in foreign countries or from the Ministry of Foreign Affairs with the exception of the special case that no visa is required for certain category of alien;

(2) not in possession of a means of subsistence which normally entails for entering the Kingdom;

(3) entering the Kingdom for the purpose of being worker or seeking manual labour job without the use of special knowledge or technical skills or seeking other employment contravening the law governing the employment of alien;

(4) having unsound mind or afflicted with any one of the diseases prescribed in the Ministerial Regulations;

(5) have not been inoculated against small pox or vaccinated or complied with the medical requirements for prevention of communicable disease according to the law governing such disease and resisting the demand for medical examination by immigration medical officer;

(6) having been sentenced to imprisonment by the decision of Thai Court or by legal order the judgment of the court of foreign government with the exception of petty offense or offense committed by neckless or those offenses exempted in the Ministerial Regulations;

(7) having behaved in the manner that is believed to be detrimental to the society or cause disturbances to peace and security of the public or threat to national security or being fugitive wanted by a foreign government;

(8) having behaved in the manner that is believed to have engaged in prostitution, girl or child;

(9) being a penniless person or having no guarantee as prescribed by the Minister pursuant to section 14;

(10) being a person unauthorized to enter the Kingdom by the Minister pursuant to section 16;

(11) having been a person deported by Thai Government or foreign government or a person whose resident permit has been once revoked in the Kingdom or in foreign country or having been expelled by the competent officer at the expense of the Thai Government expect the special exemption granted by the Minister” [sic].

So, under section 12, illegal aliens will be repatriated to their country. However, the Thai government may use the exception under section 17 of the Immigration Act to allow temporary employment. Section 17 stipulates that under special circumstances, the Ministry, with permission from the Cabinet, may authorize entry into the Kingdom subject to any condition or exempt any alien from compliance with this Act.

Section 17 of the Immigration Act can be seen as a first flexible policy. It was promulgated by resolution of the Thai Cabinet on 17 March 1992. It allows migrant workers to work for two years in nine provinces. These provinces are Chiang Rai, Chiang Mai, Mae Hong Son, Tak, Kanchanaburi, Ratchaburi, Prachubkirikun, Chumporn, and Ranong. It also stipulates that the migrant workers have to apply for a work permit which costs 1,000 baht, and that they have to pay a 5,000 baht fee for a ‘repatriation-cost insurance’.

The result of implementing section 17, however, was non-successful because eventually only 706 foreign workers were registered. The possible reason for this was that the rate of bail was too high. Meantime, Thai companies continued to employ illegal workers while bribing the police. The influx of refugees expanded to central Thailand. The Thai private sector claimed that the government had expanded the restricted areas while decreasing the repatriationcost insurance.


Thai Cabinet Resolutions on Migrant Labour

The resolution of the Cabinet meeting of 25 June 1996 extended the period of flexible policy. Illegal migrant workers would be allowed to work for two years in 43 specified provinces and in 36 types of work. The Cabinet aimed to consider the influx of immigrants in new ways. At the same time it prohibited new entries. The resolution put more emphasis on the type of work and the approved area than on whether migrant workers had a legal status or not. Especially important was that the authorities needed the employers’ responsibility for the workers. Thai employers were required to register their undocumented migrant employees between September and November 1996. No new applicants were accepted during this period and registration was only available to those migrants who had entered Thailand before 25 June 1996. In order to register, employers had to follow a complicated three-phase process. First, all migrants had to pass a health check at the local hospital. Workers were either classified as ‘pass’, ‘requiring treatment’, or ‘fail’. Those falling within the last category would not be permitted to work, and under the new legislation would be required to leave the country. Second, a fee of one thousand baht had to be paid to the Immigration Office. Immigration officers recorded a detailed personal history of each migrant, and then the migrants would receive a ‘Temporary Residence Permit for Immigrations Awaiting Deportation’ (also known as a Taw Maw 69). Both the employer and the workers were required to report to the Immigration Office every three months. Third, a work permit had to be issued by the Department of Employment. An additional one thousand baht had to be paid for this work permit, after which the registration would be complete. Both the employer and the workers needed to extend this permit after one year. However, most employers preferred to pay bribes to local police rather than undergo the complicated procedure.3

The resolution following the Cabinet meetings of 28 April and 8 May 1998 reduced migrant employment to one year, but geographical areas were extended from 43 to 54 provinces (13 border provinces, 22 provinces with fishing industry areas, and 19 provinces lacking Thai labour). The fees for extension of registration and repatriation-cost insurance remained 1,000 baht, but the health check went up from 500 to 700 baht.

The resolution of the Cabinet meeting of 4 August 1999 again allowed for one- year employment, but this time geographical areas were limited to 37 provinces. The number of registrations was limited to 86,895 but after negotiations with Thai entrepreneurs this became 106,000. The fee for registration and repatriation-cost insurance was still 1,000 baht, but employees had to pay an additional 1,000 baht for a health insurance. The resolution of the Cabinet meeting of 29 August 2000 kept the provisions of the previous resolution in place, except for the number of registrations which was fixed at 106,684.

The resolution of the Cabinet meeting of 28 August 2001 allowed illegal migrant workers who entered Thailand before this date to stay, although they would have to register. The fee for repatriation-cost insurance remained the same, but an additional 900 baht would be required for a six-month work permit and 150 baht for an identity card. The health insurance fee went up to 1,200 baht. No restrictions were given regarding numbers of migrants, geographical areas and types of work. This resolution has since been widely criticized. Many Thai workers maintain that the government should not give employment away so easily.


Protection of Migrant Workers

Both Thai workers and migrant workers who have permanent legal status because of their registration, are protected under the 1997 Constitution of the Kingdom of Thailand and the Labour Protection Act of 1998. Chapter 8 of the Constitution recognizes that in criminal procedures, the rights of any person shall be protected. The main elements are to be found under sections 237, 238, 241, 242, and 244 to 246.

Section 237 stipulates that in a criminal case, it is not permitted to arrest and detain any person unless there is a court order or evidence that a person has committed an offence. The person who is arrested must be promptly informed of the charges and particulars of the arrest, and must be given the opportunity to inform relatives and friends. A person who is still being confined must be brought before a court within 48 hours, calculated from the time at which the person arrested was taken to the office of the Interrogation Officer. The court has to consider whether or not there is a lawful cause to detain the person arrested unless there are circumstances beyond control, or other necessary reasons as provided for by law. Arrest or detention warrants may be issued only when (a) there is reasonable evidence that the person has committed a crime which carries penalties prescribed by law, or (b) there is reasonable evidence that the person has committed a crime and there is reasonable cause to believe that this person will flee or meddle with evidence, or cause other dangers.

Section 238 says that in criminal cases, “searches of private property are not permitted unless there is a court order or a cause, provided by law, to search without the need for a court order”.

Section 241 says that in a criminal case, the accused or defendant has the right “to receive a fast, continuous and fair interrogation or hearing of the case”. At the interrogation stage, the accused has the right to have a lawyer or any other trusted person present to listen during the interview sessions. A distressed party or a defendant in a criminal case has the right to examine or obtain an extract of the statements given by him at the interrogation stage, or the documents accompanying the statements given by him after the public prosecutor has filed the case in court. If the public prosecutor has issued an absolute order not to institute legal proceedings, the distressed party, the accused, or persons with vested interests have the right to be informed of a summary of the evidence together with the opinions of the interrogation officer and the public prosecutor in the matter of the orders issued on the case.

Section 242 says that the accused or defendant in a criminal case has the right to receive assistance from the State, in the form of the provision of a lawyer. In case a detainee is unable to afford or find a lawyer, the State must provide one.

Sections 244 and 245 entitle witnesses and distressed parties in criminal cases to receive protection, appropriate treatment and whatever remuneration that is necessary and appropriate from the State.

Section 246 provides for compensation if the judgment in a criminal case states that the defendant has committed no offence. This person has the right to receive such compensation and expenses as may appropriate as well as the return of all the rights which had been lost as a result of the case.

At the same time workers are protected under the Labour Protection Act of 1998. The main elements include Working Hours (section 23), Rest Periods and Holidays (sections 24, 25 and 27 to 29), Leaves (sections 32 to 34), and Wages (sections 53 to 55 and 61 to 63).4 Interestingly, Thai law sees employment in three levels, namely ‘employee’, ‘boss’, and ‘employer’. In this context it is not entirely clear whether the ‘boss’ is a middleman or a foreman.

Section 23 of the Labour Protection Act stipulates that one working day must not exceed 8 hours. One week must not exceed 48 hours. If jobs are particularly dirty, difficult and dangerous (the so-called ‘3-D jobs’) the section stipulates that a working day must not exceed 7 hours and one working week must not exceed 42 hours.

Section 27 of the Labour Protection Act is about rest periods. Adequate rest of not less than one hour per day must be provided or at least after the employee has been working for not more than five consecutive hours. The boss and the employee may agree in advance that a rest period be less than one hour, but a working day must not have less than one hour of rest. The boss may not provide a rest period in case the employee performs work where the nature of the work requires it to be performed continuously. In such case the consent of the employee has to be obtained, or otherwise the work is emergency work (and has to be paid accordingly). Regarding overtime cases, if continued for not less than two hours of normal working hours, the boss must arrange [with the employer?] for the employee to have a rest period of not less than twenty minutes before the employee commences the overtime work.

Section 28 of the Labour Protection Act is governing holidays. One weekly holiday must be given, not less than one day per week. The interval between weekly holidays must not be less than six days. In case of work in hotels, transportation, forestry, agriculture, or other work as prescribed in ministerial regulations, the boss and the employee may agree in advance to accumulate the weekly holidays over a certain period and postpone them for taking as a longer holiday within the period of four consecutive weeks. In addition, traditional holidays (governed by section 29) must add up to not be less than thirteen days per year. This is inclusive of the National Labour Day as prescribed by the Minister in a notification. The boss shall consider fixing the traditional holidays from the government holidays for the year, religious or customary and traditional holidays of the locality. In case a boss is unable to provide holidays as prescribed in ministerial regulations, there must be agreement with the employee on another holiday in compensation, or the boss may pay the employee in lieu.

Sections 24 and 25 of the Labour Protection Act regulate overtime on working days and work on holidays. The boss is not allowed to order an employee to work overtime on a working day, unless the consent of the employee has been obtained on a case-by-case basis, or in such cases where the nature of the work requires the work to be performed continuously (e.g. if a break would cause damage to the work, or if it is emergency work, or other work as prescribed in ministerial regulations), the boss may order the employee to work overtime to such extent which is necessary. The boss is not allowed to order an employee to work on a holiday, except in cases as described above or in respect of the business of hotels, entertainment, transportation, food, medical facilities, or other business as prescribed in ministerial regulations. When combined, the amount of overtime and holiday working hours must not exceed the rate as prescribed in ministerial regulations (currently 36 hours per week).

Sections 32 to 34 of the Labour Protection Act regulate the various kinds of leave, such as leave for medical reasons. Section 32 stipulates that the employee must be enabled to take medical leave to the extent of actual illness. For medical leaves of three working days or more, the boss may ask the employee to provide an official medical certificate and an explanation. Days on which an employee is unable to work due to injury or illness arising from work, and maternity leave days under section 41 shall not be considered to be medical leave under section 32. Section 33 provides for leave in order to be sterilized, and section 34 regulates leave for essential errands. Sections 53 to 55 and 61 to 63 of the Labour Protection Act are governing wages. The law says that wages shall be in Thai currency only, at rates not less than those of minimum wages. The minimum wage rates shall apply to bosses and employees, regardless of the boss and employees’ nationality, religion or sex, “unless the employees are not protected under this law”. Section 61 regulates overtime pay. This must not be less than one and a half times the hourly rate on a working day according to the number of hours worked, or according to the quantity of work, or the results of the work performed. Section 62 is about holiday pay. Employees on daily wages shall be paid not less than one time the hourly wage rate per working day, of course in accordance with the number of hours worked, or according to the quantity of work. Regarding employees on monthly wages, a payment of not less than twice the hourly wage rate on a working day shall be paid in accordance with the number of hours worked, or according to the quantity of work. Section 63 regulates holiday overtime pay, which must not be less than three times the hourly wage rate on a working day.

Thai Law not only recognizes the rights of migrant workers but also pre-scribes their duties. The main elements include that those who work for a boss or employer, shall carry out all or part of that job according to contract. The worker is employed under the employer’s control. If the worker commits any wrongdoing he may be liable for damages or compensation, and the contract may be repealed. However, in fact, the protection of migrant workers in Thailand is still a question. Even though the Thai government recognizes legal status, or a temporary status, of migrant workers, there is still the other influential factor, namely the agreement between employer and employee. This is a bargaining power, a truth of the capitalist world.


Thaksin’s Management Policy on Migrant Workers

Sawai Prammanee, former permanent secretary of the Thai Labour Ministry, said that the August 2001 Cabinet resolution allows authorities to register an unlimited number of foreign workers, both in employment and self-employed, so they could be issued work permits. He agreed in principle with registration, which would enable authorities to know the exact number of foreign labourers in the country “and bring them under control”. But he also said that he was afraid the registration period as declared by the resolution (from 28 August to 10 October 2001) would not be long enough for the estimated three million alien workers in the country to show up for registration. As a result, large numbers of illegal workers would remain in hiding. Moreover, most of the workers from Burma were without identification papers. This would make registration very difficult.5

However, others support the provisions of the new resolution. According to Pinyo Veerasuksawad from the Rak Thai (CARE) Foundation, it is a new face of the Thai government. It is the first time that Thaksin’s government has accepted that illegal workers are a real problem. There are many migrant workers in Thailand but the previous administration allowed them to work only in certain industries located mainly in border provinces. As a result, large numbers of illegal workers would remain in hiding. This leads to many problems, such as contagious diseases.

Another important matter is that Thai employers take advantage of illegal migrant workers. “Pull them from the dark into the light”, said Adisorn Kerdmongkol, from the Thai Action for Democracy in Burma (TADB), about the workers. In his view the new resolution aims at a registration campaign placing about 500,000 illegal alien workers under control. And it would make it difficult to take advantage of migrant workers. Adisorn proposed that, “We should distinguish the difference between legalized migrant labour and liberalized labour”.6 The objective of registration is to facilitate control of migrant workers and to protect their rights. However, the new resolution provides no long-term strategy to deal with the problem of illegal immigrants. There is also a lack of support measures and punishment to prevent this influx. Sawai Prammanee said he was not confident the government could effectively control alien workers before and after registration, adding that it is still not clear whether those who are no longer employed and failed to register would actually be repatriated.

The warmer ties with Burma cultivated by Prime Minister Thaksin make the climate more conducive to dealing with the refugee issue. But the situation on the ground makes it clear that closer relations between Thailand and Burma do not necessarily amount to a solution to the refugee problem. Officials are increasingly turning their attention to the problems along the Burmese border now that there are only a few remaining Lao refugees in the Northeast.


Burmese Migrants and the Lessons from Laos

Thailand has learned from the Lao refugee influx. It took the country 15 years to reduce the number of Lao refugees from a peak of 40,000 to just the 34 still in Thailand. Thaksin is trying to convince this last group, living in Camp Ban Napho near Nakhon Phanom, that spending the rest of their lives there with limited freedom of movement is not a good idea. It is also impossible as the Ministry of the Interior is pushing for the permanent closure of this last camp for Indochina refugees. Laotians flocked to Thailand en masse, some swimming across the Mekong river, in the ten years after the Communists seized power in December 1975. Many refugees had fought with the anti-communist forces during Laos’ long civil war and feared the retribution of the victors. In preparation for the move to return home the Burmese refugees, the Thai Ministry of the Interior has announced plans to close Camp Maneeloy in Ratchaburi at the end of this year.

However, Rangoon insists it will only take back those with proof of Burmese origin. That is only one instance of the indifference shown by the Burmese regime to its people. Rangoon refuses to accept that these people have escaped to Thailand because of the armed violence in Burma, fears of forced labour and ethnic killings. In the eyes of the Burmese generals, the refugees are part of the anti-government forces, or job seekers looking for better lives in another country. Placing a million unskilled, uneducated and un-moneyed people back on Burma’s doorstep will cause severe headaches, not only for the Burmese regime, but also for Thailand and the rest of ASEAN.7 Burma’s capacity to absorb the displaced workers is in doubt. Even though the Burmese regime has signed a cease-fire with the Karen National Union, this will not lead to the instant return of the refugees. These people have made it clear that they will not feel safe inside Burma. Although Prime Minister Thaksin has promised there will be no forced returns, it is sad that the very workers who made the Asian miracle happen have now become political deadweight.


Conclusion

The question frequently arises as to what is Thailand’s “migrant workers policy”. Technically, policy is a combination of the Thai law regarding migrants and the ways in which Thai authorities enforce the law. Policy refers to patterns in the Thai government’s attitude towards migration, the reasons underlying the laws, and law enforcement. If there is anything that constitutes an overall Thai policy on migration, the goal seems to focus less on preventing migration than on controlling the flows of migration. So far, the efforts to control migration into Thailand have had little lasting success. Migrant labour is now a major part of the Thai labour force, well-entrenched, so that it will remain a key resource in the economy for many years. Migration into Thailand is a lasting and important part of the Thai economic system. However, the disparity in economic development in the region has grown with ASEAN’s admission of Burma and Laos, so the migrant-worker problem begs regional, not national solutions. ASEAN would do well to include the long-neglected social dimension of migrant workers on its agenda. The problem with the Burmese refugees is enormous, yet many feel the Thai success with the Lao refugees as somehow encouraging a similar outcome along the country’s western border.


Endnotes

* The author is a Legal Aid Coordinator with the Burma Lawyers’ Council.

1. Sudthichitt Chintayananda, et al., “The Monitoring of the Registration of Immigrant Workers from Myanmar, Cambodia and Laos in Thailand”. Bangkok: Asian Research Center for Migration, Institute of Asian Studies, Chulalongkorn University, May 1997, pp. 9-27.

2. “Thai Policy on Migrant Workers from Burma”. In: “Human Rights Yearbook Burma, 1999-2000”, National Coalition Government of the Union of Burma, Washington, D.C., August 2000, pp. 310-316.

3. Kritaya Achavanitkul, et al., “The Complexities and Confusion of Cross-Border Migration into Thailand” [in Thai]. Nakhon Pathom: Institute of Population and Social Research, Mahidol University, 1997.

4. “Labour Protection Act B.E. 2541 (A.D. 1998) with Royal Decree, Ministerial Regulations and Selected Notifications”. Bangkok: Chandler and Thong-Ek Law Offices Ltd., 1999, pp. 10-14, 20-33.

5. Supamart Kasem, “Senate Wants Registration Plan Revised: Panel Chief Slams Policy As Damaging”. Bangkok Post, 10 September 2001.

6. According to Adisorn Kerdmongkol, personal communication with the author, Chulalongkorn University, 5 October 2001.

7. Aaron Stern, “Thailand’s Migration Situation and its Relations with Asia-Pacific Economic Cooperation Members and Other Countries in Southeast Asia”. Bangkok: Asian Research Center for Migration, Institute of Asian Studies, Chulalongkorn University, January 1998.