Verdict a blow to customary land rights

Centenarian Karen forest dweller Ko-ee Mimee suffers in Pong Luek Bang Kloy Lang, a resettlement village where he is forced to stay against his will. Sanitsuda Ekachai

Ask the centenarian Ko-ee Mimee and other Karen forest dwellers what they want and why they sued Kaeng Krachan National Park officials who burned down their homes and violently evicted them from their ancestral land, and their answer is always the same: "We just want to be back home."

After six years of legal battles, the Supreme Administrative Court finally delivered its verdict on June 12. The frail centenarian, who has become a widely known icon of indigenous land rights, was not there.

Good for him. It would be too heartbreaking to watch a Bangkok judge telling the Karen elder to the face that he could not move back home because he does not have any official land documents.

Yes, you read correctly.

Park officials had to take a helicopter to reach Grandpa Ko-ee's isolated bamboo hut deep in Kaeng Krachan National Park so they could burn it down and take him by force to the resettlement village.

Do we expect forest dwellers living so far from the reach of state to have official land ownership documents?

Grandpa Ko-ee would be sadly disappointed with this ruling. But certainly not surprised. In 2016, the Administrative Court of First Instance ruled that he and other Kaeng Krachan forest dwellers were illegal forest encroachers.

He was shocked and grief-stricken. "How can that be? When I first opened my eyes, the forest was there. When I first drank my mother's milk, the forest was also there," he softly lamented.

The land in dispute is called "Jai Paen Din", meaning heart of the land. It is an area of pristine forest where small pockets of indigenous Karen forest dwellers have lived for centuries. It is situated deep in Kaeng Krachan forest which was declared a national park in 1981.

What is more important? One's natural right from being born and living where your ancestors have lived for generations? Or a legal ownership document?

What is more important? Reality on the ground or rules out of touch with reality?

Should one impose the modern legal system on the isolated, subsistence society where mutual respect for customary land rights prevails?

Should a country with cultural pluralism be governed by a uniform legal system?

To be fair, the June 12 verdict is far more favourable to indigenous land rights than the previous one. Unfortunately, it is overshadowed by the refusal to recognise the forest dwellers' ancestral land rights.

In 2016, the Administrative Court of First Instance ruled that Grandpa Ko-ee and other forest dwellers were illegal forest encroachers, so the park official had full legal right to use violence to evict them.

Had this verdict been upheld, forest officials could just torch the homes of any forest dwellers anytime, anywhere. There are now over 10 million people living in areas demarcated as national forests. Imagine the suffering that will ensue.

In a U-turn ruling, the Supreme Administrative Court harshly condemned the arson and forced eviction. The violence was ruled as unlawful, gravely affecting a person's basic rights under the constitution, and violating the Aug 3, 2010 cabinet resolution which prohibits forest officials from evicting indigenous Karen forest dwellers at whim.

Under the law, forest officials must notify the forest dwellers in writing step by step. They also need a court order to dismantle the dwellings. The Kaeng Krachan park officials led by then park chief Chaiwat Limlikhit-aksorn did none of that.

Under the Aug 3, 2010 cabinet resolution, forest officials are prohibited from arresting indigenous people until a land dispute is resolved by a neutral, multi-party committee. And if it is proven that the indigenous people have lived in the area before it was demarcated as national forests, they will have the right to continue living there.

The arson and violent evictions initiated by the former park chief took place in 2011, affecting more than a hundred forest dwellers.

In case you have forgotten, the then park chief used military helicopters in the raids, resulting in three fatal crashes. Many media turned him into a hero for retrieving the pilots' bodies.

The Administrative Court of First Instance admonished the raiders for not taking the forest dwellers' properties out first before torching their homes. It then gave Grandpa Ko-ee and five other suers 10,000 baht each for what was viewed as mere "shacks" and a few pots and pans.

For the forest dwellers, they have lost not only their family homes and rice barns. Their heirlooms and traditional clothes hand-woven with love and care for them by their late mothers are also gone forever. How do you measure that in monetary terms?

The Supreme Administrative Court redressed the compensation issue by increasing it five-fold to an average of 50,000 baht for each person.

Mueno, the Karen elder's niece-in-law and wife of Karen land rights activist Porlajee "Billy" Rakchongcharoen who disappeared after being arrested by Mr Chaiwat, looked dejected after the ruling.

"Grandpa doesn't want any money. He only wants to return to his home at Jai Paen Din to spend the last of his days. He must feel very sorry," she said.

Then her grief turned to anger. The Karen's simple abodes are not shacks, she said bitterly. "It's our home. What about the judges' housing estate at Doi Suthep? Why they are not torn down? Why not bring back the forest?"

Her bitterness is understandable. The indigenous Karen's simple way of life close to nature is why Kaeng Krachan remains a healthy forest. Their traditional farm rotation system has also been recognised internationally as ecological and contributing to forest biodiversity. Yet, they are persistently slammed as forest destroyers and their farming system as illegal slash-and-burn to demonise the indigenous Karen and legitimise forced eviction.

Her anger also reflects the public trust increasingly shaken by a long list of court cases which punish the poor and let the rich escape justice by the outdated and draconian forest laws.

So what's next?

Will some Kaeng Krachan Karen dare return to their original homes on their own and use the cabinet resolution to protect themselves from eviction? Without systematic legal support from rights groups, I doubt it.

The court has ruled the arson and forced eviction illegal. In theory, the police can immediately pursue a criminal case against Chaiwat Limlikhit-aksorn and his team. Will it happen? I doubt it.

After the 2011 raids, a local politician, the Karen forest dwellers' advocate Thatkamon Ob-om, accused Mr Chaiwat of forest encroachment and backed the forest dwellers' lawsuit against him. Thatkamon was shot dead while driving. Mr Chaiwat was charged with murder. The court subsequently freed him for lack of hard evidence.

In 2012, Billy, the nephew of Grandpa Ko-ee, was arrested by Mr Chaiwat for possessing wild honey. He was the co-ordinator of the Kaeng Krachan Karen's lawsuit against Mr Chaiwat and his team. Billy has been "missing" ever since.

Mr Chaiwat insisted he had already released Billy. An investigation by Pol Col Traiwit Namthongthai refuted his claim. Due to the lack of the enforced disappearance law, the person last seen with the disappeared cannot be taken to court. And as the "body" still could not be found, Billy remains "missing" forever.

Despite a storm of controversies, Mr Chaiwat continues to rise up the career ladder in the Department of Natural Parks, Wildlife and Plant Conservation, entrusted with forest raids nationwide.

As combative as ever, Mr Chaiwat, now promoted to oversee forests in the Northeast, reportedly said he had no apologies for what he had done. "I'm happy that the ruling means these people can no longer live in the forest."

A big misunderstanding here.

The ruling has made it clear that cabinet resolution prohibits eviction until a land dispute is already settled. The indigenous people have the right to stay if their community was there before the national park demarcation.

The June 12 ruling has raised many questions. But this is the biggest one: The court has ruled that the forest area called Jai Paen Din is a traditional community of the indigenous Karen forest dwellers in Kaeng Krachan National Park.

It's clear then that Grandpa Ko-ee, now more than 100 years old, has lived in Kaeng Krachan long before the national park came into existence. So why can he not return home?

Why?

Judges may feel compelled to stick to the letter of the law and follow the legal precedents of using land titles as proof of land ownership. They may also argue their hands are tied unless the dictatorial forest laws are amended to respect community rights first.

But judges have the right to interpret the laws to serve justice. They have the right to reject laws that violate the charter. They may have many reasons why they will not, or cannot do so. But they should realise that upholding the spirit of justice is the only thing the public expect from the judiciary.

If not, even when bad laws and officials' abuse of power are to blame, it's inevitable that the question from the Doi Suthep scandal will return to haunt the judiciary: "If the poor and indigenous people cannot live in the forest, why can judges?"