Thursday, 21 March 2013

Reflections on Thailand (3): Is the time ripe for a citizenship campaign?

This is the third in a short series of blog posts dedicated to the situation of statelessness among Thailand’s ethnic minority people (the ‘hill tribes’). They are inspired by our current research into the impact of statelessness on women in Thailand, which aims specifically to map the link with human trafficking – a project funded by the US Department of State’s Bureau for Population, Refugees and Migration.

In 2008, Thailand adopted a ground-breaking amendment to its Nationality Act which had the potential to massively reduce the number of cases of statelessness in the country by offering a pathway to citizenship. Yet, five years on, it does not yet appear to have had this effect. There are still just over half a million stateless people in Thailand, although it is believed that a significant number of these is now eligible for nationality. This blog discusses why the provision introduced into the Thai Nationality Act in 2008 could fundamentally alter the picture of statelessness and Thailand and touches on some of the obstacles that are reportedly obstructing access to Thai nationality for many who would otherwise benefit.

2008 Nationality Act seeks to correct historic problem

Under the original Thai Nationality Law (1913), nationality could be acquired at birth both by descent from a Thai parent (jus sanguinis) or by birth on Thai territory (jus soli). Any child born in Thailand automatically acquired Thai nationality, even if the parents were foreigners and regardless of whether they had permission to reside in Thailand at the time of the child’s birth. Hill Tribe people whose ancestral home was Thailand were entitled to Thai nationality under the law and those whose ancestral links lay in e.g. Vietnam or China would only remain foreign in the first generation – once arrived in Thailand, any children born would also be Thai. But, in 1972, Revolutionary Party Declaration No. 337 introduced a significant restriction on the jus soli enjoyment of Thai nationality. Where a child is born in Thailand to foreign parents, both parents must have permanent residence for the child to be granted Thai nationality jus soli. This rule was introduced not just for children born after this date, but was applied retroactively, such that nationality was revoked from anyone who had acquired it jus soli but whose parents had not been permanent residents at the time of their birth – even if it left them stateless. In 1992, the Declaration was repealed, but the jus soli restriction it sets out was incorporated into the Nationality Law proper (section 7bis) and it remains in force today.

In the meantime, from the 1950s, Thailand took steps to document its citizens for the first time. A national census was executed with a view to registering everyone in the country, but many Hill Tribe people were overlooked. They remained undocumented and invisible to the Thai authorities. When efforts were made some decades later to register these communities, many were recognised as citizens, but many others were issued coloured identity cards which documented their presence in Thailand, but did not recognise them as citizens. Other coloured cards were also issued to various waves of newly arriving ethnic minorities who settled in Thailand after fleeing violence or other strife, during a specific period of problems in their home country and who had arrived undocumented, the link to their home country severed. A coloured card meant that the person was deemed to be non-Thai but their presence in the country was tolerated – although officially still illegal. Under the nationality law, this status did not amount to the permanent residence which took on a central role and, in 1972, children born to these coloured card holders were (retroactively) barred from jus soli entitlement to Thai nationality. Thus, many members of the Hill Tribe population who have ancestral links to Thailand missed their initial window for registration as Thai nationals, were subsequently cast together with other categories of tolerated “illegal” foreigners and found that their children were later stripped of any right to Thai nationality. At the same time, other ethnic minority people who arrived throughout much of the early to mid-1900s, ended up in the same position. All of their children inherited the same temporary immigration status held by the parent as well as their statelessness. 

The new provision of the 2008 Nationality Act determined that anyone whose nationality was revoked by the 1972 Declaration or who failed to acquire nationality while this Declaration was in force (1972-1992) can acquire Thai nationality (section 23). To benefit, applicants must have evidence of their birth and subsequent domicile in Thailand and demonstrate good behaviour. Those whose parents had their nationality revoked or were unable to acquire nationality due to the 1972 Declaration are also eligible for Thai nationality. In short, it would now appear that anyone born in Thailand before 1992 – or with a parent who was born in Thailand before 1992 – and still residing there, should now have a pathway to citizenship.

Obstacles to implementation

Since the aforementioned provision of the 2008 Nationality Act seeks to correct the way in which Thailand’s jus soli policy was being implemented, its implementation – as also indicated in the article – hinges on proof of birth in Thailand. The big snag there is that under Thailand’s previous civil registration law (also significantly and positively reformed in 2008), children born in the country whose parents were “illegal” foreigners, were often refused access to birth registration. This means that the group which should benefit from the new pathway to citizenship is precisely the group which may have difficulty proving their facts of birth, including – critically – date and place of birth. Similarly, where first the parent or grandparent’s entitlement to nationality must be established, the children or grandchildren’s ability to benefit from the same route to nationality depends on their ability to establish the family connection – also tricky without a birth certificate. This means that the processing of applications under the 2008 Nationality Act is not straightforward and other forms of evidence must be gathered in order to satisfactorily establish the facts of a person’s birth, such as witness testimony, a hospital or other health record, or a DNA test. A significant investment in time and resources may be required in order to achieve this – something which may be beyond the means of the people concerned.

Notwithstanding the evidentiary problems, with such a large stateless population in the country and therefore a potentially huge number of beneficiaries of the 2008 Nationality Act, the sheer number of cases that require processing presents its own difficulties. The ultimate authority to approve an application for nationality under this provision lies with the Interior Ministry at the central level, thereby placing a massive burden on time and resources, with cases becoming easily bottlenecked. At a seminar we attended during our research trip to Thailand, a representative of the Ministry of Interior explained how there was, quite simply, a problem of man-power that was causing a backlog in the processing of applications and the issuance of paperwork to those whose cases had been approved. At the same time, there are also capacity issues at the district level where the civil registrar is the person responsible for accepting an application and preparing the documentation for submission to the central level for approval. In many districts, the registrars do not have the required knowledge to ensure that the files are completed and all necessary evidence is included for the case to be processed successfully. Again, at the symposium, a problem raised was the lack of sufficient resources to provide training to registrars (of whom there are more than 2000 spread across the country) and there is also a problem of institutional memory since the registrars don’t tend to stay in their jobs for long, taking their knowledge of the relevant procedures and of the community they serve with them when they move on. This is hugely unfortunate since there are significant success stories of districts in which a single registrar who has taken the time to comprehensively prepare all of the accompanying paperwork with the applicant has been able to help dozens or even hundreds of people to acquire nationality.

Other impediments that were pointed out to us during our research trip, in particular by the various NGOs that are working with beneficiary communities to help them process their applications for nationality, related to discriminatory attitudes towards ethnic minority people encountered among government officials, as well as corruption. In some instances, registry officials refuse to accept applications, deliberately forward incomplete files or demand a high ‘processing fee’ (which is not prescribed by law). Since the implementation of the 2008 Nationality Law are ultimately dependent on the cooperation of their district registrar – this is where applications must be submitted – such situations at the local level stand in the way of the successful reduction of statelessness regardless of the policy that the central authority has put in place. Other key actors, such as the village head whose testimony may be required as evidence of the facts of an applicant’s birth, may also obstruct the process by demanding payment or refusing to cooperate. Moreover, although many NGOs are working to guide people through the process of acquiring nationality, some raise concerns about whether these groups hold all of the required knowledge and there is a sense that many organisations are working towards the same goal, but without necessarily cooperating closely and sharing expertise or success stories. There appears therefore to be room for capacity building within civil society as well.

Time for a citizenship campaign?

It is somewhat remarkable that Thailand’s 2008 reform to its nationality law, with its apparent potential for reducing the number of cases of statelessness in the country, has not received more attention and analysis. While it is always tricky to compare countries, given their specific cultural and political intricacies, it is worth questioning why a fully-fledged citizenship campaign has not developed in Thailand, as it did for instance in Sri Lanka following its adoption of a law that resolved statelessness for some 300,000 people. Could there not be a similar concerted effort to guide people down the pathway to citizenship that was created by Thailand’s 2008 Nationality Law, with a big awareness-raising, attitude-shifting and capacity-building push? Would it not be sensible to hold off on any discussions about further legal or policy reform that may be required in Thailand to ensure that statelessness is fully resolved or prevented in future, just long enough to harness the potential of this existing reform and then take stock of where the real gaps are left? Is this not something that international donors, the Thai government, UN agencies and civil society could all rally around? What is certain, is that if indeed Thailand’s 2008 Nationality Law holds the key to the resolution of statelessness for several tens, if not hundreds of thousands of people, a citizenship campaign would be well worth it and not only improve many people’s lives but also make a real dent in the problem of statelessness worldwide.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

No comments:

Post a Comment