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Kongcharoen Nuthamon Phd Community Forest Management in Northern Thailand: Perspectives on Thai Legal Culture by Nuthamon Kongcharoen LL.B., Chulalongkorn University, 1990 LL.M., Chulalongkorn University, 1994 LL.M., Indiana University - Indianapolis, 2007 A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY in the Faculty of Law Nuthamon Kongcharoen, 2012 University of Victoria All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee Community Forest Management in Northern Thailand: Perspectives on Thai Legal Culture by Nuthamon Kongcharoen LL.B., Chulalongkorn University, 1990 LL.M., Chulalongkorn University, 1994 LL.M., Indiana University - Indianapolis, 2007 Supervisory Committee Dr. Andrew Harding (Faculty of Law) Co-Supervisor Dr. Philip Dearden (Department of Geography) Co-Supervisor Dr. Michael M’Gonigle (Faculty of Law) Committee Member iii Abstract Supervisory Committee Dr. Andrew Harding (Faculty of Law) Co-Supervisor Dr. Philip Dearden (Department of Geography) Co-Supervisor Dr. Michael M’Gonigle (Faculty of Law) Committee Member In northern Thailand, legal and social change creates dilemmas for forest conservation. On the one hand, Thailand suffers from severe deforestation and biodiversity degradation mainly as a result of human activities that overuse and encroach on forest areas. On the other hand, forestry law has, in turn, intruded on traditional communities that lived in and relied on the forest before modern state law diminished their lands and community rights. One of the potential solutions to this dilemma is community forest management (CFM), which acknowledges the forest stewardship of the communities who rely on the forest and helps them to become better forest protectors. CFM refers to people’s participation in forest conservation in the form of collective community action. The right to practise CFM is guaranteed in the Thai Constitution as a community right. However, state forestry law provides direct authority to government agencies and dominates forest management without reference to the Constitution. My hypothesis is that the Thai legal system is not compatible with CFM because the legal culture is based on written law and not on living law, which comes from the legal consciousness of the villagers and government officers who practise CFM. I use interviews as a research method to investigate the legal consciousness of three groups of people involved in implementation of CFM: members of three selected northern lowland and hill tribe communities/villages; government officers; and legal professionals. I apply green legal theory to analyze the two types of law governing CFM: state law and the law of the commons. People in the selected forest communities apply their own CFM regulations and use state forestry law for support only when their regulations cannot handle extreme situations. The villagers’ own CFM – the law of the commons – together with state law, creates their “living law”. Government officers cooperate with CFM, knowing that it will help them fulfill their iv mission of forest conservation. In contrast, legal professionals rely only on state forestry law rather than the Constitution, despite its supremacy, and ignore the law of the commons. To explain this phenomenon, I “decode” Thai legal culture by investigating its historical and social contexts. I also examine the legal education system, law making processes, legal commentaries and court decisions, to understand what shapes Thai legal culture. In my view, the narrow focus on statute law in Thai legal culture, and the focus on law as a profession rather than as a justice-based discipline, can be explained by the “modernization” of Thai administration and laws, and by the encroachment of globalization and capitalism, both of which have resulted in moving away from traditional land management based on the commons. I conclude by suggesting that the acceptance of CFM in Thai legal culture can be improved by encouraging socio-legal study, increasing understanding of CFM, implementing constitutional legal principles – and by reclaiming the law of the commons. v Table of Contents Supervisory Committee .............................................................................................................. ii Abstract..................................................................................................................................... iii Table of Contents ....................................................................................................................... v List of Tables .............................................................................................................................. x List of Figures ............................................................................................................................ xi Acknowledgments ................................................................................................................... xii Dedication ............................................................................................................................... xiii Abbreviations .......................................................................................................................... xiv Glossary ................................................................................................................................... xv CHAPTER 1 INTRODUCTION ..................................................................................................... 1 1.1 Starting Point .................................................................................................................... 1 1.2 Background Information ................................................................................................... 5 1.2.1 The Forest in Thailand ................................................................................................ 6 1.2.2 Local People: Khon Muang and Hill Tribes ............................................................... 13 1.2.3 Laws and Policies Concerning Forest Lands and Highlanders ................................... 20 1.3 Objectives of This Study ................................................................................................. 24 1.4 Methodology .................................................................................................................. 25 1.5 Structure of This Dissertation: Roadmap ........................................................................ 28 CHAPTER 2 APPLICATION OF LEGAL CONCEPTS .................................................................. 30 2.1 Legal Consciousness ....................................................................................................... 30 2.2 Legal Culture .................................................................................................................. 40 2.3 Green Legal Theory ........................................................................................................ 50 2.3.1 The New Naturalism: Environmental Philosophy ..................................................... 54 2.3.2 State Power: Governing Natural Resources ............................................................. 60 2.3.3 The Commons: Collective Rights and Collective Actions .......................................... 68 2.3.4 Legal Pluralism: Alternative Approach ..................................................................... 78 2.3.5 Indigenous Legal Studies: Alternative Perspective................................................... 82 2.4 Social Change and Living Law ........................................................................................ 84 2.5 Chapter Conclusion......................................................................................................... 99 CHAPTER 3 COMMUNITY FOREST MANAGEMENT AND THE LAW IN THAILAND............... 101 3.1 Pre-Colonial Natural Resource Management ................................................................ 101 3.1.1 Law of Lanna: Mangraisart ..................................................................................... 103 3.1.2 Law of Siam: Law of the Three Seals ...................................................................... 105 3.1.3 Building the Nation State and Uniting the Law: Siam’s Codification ....................... 107 3.2 Legislature Governing Forest Areas: Royal Forest Department Era .............................. 109 3.2.1 Thai Legal System Concerning the Forest .............................................................. 109 3.2.2 The Major Law: Code Law...................................................................................... 110 3.2.3 The Practical Law: Forestry Laws ........................................................................... 112 3.3 Constitution of 1997: Rebirth of Community Rights ........................................................ 117 3.3.1 The Fundamental Principle: Constitution ................................................................ 117 3.3.2 Community-Based Forest Management ................................................................ 121 3.3.3 Background – History of the Draft Bill .................................................................... 123 3.3.4 Summary of Content of the Draft Bill ..................................................................... 123 vi 3.4 Post-2008: No Way Out or Just Set
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