Thailand Law Journal 2014 Spring Issue 1 Volume 17

(b) Allowing the views of the child in proceedings

The Second Optional Protocol to the CRC asserts that States shall take appropriate measures to allow the views, needs and concerns of child victims to be presented and considered in proceedings where their personal interests are affected, in a manner consistent with the procedural rules of national law.415 Furthermore obliging States to recognise the vulnerability
of child victims and adapting procedures to recognise their special needs as a witness.416 The Trafficking Protocol also calls for States to ensure measures that provide to victims assistance to enable their views to be presented and considered at appropriate stages of proceedings.417 Under Thai law, to protect victims, children are allowed to provide testimony on video418 or in the presence of an official experienced in work concerning children.419 There are no provisions explicitly concerning the views or opinions of the victims in proceedings in the Anti-Trafficking Act, Gov MOU, Gov-NGO MOU, Criminal Code, Child Act or Constitution.

(c) Legal assistance and interpretation

The COMMIT MOU and the MOU with Lao PDR call upon States to make available legal assistance,420 the COMMIT MOU further calling for information in a language the victim understands.421 The Trafficking Protocol obliges States to consider implementing measures to provide inter alia counselling and information, in a language that the victims can

The MSDHS shall consider to provide assistance as appropriate to a trafficked person on inter alia the legal proceedings.423 Presenting information in a language the victim understands is not covered in the Anti-Trafficking Act, Gov-NGO MOU or Gov MOU. In the case of Samaeson however, involving adult and child victims of trafficking from Burma, interpreters took statements from victims.424 It is not mentioned in the case whether any other linguistic assistance was offered.

(d) Compensation

MOU's with Burma and Cambodia, and the Agreement with Vietnam assert that victims have the right to claim compensation from the offender of any damages caused by trafficking in persons.425 The Trafficking Protocol obliges States to ensure that its domestic legal system contains measures that offer victims of trafficking the possibility of obtaining compensation for damage suffered.426 The Second Optional Protocol to the CRC further adds that child victims may seek compensation without discrimination.427

Under the Anti-Trafficking Act the inquiry official or public prosecutor shall, in the first chance, inform the victim of their right to compensation for damages resulting from the commission of trafficking in persons.428 Cases of Thai429 and Non-Thai victims have resulted in the claiming of compensation. In the case of Weerapong Saelee & Anoma Siriyoowattananon the victims were Burmese women and children and the judgement included the compensation payment to victims of 500,000 Thai Baht.430 Media reports also assert that a 12 year old Karen girl was awarded $140,000 compensation after suffering abuse whilst working as a maid.431

MOU's with Cambodia and Burma, as well as the Agreement with Vietnam, also require appropriate measures to ensure effective legal remedies for victims to claim restitution of any disputed personal properties that have been confiscated or obtained by authorities in the process of criminal procedures, and payment for unpaid services from the offender.432 There
is no specific provision concerning these measures under Thai law. The reasoning resulting in the monetary sums for compensation in the case law examined in this study are not offered and thus may or may not have taken into consideration the above.

The next chapter consists primarily of empirical research, presenting the views and experiences of those who have lived or worked with the target populations.


This section will present the perceptions of those who have either worked with or lived with the target populations. Names of interviewees will be given only where express consent to do so has been given and documented.

Data presented in this section includes four interviews with Burmese refugees living in Malaysia, who travelled through Thailand, three Karen individuals interviewed in 2009 and one Shan individual interviewed in 2011. This author interviewed these individuals in Malaysia, prior to embarking upon this research.

Interviewed for the purpose of this research: Mr. Ehkusoe, a Karen individual who lived in one of the Thai-Burma border refugee camps from 1999 – 2009.433 Mr. Chatchai Thepsena, the head of programs at a childrens' foundation in Thailand who worked with refugee children between 1996 and 2004, and stateless children between 2005 and 2012.434 And Mr.
Duncan McArthur, an aid worker, working eleven years for the Border Consortium, who provide inter alia shelter and food assistance to 120,000 people living inside refugee camps along the Thai-Burma border.435

Finally e-mail correspondence with a Karen individual currently living in one of the camps along the Thai-Burma border will be taken into account.

Certain claims made by interviewees will be supported, challenged or substantiated by UN, Government or NGO reports or other journals. This section cannot represent the views of other NGO's working with the target populations, the Royal Thai Embassy in London or the UNHCR in Bangkok who were all contacted regarding this study and either did not provide
an interview or did not respond to the invitation to take part.


1 Birth Registration

One camp was home to roughly 2,000 children, and an interviewee claimed that a Thai Government recognised birth certificate was easy to obtain in the camp.436 Another interviewee however explained that although the NGO's providing health care in the camps could provide hospital registration, he was unsure if they provided birth certificates, if not birth certificates they were "something comparable" that were universally accessible.437 According to another interviewee, not specifically concerned with those living in the camps, the target populations face difficulty in getting births registered as their parents are not Thai.438

The interviewees experiences are varied. The UNHCR however report that since 2010 non- Thai babies have enjoyed the right to birth registration, both inside and outside the camps. The birth registration acts as an application to gain a birth certificate, with reportedly 5,000 babies from the nine refugee camps receiving their birth certificates as of September 2012.439 The right to be registered after birth440 is progressively being realised.

2 Education

Many of the target populations cannot access standard eduction.441 There is a minority amongst the target populations, living outside the camps, who gain access to State education.442 The target populations can access primary and mid-level education but they cannot finish secondary education without being of Thai citizenship.443 Schools in the camps are run by volunteer organisations, the main teachers are refugees and there is no help from the Thai Government.444 In one class there are between 50 and 70 students to one teacher.445 The condition of the schools has resulted in an ongoing need for educational materials, building repair, furniture and teacher's salaries and training, with many children still unable to attend.446 Free, compulsory primary education for all447 has not been achieved.

[1]  [2]  [3]  [4]  [5]  [6]  [7]  [8]  [9]  [10]

[11]   [12]  [13]  [14]  [15]  [16]  [17]  [18]  [19]

413 For example: "The Ministry of Social Development and Human Security shall consider to provide
assistance as appropriate to a trafficked person on food, shelter, medical treatment, physical and mental
rehabilitation, education, training, legal aid, the return to the country of origin or domicile, the legal
proceedings to claim compensation according to the regulations prescribed by the Minister, providing that
human dignity and the difference in sex, age, nationality, race, and culture of the trafficked person shall be
taken into account. The right to receive protection, whether it be prior to, during and after the assistance
providing, including the time frame in delivering assistance of each stage, shall be informed the trafficked
person. In this connection, the opinion of trafficked person is to be sought." Ibid Section 33
414 For example: "In relation to the preliminary interview, investigation, and examination of witnesses in a court
of law, the investigating officers shall inform the officials of the Department of Social Development and
Welfare, NGOs, or embassies to provide or coordinate with officials who are experienced in work concerning
women and children—such as social workers, psychiatrists and psychologists, as needed—to participate in
these procedures." Gov MOU (n101) 5.7, "The operations according to the provisions of this MOU will bear
in mind as a priority the best interests of the trafficked children and women so that they will be provided with
legal assistance and be offered protection of their rights and interests duly reflecting to the principles of
human rights of children and women." (Gov-NGO MOU (n101) 2.2
415 Second Optional Protocol to the CRC (n169) art 8(c)
416 Ibid art 8(1)(a)
417Trafficking Protocol (n2) art 6(2)(b)
418 Alternative Report following the initial report from Thailand on the implementation of the optional protocol
to the convention on the rights of the child on the sale of children, child prostitution and child pornography
(n108) 22
419 Gov MOU (n101) 5.7
420 COMMIT MOU (n93) art 10, Memorandum of Understanding Between the Government of the Kingdom of
Thailand and the Government of the Lao People's Democratic Republic on Cooperation to Combat
Trafficking in Persons, Especially Women and Children (n94) art 7
421 COMMIT MOU (n93) art 10
422 Trafficking Protocol (n2) art 6(3)(b)
423 Anti-Trafficking Act (n52) Section 33
424 Centre Against International Human Trafficking, Office of the Attorney General, 'Samaesan' Criminal Court
of Bangkok UN Doc THA011 (28 January 2013)
425 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 8(c), Agreement Between the Government of the Kingdom of
Thailand and the Government of the Socialist Republic of Vietnam on Bilateral Cooperation for Eliminating
Trafficking in Persons, Especially Women and Children and Assisting Victims of Trafficking (n94) art 7(3),
Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Union of Myanmar on Cooperation To Combat Trafficking in Persons, Especially Women and
Children (n94) art 11(b)
426 Trafficking Protocol (n2) art 6(6)
427 Second Optional Protocol to the CRC (n169) art 9(4)
428 Anti-Trafficking Act (n52) Section 34
429 Such as the compensation awarded to Thai victims in: Centre against International Human Trafficking
Office of the Attorney General, 'Sareut Kampha and Others' Criminal Court of Bangkok UN Doc THA007
(29 August 2008)
430 Weerapong Saelee & Anoma Siriyoowattananon (n381)
431 Nyein Nyein, 'Thai Court Awards Abused Karen Girl $140K in Compensation' (n271)
432 Memorandum of Understanding Between the Government of the Kingdom of Thailand and the Government
of the Kingdom of Cambodia on Bilateral Cooperation for Eliminating Trafficking in Children and Women
and Assisting Victims of Trafficking (n94) art 8(a),(d)
433 On file with author, 'Interview #5' (25 July 2014) Ehkusoe
434 On file with author, 'Interview #6' (25 July 2014) Chatchai Thepsena
435 On file with author, 'Interview #7' (6 August 2014) Duncan McArthur
436 Interview #5 (n433)
437 Interview #7 (n435)
438 Interview #6 (n434)
439 Vivian Tan, 'In Thailand, birth registration gives refugee babies a good start in life' (UNHCR 24 September
2012) <> accessed 1 August 2014
440 A right under the ICCPR (n58) art 24(2), CRC (n32) art 7
441 Interview #6 (n434)
442 Interview #7 (n435)
443 Interview #7 (n435)
444 Interview #5 (n433), This is supported by the work of: Su-Ann Oh and Marc van der Stouwe (n5) 591
445 Interview #5 (n433)


© Copyright Thailand Law Forum, All Rights Reserved
(except where the work is the individual works of the authors as noted)