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An Attempt to Protect Human Rights (?

): Implementation of Regulating and Legalizing


Policies of Illegal Migrant Workers from Myanmar in Mae Sot Border,
Special Economic Zone (SEZ), Thailand

“Immigration policies need to be aligned with other laws and policies with a long-term vision which sees
migrants as a rights holders and contributors rather than as a drain on resources and a security threat”
Mekong Migration Network (MMN), 2016 p.20.

The paper aims to examine Thailand government policies on regulating and legalizing
illegal migrant workers from Myanmar in the border area, Mae Sot, Tak Province by using
business and human right framework. It is important to see what happened in Mae Sot due to
there are cases that garments’ companies in Thailand employ Myanmar workers at cheaper
wages (Ishida,2009 p.12). However, Thailand government has Memorandum of Understanding
(MOU) with its neighbor countries which declares that Thailand’s domestic laws will also
cover and protect migrants without discrimination1. In order to understand this contradiction,
the paper proposes an analyses of Thailand government policies. The paper starts from the
background; then explain on business and human rights approach which uses in the paper;
following with analyses part; last, it is a conclusion part.

Background and research questions


Myanmar migrant workers have a significant role in Thailand economy dynamic, particularly
in Mae Sot which part of Special Economic Zone (SEZ) area. It is estimated that there are
around 3-4 million or close to 10 percent of Thai workforce, and roughly 80 percent of migrant
workers come from Myanmar (Jaisat, Biel, Pollock, and Press,2014 p.7). Moreover, it is only
around 30-50 percent who have a work permit and proper travel documents (ibid.,). As a part
of East-West Economic Corridor (EWEC) which under flagship economic cooperation
program called the Greater Mekong Subregion (GMS) (Kudo,2013 p.192), Mae Sot becomes
the most active of Thailand’s border zones as well as a center of labor-intensive industries
(ADB, 2018 p.14). There are approximately 200,00-300,000 migrant workers there (Aung K
and Aung SL, 2009 in Jaisat et al,2014 p.17). Moreover, due to many garment factories in Mae
Sot which hire legal and illegal migrant workers from Myanmar, the population is growing up
along the border area (Ishida,2009 p.15). The reason of the illegal workers, particularly in Mae
Sot which have many garment factories, is because they came to Thailand using cross-border
pass or crossing natural borders through mountain or river(Kudo and Masami,2013 p.20).
Additionally, Kudo and Masami (2013 p.14) argue that many cross-border workers are in
dilemmatic conditions due to most of them are working illegally, as a result, they forced to get

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The declaration is stated in articles XVII under “protection” section which says “workers enjoy protection in
accordance with the provisions of the domestic laws in their respective country”; and article XVII which says
“workers of both parties are entitled to wage and other benefits due for local workers based on the principles
of non-discrimination and equality of sex, race, and religion”. The MOU between Thailand and Myanmar can
be seen in https://www.ilo.org/asia/info/WCMS_160932/lang--en/index.htm.
lower wages or/and often accept violations, such as human trafficking of labor forces, however
they cannot appeal the problem in the court or else they will get detected by the Thailand
government. Hence, it is crucial to legalizing the migrants in terms of guarantee their basic
right to defend their self.

In order to see the responses of the Thailand government on a tackle down the
problematic situation of the migrants, the paper follows up two questions, they are “how are
Thailand Government protect the illegal migrant workers from Myanmar in terms of regulating
and legalize them in Mae Sot area as well as an SEZ? And how are the implementations of the
policies for migrant workers from Myanmar in Mae Sot?” The following paragraphs attempt
to answer those two questions by using business and human rights approach.

Protect the Migrant Rights as a Part of Business and Human Rights Approach
As a receiver country, Thailand must be protected migrant workers who work there, essentially
in Mae Sot which has heavy business life. According to Miller, the state has a special
responsibility in order to protect the human rights of the people as long as they remain on its
territory (2012 p.21). Moreover, the special obligation is to guarantee the migrant procedural
rights, if they are accused of a problem which referred in Articles 10 and 11 in UDHR, as well
as to ensure their access in basic rights (Miller,2012 p.23; Carens,2008). Consider that Mae
Sot is one of the SEZ areas, the business approach and human rights approach is relevant in
order to understand how far the state should provide protection for the migrants.

United Nations has been produced “Guiding Principles on Business and Human Rights”
in order to manage parties who involve in the process, including migrant workers. Basically,
the guiding has three pillars, they are to protect human rights, to respect human rights, and
access to remedy. Moreover, the second pillar is intended for companies, hence the paper only
explains two pillars which obligate for the state. First, the state must protect human rights abuse
of every party which involve in business process within their territory and/or jurisdiction. The
state must take “appropriate steps to prevent, investigate, punish and redress such abuse
through effective policies, legislation, regulation and adjudication” (Guiding Principles
Business and Human Rights,2011 p.3). The UN also gives guidelines the operational principles
for the state in order to implement the pillar through their laws which govern not only the state
institutions but also business institutions in order to ensure their activities are respect human
rights (ibid. pp.4-6). One more thing that should be a highlight is the role of the state as
multilateral institutions who deal with the businessman. In the situation, the state should ensure
that the government institution who face to face with the business parties have the ability to
meet their duty to protect nor hinder business enterprises in order to respect human rights (ibid.
p.11).

Access to remedy, which also known as the third pillar of Guiding Principles Business
and Human Rights, is a must obligation for the state in order to ensure migrant workers can
gain their rights in the implementation process of the policies. The Guiding states that state
should take appropriate steps through judicial, administrative, legislative, and another
mechanism to provide access to those affected with abuses practices (Guiding Principles
Business and Human Rights,2011 p.27). Moreover, the state should attend the process not only
procedural but also in substantive aspects, such as holding a discussion session in order to
counteract or make good of violations of human rights that happened (ibid.). In this step, the
state should have clear implementation path as well as represent legitimate, accessible,
predictable, equitable transparent, right-compatible, a source of continuous learning, and based
on engagement and dialogue (ibid. p.34). Access to remedy mechanism becomes a crucial
process in the migrant workers due to it is not only a way of migrant workers to participate in
the system but also representative of the sincerity of the state in order to protect the migrants
and evaluate the business process itself.

These two pillars are essential in order to analyses how Thailand government policies
work in terms of manage and legalize Myanmar migrant workers in Mae Sot. Moreover, the
protection and access for remedy come together in order to ensure fulfillment of the migrants’
rights. And in the next section, the paper applies the concept to see the Thailand government
policies on migrant workers.

Thailand Policies for Migrant Workers


Thailand government has been produced several policies and mechanisms in terms of manage
and legalize migrant workers in general and from Myanmar particularly. It has been developed
migrant workers policies since 1992, both directly and indirectly (see Ito,2013 p.33). The first
wave is through Immigration Act of 1979 to regulate foreigner entry and residence; then
through Labour Protection Act of 1998 which regulates foreigner employment and worker
rights; and there is also the Employment of Alien Workers Act of 2008 (Ito,2013 p.31). Aside
it has national regulations, Thailand also develops a multinational agreement with sending
countries in order to strengthen the migrant workers’ rights. Sine 2002, Thailand and Lao PDR
signed (MOU) on the “Cooperation in the Employment of Workers”, then Cambodia and
Myanmar followed by signing the MOU in 2003 (Jaisat et al.,2014 p.18). Basically, the MOU
provides two side legal channels for migrants, both from sending countries and in Thailand
itself, to register with a proper yet temporary passport and work permit (ibid.). After all,
Thailand has comprehensive policies to protect migrant workers.
Picture 1
Implementation stages of registration policy of migrant workers in Thailand

Source: Ito, 2013 p.34.

In the implementation process, Ito has visualized three steps of Thailand government
in manage of migrant workers registration process, see the picture above. The first step is
migrant workers registration which held by the Ministry of Interior (MOI). The registration is
implemented regularly, such as in 2004, 2006, 2007, and 2009 by offering “free of charge, and
the registration process took place at MOI offices at the district levels” (Ito,2013 p.33). The
second step is the acquisition of work permit from the Ministry of Labour. The migrant ID card
is the main requirements for work permit application, which valid only one year and the
migrants need to extend it, at the Ministry (Ito,2013 p.36). Moreover, the application was
submitted in the Provincial Employment Office, in every provincial capital, and the cost of it
was 3,800 TBH2 (ibid.). The third step is legalization for stay and statues completed which
involve two side countries of the migrants.

Other channels to manage migrant workers is through “National Verification” (NV)


mechanism which involves cooperation with sending countries of migrant workers (see Ito,
2013 p.37: Jaisat et al.,2014 p.18). Basically, the NV program aims for the migrant who already
works and have an employer in Thailand (ibid. p.18). The first step, as well as the main stage
of the program, is migrant workers need to be verified their nationalities in their country origin
in order to issue the travel documents, such as temporary passports or certified of identity
(Ito,2013 p.37). Then the following step is to get stay and a work permit from Thailand
government which allow them to work in the country up to two years and extend the permit for
another two years or maximum renew for four years sequentially working in Thailand (Ito,2013

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The cost is consist of: 1,800 TBH for the one-year work permit; 100 TBH for the application form; 600 TBH for
the medical check-up; and 1,300 TBH for the medical insurance. Ito, 2013 p.51.
p.37; Jaisat et al.,2014 p.18). Moreover, after three years of break, the migrant workers might
be back to Thailand by applying another round of legal employment (ibid.,).

In advance, the Thailand government has been attempt to create access to remedy for
migrant workers even though indirectly way through government agencies and employer.
Theoretically, the remedy comes in two ways, they are in the procedural and substantial
method, however, the Thailand government seems only develop in the procedural way only. It
begins by enacting laws Alien Employment Act in 2008 which provide protections for legal
migrant and employing tougher measures to encounter illegal migrant as well as the employers
who hired them (Ito,2013 p.39). Moreover, the law also strengthened the authority of labor
inspection officers and expands to society by providing a cash incentive for those who give
information on illegal employment (ibid.). Parallelly, the Thailand government establish
“Committee Considering Appeal for the Work of Aliens” in order to make inquiries of labor-
related disputes between the migrant and the employers (Ito,2013 p.40).

From the explanation above, the Thailand government develop a good mechanism to
protect migrant workers right through manage and legalize them. Another compliment is the
government has been established a multilateral mechanism which implies the sending countries
and employer in Mae Sot directly. However, the government policies and mechanisms lack
access to remedy which involve the migrant workers itself. They also do not create bottom-up
system which allows the migrant to participate in the process and create a substantial remedy.

Myanmar Migrant Workers under the Legalization Scheme from Thailand Government
Implementation of Thailand government policies on regulating and legalizing Myanmar
migrant workers brings various effect to them. Those policies aim to guarantee the basic rights
of the migrant due to the basic problem of them is their status as illegal workers. In the
beginning, registration policy brings positive impact due to it can accommodate illegal workers
from Myanmar. In the most inclusive registration process of MOI in 2004, there were
1,284,920 applications of all of the irregular migrants from Cambodia, Laos, and Myanmar
(Ito,2013 p.33). Then, they were requested to photo ID and fingerprints in terms of producing
the migrant ID cards and there were 1,9019,110 workers or 91% of the applicant who got the
card (ibid.). In 2007, the registrations were focused on undocumented workers in SEZ in the
southern part of Thailand (ibid.). The number increasing year by year, and in 2009, there were
1,885,041 workers or 73% of the total number of registered migrants who got the migrant ID
card (ibid.). In other words, the higher migrants who have ID card, then the more migrants
acknowledged and have basic legal rights in Thailand.

In fact, the policies have another impact which turns into barriers for the illegal migrant
workers. First of all, in the acquisition of work permit in 2004 and 2007, there was a limitation
of the process. The process was eligible for those who acquired the migrant ID in those years
or those who already work permit since the previous year (Ito,2013 p.36). Furthermore, Ito
explains that managing the migrant workers could not simply repeating the registration process,
instead, the Thailand government should come with a comprehensive program which can fully
legalize the status of the migrants, hence it is not surprising that the number of work permit is
decreased in the following years (ibid.). And finally in 2009, the Thailand government refresh
the MOI registration by involved undocumented migrant workers who never obtained MOI
registration before, and as a result, there was an increasing amount of work permit into
1,315,932 applicant (ibid.). Nevertheless, Jaisat et al. argues that instead of improving migrant
rights, the changes in migrant management of Thailand government have value add in fees and
the number of bureaucratic steps in the process (2014 p.19). In the end, the limitation of the
policy brings discrimination to the migrants in order to gain their basic rights through the
legalization process.

Second, NV for migrant workers from Myanmar took a longer decision that other
sending countries. Legalization for migrant workers from Cambodian and Laotian was started
in 2006 by cooperation with Thailand government as well, while for Myanmar started in 2009
after both of the countries reached a same agreement (Ito,2013 p.37). At first, the Myanmar
government insist to ask the migrant to do NV in Myanmar before work in Thailand, however
in their agreement, Myanmar agree to cooperate with the Thailand Government 3 (ibid.,).
Another lack of NV program is its implementation process. Basically, the fee process of the
NV is 3,800 TBH, but it is only the application. In reality, the migrant spends more money on
the process. Jaisat et al., explains\ that the migrant pay around 10,000-12,000 TBH for the
whole process, which most of the expenses are for a broker who hired to assist them, not to
mention added their travel cost from the origin could reach 25,000 TBH (2014 p.20; see also
MMN,2016 p.17). As the migrant cannot afford the high fee for NV, they ask the employer
and deduct the fee from their monthly wages, usually it takes 500-1,000 TBH, however, the
employer does not use proper record which takes overpayment from the migrant frequently
(ibid.). Instead of guarantee the legal basis, the NV becomes a new trap for the migrants which
tied and depended on them to the employer.

One more thing that should be a highlight is the involvement of the employer when the
migrant wants to change their statues, which makes the processes cumbersome. It is mandatory
for the migrant to ask their previous employer to sign a release letter which only gives a week
for them for looking for another employer, in the reality, many of the employers and even
recruitment brokers are withholding the letter as ensuring that the migrant would not running
away and attempting for better works and/or wages (Jaisat et.al.,2014 p.20). As a result, the
migrant difficult for leaving their abuse employer, or some of them remain or intentionally

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Ito examines the final agreement between Myanmar and Thailand government: (1) Myanmar migrant workers
submit the application for nationality verification to the Thai government and the Thai government forwards
them to the Myanmar government; (2) the Myanmar government verifies that these workers are Myanmar
nationals and sends the results of the verification back to Thailand; (3) the Thai Government request migrant
workers to report, together with employer or a representative, to one of three border checkpoints in Thailand
(at Mae Sot-Tachilek, Mae Sot-Myawaddy, or Ranong-Kawthaung); (4) the migrant workers cross the border to
Myanmar and receive temporary passports at temporary passport issuance offices established by the Myanmar
government in the border towns of Tachilek, Myawaddy, and Kawthaung; (5) the migrant workers cross the
border back to Thailand and receive stay permits from the Thai Immigration Bureau; and (6) migrant workers
undergo medical screening at designated hospitals and then receive work permits at the Provincial Employment
Offices (2013, p.38).
being undocumented which make them more vulnerable to get violations, such as they might
be exploited by their new employers, arrested by police, detained, and deported as “illegal
alien” (Jaisat et.al.,2014 p.20). The Thailand government ought to be has a clear mechanism to
evaluate other parties involved in the process, particularly the firm and employer, and also
ensure them to have the same spirit to protect the migrants, not to exploit them.

Thailand government has efforts by creating legalization mechanism in order to protect


migrant workers’ rights from Myanmar by covered a huge number of illegal workers. However,
in the registration and legalization policies, there are some migrants which discriminate and it
violates human rights referred to Article 7 of the UDHR (see Miller,2012 p.17). The
implementation of those policies shows that multilateral policy could create another trap for
the migrants.

Conclusion
Thailand government has been established some mechanism for regulating and legalizing the
migrant workers in order to protect and guarantee their basic rights. The mechanism seems
comprehensive due to involving the sending countries and the employer in Thailand. However,
in the implementation process, it shows that the policies turn out barriers for the migrants due
to it needs a higher fee for the applicant which creates a new rope for the employer to tie the
migrant under unfair contract and wage. Moreover, access to remedy is still lack in both
regulations and implementations processes which it is one of the homework that should be
highlight by the Thailand government. It is important to remember that the migrants as rights
holder which has a significant role in Thailand’s economic, hence it is crucial to involve them
in the regulations process as well as develop a substantial remedy for them.

Bibliography
Asian Development Bank. 2018. The role of special economic zones in improving effectiveness of
greater Mekong Subregion economic corridors. Metro Manila: Asian Development Bank. [online]
Available at: https://www.adb.org/sites/default/files/institutional-document/470781/role-sezs-gms-
economic-corridors.pdf [Accessed 25 February 2019].

Aug.K and Aung, S.L., (2009, August). Critical times: migrant and the economy in Chiang Mai and
Mae Sot. MAP Foundation (Report). [online] Available at:
http://www.mapfoundationcm.org/pdf/eng/Critical-Times.pdf [Accessed 16 March 2019].

Ishida, Masami. 2009. Special Economic Zones and Economic Corridors. In ERIA Discussion Paper
Series. [online] Available at: https://core.ac.uk/download/pdf/9306181.pdf [Accessed 16 March 2019].

International Labour Organization (ILO). Memorandum of understanding between the government of


the Kingdom of Thailand and the government of the Union of Myanmar on cooperation in the
employment of workers. [online] Available at: https://www.ilo.org/asia/info/WCMS_160932/lang--
en/index.htm [Accessed at 30 March 2019].

Ito, Michiko. 2013. Thailand’s approach toward the management of migrant workers. In Ishida, Masami
(eds.). 2013. Border economies in the Greater Mekong Subregion. London: Palgrave Macmillan.
Jaisat, Kanchanadiut., Biel, Erin., Pollock, Jacquelline., and Press, Bram. 2014. Migrant workers in
Thailand’s garment factories. MAP Foundation (report). [online] Available at:
http://www.mapfoundationcm.org/pdf/eng/CCC-ThaiReport-DEF-LR.pdf [Accessed 25 February
2019].

Kudo, Toshiro. 2013. Border development in Myanmar: the case of the Myawaddy-Mae Sot border. In
Ishida, Masami (eds.). 2013. Border economies in the Greater Mekong Subregion. London: Palgrave
Macmillan.

Kudo, Toshihiro., and Ishida, Masami. 2013. Prologue: progress in cross-border movement and the
development of border economic zones. In Ishida, Masami (eds.). 2013. Border economies in the
Greater Mekong Subregion. London: Palgrave Macmillan.

Carens, Joseph H. 2008. The rights of irregular migrants. Ethics and International Affairs, 22 (2008),
pp.163-186. DOI:10.1111/j.1747-7093.2008.00141x. [online] Available at:
https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1747-7093.2008.00141.x [Accessed 28 March
2019].

MAP Foundation. Regular rights second edition: a study on the impact of regularization of migrant
workers from Myanmar (Burma) in Thailand. [online] MAP Foundation. 31 May 2015. Available at:
http://www.mapfoundationcm.org/pdf/eng/2_Regular%20Rights%20II_Eng%20_FINAL%20-
OK.pdf. [Accessed 27 March 2019].

Mekong Migration Network (MMN). 2016. Permanently temporary: examining the impact of social
exclusion on Mekong migrants. Chiang Mai: Mekong Migration Network with supported by the Toyota
Foundation. [online] Available at: http://www.mapfoundationcm.org/pdf/eng/Permanently-
Temporary-Eng-mmn-printed-version.pdf [Accessed 25 February 2019].

Miller, David. Border regimes and human rights. CSSJ Working Paper Series, SJ021, September 2012.
Oxford: Center for the Study of Social Justice, Department of Politics and International Relations,
University of Oxford.