“Draft of the Act on ‘Intangible Cultural Heritage’: A law which censors culture?"
Manit Sriwanichpoom in the Silpawattanatham column of Siamrath Weekly, Yr.61, Vol.7,
1 – 7 November, 2013
8 October, 2013, the government of Yingluck Shinawatr accepted in principle a draft of an act on ‘Intangible Cultural Heritage’
(The act can be downloaded at http//www.culture.go.th/subculture4/attachments/article/67/Draft%20Law.pdf ).
The law was drafted by the Department of Cultural Promotion, Ministry of Culture. In the next stage, the department will bring this draft to the Council of State, which will scrutinize, correct and improve the draft before the government brings it to the parliament to be passed into law and into force. This process depends on how urgent the matter is and where it stands in the queue of issues waiting to be considered in parliament. Because it has an overwhelming majority, if the government is serious about this act and it comes before parliament, the process might not be difficult.
As this ‘Heritage’ act was being drafted, protesting voices arose immediately in the artworld, among the general public, and especially from the online world. Generally speaking, virtually no on agreed [with the proposed law].
In any case, I invite everyone to study this act carefully. How much would the new law actually impact the rights and freedoms of artists and people generally?
The following gives the reasons advanced to justify the act drafted by the Department of Cultural Promotion:
“ Because culture is extremely important to society and to the nation, the respect paid to the handing on of this heritage of ideas and ownership of the culture must be consonant with the world today. Culture should be handed on continuously, in an unbroken line. At present, even though there are laws concerning the guardianship of tangible culture - for example, archaeological sites and artifacts, works of art and museums - these laws still don’t refer to or have clear procedures which protect intangible cultural heritage – for example, the national language, traditional native or local languages, social rituals, cultures of performing arts, or various kinds of traditional skills.
Furthermore, the United Nations Educational, Social and Cultural Organization (UNESCO) and some other relevant international organizations have lobbied for the need of these laws to safeguard cultural heritage or the usages of intangible culture which have been handed down from forebears. It is therefore appropriate to have laws concerning the proper management, care, protection and promotion of Thailand’s intangible cultural heritage in order that the said cultural knowledge can be useful and can be exploited for cash and show results in the economy of the nation. And this includes the conservation, the guarding, promoting and revival of the nation’s intangible cultural heritage which will results in practices, and implementation and efficient approaches. Hence, it is necessary to put all this into law.”
According to the draft, there will be a committee appointed to guard and promote intangible culture and to administer the law. This committee is (which is so very familiar) composed of the minister of the Ministry of Culture, the permanent secretary, and the directors general of various departments, as well as representatives of communities and knowledgeable persons. (How these latter two groups of private citizens are selected, you can guess!)
And there will be registration of intangible culture. This regulation will have to be agreed upon by the committee. (At present, the Department of Cultural Promotion has announced the registration of 218 such kinds of heritage since 2009. And when this law passes, its carrying out will come immediately under the department’s management.)
Furthermore, there will be appointments to create, control, guard and promote an intangible cultural heritage fund. Thus, there will be money available to safeguard said heritage.
But what is important, and what I want everyone to consider especially are the following articles.
Article 39. Under Article 6, intangible cultural heritage which has been registered can be acted upon, but the source of that heritage must be acknowledged. The intangible cultural heritage referred to in section one is not to be adapted or distorted to make it deviate from the primary content of that intangible cultural heritage. The reference can only cite this primary source in order to increase the importance of the content of the primary source.
Article 40. It is forbidden to disseminate registered intangible cultural heritage which is lèse-majesté, or which impacts against religion or national security, or which disturbs the peace, tranquility and morality of the people, or which brings about the decline of that intangible culture.
Penalties stipulated for breaches of the foregoing.
Article 54. For those who do not answer a subpoena of the committee or send documents or objects as requested by the committee or subcommittee, Article 16 stipulates penalties of incarceration of not more than three months, or a fine not in excess of 50,000 baht, or both.
Article 55. Who is guilty of acting in disobedience to Article 40 risks penalties of not more than two years incarceration or a fine of not more than 50,000 baht, or both.
It’s evident that this is a criminal law, because the penalties include incarceration as well as a fine, a very harsh law.
In terms of principle, passing this act (which I copied out here for my readers) reflects for all to see that those who put forward the draft don’t understand what their duty is vis-à-vis the culture. The reason that most people do not oppose laws protecting archaeological sites, artifacts and art objects is because all these things can be damaged or destroyed. They are monuments to civilization which are visible. These things must be protected, and there should be serious articles of law which do so. But this is not like ‘intangible cultural heritage’. The name says it already: ‘intangible’. The character of intangibles is slippery, like water, changing unceasingly - - which is a kind of charm. If we try to hold water, or make it hold itself, it has to be frozen. The proposed law is, in fact, a big freezer for culture.
I don’t believe that UNESCO is asking Thailand to pass laws of this kind. UNESCO only asks the governments of various nations to ‘recognize’ the importance of their intangible cultural heritage, because they fear that these things will melt away and be lost with development toward modernity. The process to protect said heritage is up to each individual country. UNESCO has laid down guidelines for collective efforts, but has never asked that laws be passed that conflict with international treaties. Article 15, which the Thai government signed with the UN on 5 September, 1999, “guarantees the rights of every person to participate in the life of the culture,” and “respects the essential freedom to do scientific and creative investigation”.
As to who really wants this law – which I want to refer to as ‘the law to censor culture’ – it is most likely the Department of Cultural Promotion, which is seeking to create ‘power and weaponry ‘ for use in controlling society, hoping to keep people inside a framework which defines the meaning of culture which the department wants. It’s a return to the era of Field Marshall P. Pibulsongkram, or as Professor Chettana Nakwachara has said, like the period of Stalin in Soviet Russia.
Registering ‘Intangible Cultural Heritage’ is no different from the government confiscating the cultural heritage of the people. The committee will become the ones to say what can and cannot be done, what is right and what is wrong.
And take a look at the members of the committee. Do these individuals have sufficient credentials to take over such a task, even on the point of judging ‘what sullies the good morals of the people’ ? The ministers and all the permanent secretaries and all the many government officials: are they all so perfectly pure and clean? Have they not done things which are immoral or unjust? So then, do we really have to ask them what they understand culture to be?
It’s so strange! The Permanent Secretary of the Office of Contemporary Art was not included on the list of names of the members of the drafting committee. They must have thought that this matter concerns only ‘old’ things and does not concern the creative extension of the old in the new. And that [creativity] is one genuinely good aspect of ‘intangible culture’.
That there are penalties threatening incarceration and fines suggests spiteful and defamatory processes, accusations, and court cases. Article 40 seems to resemble Article 29, which is the law on film censorship, and Article 112, regarding lèse-majesté, a law which has become a problem nowadays. Because they fear being charged with such laws, artists will begin ‘censoring themselves’. They will not dare to try adapting old things with new interpretations, which is what the deconstructive processes of postmodernism do.
In the end, the works of artists like those of Somtow Sucharitkul, Pradit Prasatthong, Pichate Sihklanchern, Wasan Sittiket, Bruce Gaston and Wong Fong Nam and so many others will never see the light of day. This applies as well to artists in provinces all over the country. There will be fear. No one will dare to touch the cultural heritage of their ancestors because they could unwittingly end up in jail.
In conclusion, may I ask that the Department of Cultural Promotion, which is proposing this act, please let the act simply and only promote: it should not punish. If you hold stubbornly to your purpose, there’s certainly going to be trouble.