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Chiang Mai's fledgling music scene has suffered a setback of late due to the crackdown on foreign musicians playing live music in the city. A number of arrests were made during the months of March and April at Guitarman and Northgate, nightspots that have gained cult status within the foreign community, among local Thais as well as tourists. The arrests, which the immigration police have said were an action against people working without the requisite work permits, has created confusion and a small void at a time when Chiang Mai was fast becoming a creative nexus for foreign musicians.
Since the arrests, the expat community, musicians, bar owners, as well as music aficionados, have been voicing their opinions, though mostly in the shadows, debating the issue of whether the arrests were just and in accordance with the law, or whether it is yet another attempt to intimidate foreigners out of money and how much affect it will have on Chiang Mai as a whole. Questions have been raised as to what is exactly illegal concerning playing live music. One of the arrestees at Guitarman was in Thailand for just a short time when he was arrested just for jamming, although some of the musicians playing at various venues in Chiang Mai have admitted that they were paid for their services, thereby undoubtedly violating the law.
An anonymous musician from a popular foreign band based in Chiang Mai told Citylife that his regular venue is now virtually deserted with no music being performed anymore, "Open mic nights are done, musicians in Chiang Mai are done", he said. He also explained that a large number of foreign musicians have cancelled their gigs out of fear of being arrested by immigration, and a growing number of foreign musicians who have settled or retired in Chiang Mai are leaving as they feel that the city no longer offers what was once a creative hub for performers.
Chiang Mai is currently asking United Nations Educational, Scientific and Cultural Organisation (UNESCO) to grant the city 'Creative City Status', a city where cultural and creative activities are an integral part of the city's economic and social functioning. If Chiang Mai is to be internationally recognised as a creative city, would it not be in our interest to promote creativity through music, art, poetry...or even karaoke? On the other hand, the law of the land surely must also be upheld and enforced.
The recent crackdowns are not only affecting foreign musicians in Chiang Mai, but also businesses and local tourism - though to what degree depends on your standpoint regarding this issue. Business owner Toni of Happy Pizza (Chiang Mai-Hod Road, Hang Dong) has been forced to put his pizza and pasta restaurant up for sale, "since the recent musicians arrests in Chiang Mai, I can no longer sing and play music in my own restaurant, this is the reason why I am selling," said Toni.
Basically, the law states that without a valid work permit foreigners can not earn money for a living. And if musicians play regularly in a venue, it can be argued that they are increasing the sales for that business, even though they are not remunerated, therefore they should have a work permit. Tourists cannot reasonably be expected to understand that they may be caught up by the police should they stand up on stage to play a song. And in fact, there is nothing illegal about that act, since they tend to be one-off occurrences. Immigration police are trying to uphold the law whilst musicians, claiming to be unaware of immigration laws, may be risking their freedom and could end up in jail. While naivety can be claimed as a defence, it will not hold up in court.
Ruchuchai Potha, Chiang Mai Employment Office, Department of Work Permits, explains that his department and the immigration police both have the power to arrest for on-the-spot employment breaches. The two departments also employ investigative officers who specifically focus on larger case infractions. When a complaint regarding illegal work activity is lodged to the immigration police it is their duty to investigate, if they fail to follow through it becomes a dereliction of duty. In the case of the Guitarman arrests, an official complaint was made by someone and immigration followed through after investigations. Ruchuchai said there were similar circumstances surrounding the Northgate arrests, although unfortunately an innocent backpacker was swept up in the net without doing anything wrong. While he may have had to go through the legal process following, no charges were laid nor were court appearances required.
So when is 'work' officially considered as employment? Ruchuchai answered, "If you work at home it's none of my business, gardening, sweeping, painting, it's all fine. It's when you perform activities which help someone (or yourself) earn an income, that is not OK." If you were to make furniture at home and gave a set to a restaurant owner friend, that wouldn't be a problem," when asked if one were to make 10 sets for a restaurant, Ruchuchai responded with an ambivalent, "ah..." which I can only assume that means 'not OK'. The second an individual or group begins to promote their work through portals such as websites, posters, etc. regardless of whether they are for profit or not, "things get wrong" says Ruchuchai.
According to the Alien Working Act, B.E. 2551 (2008), any non-Thai nationality may not work inside Thailand for wages or benefit without expressed official permission, i.e. a valid work permit. And while the Labour Department can issue work permits quite easily and with few restrictions, within permitted fields of work, the problem is often the monetary restrictions required by the Immigration Department in issuing visas (a westerner has to earn - and pay taxes and social security on - over 50,000 baht per month to receive a visa). Though musicians 'jamming' for no wages, as one Chiang Mai lawyer put it, is a different matter and a complicated issue. Many foreign musicians may in fact not be accepting payment and are just 'jamming' for enjoyment and therefore not breaking any immigration laws. However, this can be difficult for immigration police to discern who is 'legally' playing, and who is not. Ruchuachai says, "There's a process in place, if you're following it and can prove it, you're innocent. No problem, jamming is OK for sure. No judge is going to punish you for it, but you may have to go through the legal process nonetheless."
Laws like the Alien Working Act, B.E. 2521 (1978), a legislation which includes criteria designed to protect the Thailand domestic labour department, is an example of what kind of factors complicate the issue. Under this legislation, the Department of Employment will consider whether the 'work' could be undertaken by a Thai, whether the foreigner is appropriately qualified and whether the job fits the needs of Thailand. After these factors are considered, the individual requires an organisation such as a company or charity to sponsor them.
Any foreigner with intent to work, or 'jam', can apply for a 15 day temporary work permit through the Department of Work Permits in Chiang Mai. Ruchuachai says, "I'm a reasonable man, we can give permission, the law says if a foreigner is going to work for less than 15 days they can - just come and ask me." Although he makes it sound so easy, we do wonder how many people will take the risk of applying for such permits. Then there is the problem of confusion amongst the government agencies themselves. Ruchuachai claims that his staff are all quite sensible and are not out to get people for minor infractions, but says "that cannot be said about other departments who may have another agenda". He even goes so far as to mention the tourist police in Chiang Mai, who employ foreign 'volunteers' who are technically working without official work permits, "please tell them that that is illegal! They need to come and report to me. The same goes for many government agencies and not-for-profit organisations which employ foreign teachers, also for apparent 'volunteer' duties, again without permits." "We're all going to end up arresting each other soon. Authorities are not respecting our department or the law," he bemoans.
"Basically, the law is the law but it's up to discretion. However, discretion is one thing, everyone has different standards", said Ruchuchai. "Some Thai authorities are too uptight. I don't want to insult them but... you know. I'm happy with my staff, they don't go overboard, they use common sense." It's easy enough to use the term 'common sense' but common sense tends to differ from person to person.
When asked about Citylife's recent Unite for Japan concert, where numerous foreign musicians played to raise money for Japan, he horrified us with his answer, "Citylife could have been fined up to 100,000 baht per musician, next time make sure you ask my permission!"
Where do we draw the line? Even Ruchuachai says "it's hard to answer". It's a catch 22. If all laws in Thailand were as firmly enforced as the current crackdown, people might possess a greater understanding of the law and the consequences, then the foreign music scene in Chiang Mai may not be hit as hard and fear around performing (legally) would minify. However, if that were the case 'jamming' goes out the window and is replaced by foreign musicians stuck in the waiting line at the Department of Work Permits hoping to be granted with the right to 'play legally' for a 15 day period...an artist's dream, huh? The law will never be respected if groups feel they are being targeted and other law-breakers are getting away with far greater crimes.
