When the people affected by big company/corporation projects that impact their communities, their livelihood and even the environment, people reasonably will protest trying to get the government to consider the peoples' views before granting approvals, before extending licences/permits and even to move the government to cancel licences/permits.
In recent times, in Malaysia, we saw such protests and objections to LYNAS, the Raub Goldmine project, Bauxite mining, the protest against incinerators near their community, against logging, etc ..
What happens in some of these cases, is that the companies/corporation try to 'SILENCE' this legitimate right to campaign/protest of the people, using the law.
One way used is to SUE the people, and even MEDIA that gave space for the peoples' view to be aired, for defamation. Now, these legal suits are RETALIATION by corporations which affects the participation of people in the decision making process of government. In many of these suits, they also get a 'TEMPORARY INJUNCTION' which in effect will GAG the voices of the protesters and objectors.
DEFAMATION suits are 'expensive' and time consuming, and the people sued risk having to come out with large amounts monies - not only at the end of the case, but also when they lose intermediate applications and appeals. When they lose such small applications, one may be forced to pay the company about RM10,000 or more. If they lose the case, the people may be asked to pay even millions of ringgit.
The impact of such RETALIATORY action by especially big companies can be seen today - Most Media even when they report some picket or even some accident that even resulted in death will choose not to name the COMPANY or the workplace details - Have you noticed this?
Because of the HIGH COST risk, many who have been sued simply choose to 'SETTLE' simply because they cannot really afford the LEGAL BATTLE and the risk of having to pay a lot of monies. Lawyers also cost money - just to take up a Defamation case, many lawyers will charge at least RM100,000 - hence the legal battle is also expensive. Even if the companies lose at the High Court, they will appeal to the Court of Appeal, and even to the Federal Courts > and this appeal usually is not simply about the final judgment - but can be about every other application or appeal they lose.
Besides civil suits, these companies also can make criminal complaints - resulting in persons being arrested and charged for criminal offences. Even recently, when a frontline workers union picketted, several were arrested and charged...see:-
MALAYSIA too need to consider stopping this practice of employers and corporation, which undermines the ordinary peoples' right to advance their opinions and champion their just causes.
Below is a JOINT statement of over 50 groups and other individuals concerning such 'JUDICIAL HARASSMENT'
June
7, 2020
An
Open Letter to the Organizers of the United Nations Virtual Forum on
Business and Human Rights: New Challenges. New Approaches,
Asia and the Pacific, to be held on June 9 -11, 2020
To The UN Working Group
on Business and Human Rights (UNWG), United Nations
Development Programme(UNDP), International Labour Organization (ILO), United Nations Children’s Fund
(UNICEF), United Nations Entity
for Gender Equality and
the Empowerment of
Women (UN Women) and
the United Nations Economic
and Social Commission for Asia
and the Pacific (ESCAP),
We,
the undersigned organizations and individuals wish to request the UNWG and
other agencies working on Business and Human Rights intervene and highlight the
ongoing situation of judicial harassment of women and men Human Rights
Defenders (W/HRDs) in Thailand.
One
of the stated aims of the Forum is to “Facilitate learning and networking
opportunities for CSOs and human rights defenders and evaluate how they can
advocate for change and overcome barriers to access remedy”.
Judicial
harassment remains a significant barrier to the work of W/HRDs in Thailand.
Judicial harassment by State and/or Businesses breaches the UN Guiding
Principles on Business and Human Rights,
The
judicial harassment of W/HRDs violate all three pillars of United Nations
Guiding Principles on Business and Human Rights, being
1. The state duty to protect human rights
2. The corporate responsibility to respect
human rights
3. Access to remedy for victims of
business-related abuses
The
Guiding Principles also state that “When human rights are violated by
companies, governments must provide a robust and appropriate remedy for those
affected.”
We
believe that judicial harassment and the use of Strategic Lawsuits Against
Public Participation (SLAPP) by businesses will be a key topic of discussion in
the Forum.
We
call on the organizers to include the protection of W/HRDs into all sessions
and proposed actions of the Forum.
Moreover,
currently in Thailand, Women Human Rights Defenders (WHRDs) are targeted using
lawsuits aimed to undermine their work of protecting rights to land, housing,
the environment, and local natural resources.
Since
2014 Protection
International reported that over 440 WHRDs have faced charges. Now, since
2017, more than 200 WHRD have been charged.
Most of the complaints have been lodged against urban poor women facing
eviction. The second largest group of victims have been women defending land
and natural resources of their communities.
These cases have been filed by, amongst others, mining corporations,
palm oil companies and some State-run agencies.
Frequently
instead of supporting and protecting W/HRDs the Thai government seems to enable
companies to engage in judicial and other forms of harassment and intimidation.
For
example, a gold mining company with the involvement of some Thai authorities committed
serious human rights violations; including mounting a violent attack in 2014,
against members of the women-led community group Khon Rak Ban Kerd (KRBKG),
Loei Province. The subsequent actions included lodging about 22 legal cases
against the W/HRDs. The cases were brought by both the company and the State.
Authorities charged the community leaders with violating the Peaceful Assembly Act
simply for gathering to peacefully protest the damage project was causing in
their area.
The
most common complaint lodged against WHRDs is defamation, which is considered a
criminal offense under Thailand’s Penal
Code: Offence Against Liberty and Reputation Section: 0326 - 0333
The
targeting of WHRDs seems to be strategic. By charging one woman, the whole
family and often an entire community is affected. Women carry the
responsibility for caring for the family. The time taken up defending these
lawsuits is time taken away from the work of caring for the family. Aside from
interfering in the practical needs of the family, their frequent absences can
result in women being accused of “neglecting their duties”. The stigma borne by
women judged to be failing to take care of the family is very serious,
especially in the rural communities. Court hearings are often held in
provincial, a considerable distance from these WHRD’s home. The added economic burden of childcare,
travel and legal support increases stress and hardship. It also makes it
impossible to continue any fulltime waged work by reason of these court
processes. Judicial harassment of community WHRDs increases the possibility of
silencing these crucial voices that most importantly need to be heard.
Judicial
harassment by companies/corporations is also happening against other WHRDs
working in support of grassroots women and communities. For example, currently several charges of
criminal defamation have been lodged against 2019 Magsaysay Award recipient and
former Thailand National Human Rights Commissioner,
Ms. Angkhana Neelapaijit, a prominent advocate for
human rights and justice. This same company has to date lodged at least
37 complaints against 22 Human Rights Defenders, amongst others, Ms. Puttanee
Kangkun, Ms. Thanaporn Saleephol, Ms. Sutharee Wannasiri, Ms. Suchanee Cloitre (journalist), Ms. Suthasinee Kaewleklai (Unionist), Ms. Ngamsuk
Ruttanasatian (a lecturer) and many other prominent
W/HRDs.
The
defamation charges they face carry penalties ranging between prison sentences
of 8 – 42 years, and fines ranging $US25,000 – US$133,000. Most of the complaints involve things like
the simple act of sharing tweets in support of migrant workers pursuing their
struggle for labor rights.
Facing
legal charges is not just time consuming and costly but has a tremendous impact
on one’s emotional well-being. These attacks are deliberate and strategic. When
respected and prominent human rights defenders are charged, it can also affect
other W/HRDs, who may now become more fearful, wary and thus less effective in
their work for human rights and justice.
Judicial
harassment and SLAAPs are creating a climate of fear and silence amongst W/HRDs
and communities whose rights are being (or at risk of being) violated
During
this Covid 19 pandemic and thereafter, businesses will be looking for ways to
recoup their losses and return to making a profit as quickly as possible. The
work of W/HRDs will be even more important than ever for the Thai Government
and all agencies concerned with Business and Human Rights. W/HRDs are the
people who can best highlight violations or threats to human rights to ensure
that businesses comply with human rights principles and obligations.
While
continued judicial harassment is allowed to exist unchecked by the government,
the important work of defending human rights will become more dangerous and
untenable. This will ultimately harm
both Business and Human Rights.
Therefore,
we the signatories urge the UN Forum on Business and Human Rights to use this
opportunity to take a firm stand on the issue of protection of W/HRDs from
judicial harassment and other SLAAP actions.
In
particular, we ask you to raise the following points with the Thai Government:
1. The
need to address such litigious attacks intended to undermine struggles for
human rights has been well noted in reports and recommendations made by the U.N.
Working Group on Business and Human Rights since 2018. We urge the UNWG and
organizers of the Forum to request the Thai government report on their progress
towards compliance of these recommendations.
2. The
Action Plan for Human Rights Defenders is one of four key areas of the National
Action Plans on Business and Human Rights; yet there have been no concrete
moves to effectively protect or recognize the work of W/HRDs. The
NAP and subsequent Articles regarding judicial protections do not have the
status of law. It is merely a resolution by the executive branch of the
Thai government and is considered a “by-law” pursuant to section 3 of the Act
on Establishment of Administrative Courts and Administrative Court Procedure
B.E. 2542 (1999). It carries no judicial
weight or enforcement capacity.
3. In
2019, Articles 161/1 and 165/2 of the Criminal Procedure Code were also
introduced to try and address such SLAPP lawsuits and other similar forms of
judicial harassment. These amendments now allow a court to dismiss and forbid
the refiling of a complaint by a private individual if the complaint is filed
“in bad faith or with misrepresentation of facts in order to harass or take
advantage of a defendant.” However, these new Articles in the law have not been
effective. Terms such as “bad faith” are not even defined in the law, and it is
left to the Court’s discretion. Most applications by W/HRDs to invoke Article
161/1 to date have been denied.
4. Under
Section 21 of the 2010 Public Prosecutor Organ and Public Prosecutors Act,
complaints, including those brought to harass, intimidate, or retaliate against
human rights defenders or others can be
dismissed. However, the decision not to prosecute must be made by the Attorney-General
alone. This is a lengthy procedure and it’s not clear whether adequate resources and support have been
provided to the Attorney General’s Office to exercise their powers effectively
and efficiently.
5. There
is also no clear procedure or provision for fining or otherwise penalizing
businesses who have been found guilty of trying to resort to judicial
harassment of W/HRDs. We urge the State
to prevent all threats and harassment.
Those responsible for attacks on defenders including judicial harassment
must be held accountable. Those found to fail the duty of care to support and
protect W/HRDs must face political, financial and judicial consequences.
6. Defamation,
even when proven is not an offense that is harmful to one’s life, body or
property. It should not be considered or treated as a criminal offense which
carries a sentence of imprisonment and/or large fines. Such are sentences
usually reserved for serious crimes. We
urge the UNWG and other agencies to strongly encourage the Thai Government
decriminalize defamation and remove all criminal penalties for defamation.
7. We
call on all stakeholders who work on business and human rights to spend their
resources and power to ensure that the Thai Government and all relevant
business enterprises immediately end judicial harassment of W/HRDs, especially
women, and to take concrete steps to promote good business with a genuine
commitment to human rights
We thank you for your attention to
the concerns and issues raised in this letter. We look forward to working
alongside the Thai Government and related UN agencies to help ensure the
upholding of business and human rights principles for all.
Sincerely,
Angkhana Neelapaijit, Sor Rattamanee Polkla,
Puttanee Kangkun,Fortify Rights and Pranom Somwong
For and on
behalf of
1. People
Who Own Mineral Resources Network in Thailand
2.
The Community Women Human Rights
Defenders Collective in Thailand
3.
Try Arm Workers Collective
4.
Community Resource Centre Foundation(
CRC)
5.
Fortify Rights
6.
ENLAWTHAI Foundation
7.
Eco-Culture Study Group
8.
Public Policy on Mineral Resources
Project (PPM)
9.
Empower Foundation
10.
Justice for Peace Foundation
11.
Greenpeace Thailand
12.
Green South Foundation
13.
Esan Land Reform Network
14.
Rak Luhu Group
15.
Union for Civil Liberty (UCL)
16.
Buku's Gender, Sexuality and Human
Rights Classroom
17.
Khon Rak Ban Kerd of Six Villages Group
,Loei
18.
Khao Lao Yai-Pha Jun Dai Conservation
Group
19.
Khon Rak Ban Kerd Bamnejnarong Group
20.
Rak Ban Haeng Group
21.
Rak Amphoe Wanornniwat Group
22.
Namsam Khampalai Conservation Group
23.
Law long beach youth society
24.
The Southern Peasant Federation of
Thailand (SPFT)
25. Cross
Cultural Foundation (CrCF)
26.
Women and Children Protection Foundation
27.
People Empowerment Foundation
28.
Human Rights and Environment Promotion
Association
29.
Foundation for Labour and Employment
Promotion (HomeNet Thailand)
30.
Center for Protection and Revival of
Local Community Rights (CPCR)
31.
Thai Lawyers for Human Rights( TLHR)
32.
Human Rights and Development Foundation
(HRDF)
33.
Ecological Alert and Recovery Thailand
(EARTH)
34.
Isaan Community Institute/ Isaan
Community Foundation
35.
Legal Advocacy Center for Indigenous
Communities (LACIC)
36.
EEC Watch
37.
Network of Eastern Friends: Agenda
of Eastern Change
38.
Project SEVANA South-East Asia
39.
Human Rights Lawyers Association(HRLA)
40.
Community and Civil Society
Coalition for Business and Human Rights Watch(CCBHR)
41.
Asylum Access Thailand
42.
ALTSEAN-Burma
43.
Asian Forum for Human Rights and
Development (FORUM-ASIA)
44.
Mekong Watch
45.
The International Service for Human
Rights (ISHR)
46.
Protection International (PI)
47.
Women of Color/Global Women’s
Strike.
48.
Worker Hub for Change (WH4C)
49.
Witness Radio – Uganda
50.
Oil Workers' Rights Protection
Organization Public Union Baku, Azerbaijan,
51.
Buliisa Initiative for Rural Development
Organisation (BIRUDO) , Uganda
52.
Cameroon Network of Human Rights
Organizations (RECODH),Cameroon
53.
Lawyers' Rights Watch Canada
Individual signatory
1. Angkhana
Neelapaijit , 2019 Magsaysay Award recipient and former Thailand National Human
Rights Commissioner,
2.
Sor.Rattanamanee Polkla, Human Rights
and Environmental Lawyer
3.
Puttanee Kangkun
4.
Thanaporn Saleephol
5.
Sompong Viengchan
6.
Kanchana Di-ut
7.
Nutchanart Tanthong
8.
Somboon Kongka
9.
Vipa Matchachart
10.
Thongpoon Sasang
11.
Suwit Kularbwong
12.
Eakpant Pindavanija
13.
Saowanee Keawjulkarn
14.
Associate Professor Kanokwan Manorom,
PhD. Ubon Ratchathani University
15.
Somchai Homlaor, Lawyer
16.
Penchom Saetang
17.
Ngamsuk Ruttanasatain
18.
Assoc Prof Suchart Setthamalinee
19.
Parinya Boonridrerthaikul
20.
Somnuck Jongmeewasin, Ph.D. -
Environmental and Health Academic
21.
Joseph Désiré ZEBAZE
22.
Mirvari Gahramanli
23.
Yuhanee Jehka
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