New lawsuits brought by Thammakaset Company Limited against human rights defenders

PrimeMinister Prayut Chan-o-cha

Officeof the Permanent Secretary, Prime Minister’s Office

RoyalThai Government

GovernmentHouse

1Pitsanulok Road

Dusit,Bangkok 10300

Thailand

RE: New Lawsuits Brought by Thammakaset Company Limited AgainstHuman Rights Defenders

DearPrime Minister Prayut,

The 89undersigned organizations write to express our deep concern regarding recent spuriouscomplaints brought by Thammakaset Company Limited against several human rightsdefenders in Thailand.

We respectfullyurge the Thai government to take immediate action to oppose and seek thedismissal of cases filed by Thammakaset that run counter to your government’sproclaimed policy to support business and human rights as well as Thailand’sinterests, legal obligations, and international human rights law commitments.

Todate, Thammakaset - a Thai-owned poultry company in Lopburi Province - hasfiled no fewer than 13 criminal and civil complaints against a number of humanrights defenders, including former employees. While Thai authorities and courtshave dismissed most of the complaints, some are still pending and, in November2018, a company representative pledged to bring more complaints.

In December2018, Thai authorities summoned 14 former employees of Thammakaset, all migrantworkers, to acknowledge complaints by the company, alleging that the workers “wronglyfiled a false case with officials and caused damage to another [person orentity].” Lopburi Province police also called Suthasinee Kaewleklai, theThailand Coordinator of the Migrant Workers Rights Network (MWRN) - an advocacygroup that supports migrant rights in Thailand - to report to the police onJanuary 28, 2019 to discuss a separate complaint by Thammakaset against her. Onthe same day, the Lopburi Province police requested information from witnesses aspart of an investigation into complaints brought by Thammakaset at the end of2018 against six individuals relating to activity on social media.

Thammakaset’scriminal complaints stem from its former 14 employees’ involvement in reportinglabor rights abuses to the Department of Labor Protection and Welfare (DLPW)and the National Human Rights Commission of Thailand (NHRCT) in 2016. Inseparate investigations, both DLPW and the NHRCT found evidence of labor rightsabuses, including that Thammakaset failed to pay minimum and overtime wages andfailed to provide adequate leave to workers as required by law. On January 15,2019, the Supreme Court upheld a lower court’s order requiring Thammakaset topay 1.7 million Thai Baht (US$51,470) in compensation to the 14 formeremployees for violations of Thailand’s Labor Protection Act.

Thammakasetrecently brought additional legal complaints against human rights defendersinvolved in publicly reporting on labor rights abuses and employer reprisalsagainst the workers. As of October 2018, Nan Win, a former Thammakasetemployee, faces new criminal defamation charges forspeaking out on the alleged labor abuses and reprisals against the 14 formeremployees ina filmproduced by the human rights organization Fortify Rights andduring aFacebook-live press conference that Fortify Rights organized. SuthareeWannasiri, a former human rights specialist with Fortify Rights, also facescriminal and civil defamation charges for sharing Fortify Rights’ film onsocial media. The Bangkok Criminal Court is scheduled to consider thecomplaints against Nan Win and Sutharee Wannasiri on February 4 and March 11, 2019,respectively, and the Civil Court scheduled hearings in August 2019 to considerthe civil complaint against Sutharee Wannasiri.

Weare alarmed that Thai authorities are proceeding to investigate and prosecute thesecomplaints by Thammakaset, particularly after the Don Mueang Sub-District Courthas already dismissed similar criminal defamation charges in July 2018 broughtby the company against the same 14 former employees. These new charges filed byThammakaset constitute harassment by the company that waste valuable time andresources of police, prosecutors, and judicial officers.

Thecomplaints by Thammakaset appear to be reprisals brought to harass human rightsdefenders involved in exposing abuses. Such reprisals interfere with the workof human rights defenders and prevent the implementation of labor rightsprotections. The cases brought by Thammakaset are emblematic of StrategicLitigation against Public Participation (SLAPP) lawsuits. These casesdemonstrate the dangers SLAPP suits pose for workers and human rights defendersin Thailand and illustrate the need for your government to adopt clear policiesand enact regulations and laws to oppose such cases from proceeding. Thammakasethas a long history of aggressively using the courts to intimidate and silencehuman rights defenders, who have exposed business-related human rights abuses. InAugust and October 2017, Thammakaset filed criminal suits against two migrantworkers and Suthasinee Kaewleklai for the alleged theft of employment timecards.In fact, the timecards were presented to Thai government labor inspectors asevidence of labor violations, assisting officials to perform their duty asrequired by law. Although Thai courts eventually dismissed Thammakaset’scomplaints, the cases should never have proceeded in the first place and resultedin undue stress, unnecessary legal costs, and lost time and wages for thosefacing charges.

Werecognize recent legislative steps by the National Legislative Assembly inDecember 2018 to amend Section 161/1 of the Thailand Criminal Procedure Code. Thisamendment allows a court to dismiss and forbid the refiling of a complaint by aprivate individual if the complaint is filed “in bad faith or withmisrepresentation of facts in order to harass or take advantage of a defendant.”Section 161/1 should apply to the recent complaints brought by Thammakaset.

Thisamendment is insufficient to address SLAPP suits generally in Thailand. Inaddition to relying on the court’s application of Section 161/1, we urge yourgovernment to clearly demonstrate its opposition to SLAPP lawsuits, such as theones filed by Thammakaset. Seeking the expeditious dismissal of the recentcomplaints by Thammakaset would be instructive to both foreign and Thai businessesoperating in Thailand and demonstrate your government’s commitment to implementingthe law and upholding business and human rights principles.

Toprevent future SLAPP lawsuits like those filed by Thammakaset, we recommendthat Thailand develop comprehensive anti-SLAPP legislation that fully protectsworkers, human rights defenders, and others from judicial harassment. It isalso essential that the public prosecutor and the Attorney General’s Office be providedwith adequate resources and support to exercise their powers under Section 21of the 2010 Public Prosecutor Organ and Public Prosecutors Act to screen out unwarrantedcomplaints, including those brought to harass, intimidate, or retaliate againsthuman rights defenders or others. Thailand should also decriminalizedefamation and end imprisonment or fines as penalties for acts of defamation.

Weurge the Thai government to follow the recommendationprovided by a group of six United Nations human rights experts in May 2018 to“revise its civil and criminal laws as well as prosecution processes to preventmisuse of defamation legislation by companies.” During its official visit toThailand in April 2018, the U.N. Working Group on Business and Human Rightssimilarly called on the Thai government to “ensure that defamation cases arenot used by businesses as a tool to undermine legitimate rights and freedoms ofaffected rights holders, civil society organizations and human rightsdefenders.” The Working Group further recommended “enacting anti-SLAPPlegislation to ensure that human rights defenders are not subjected to civilliability for their activities.” We encourage the Thai government toincorporate these recommendations into Thailand’s National Action Plan onBusiness and Human Rights and also ensure meaningful consultations with Thaicivil society on developing and implementing the National Action Plan.

Wethank you for your attention to the issues and recommendations raised in thisletter. We welcome the opportunity to assist and support the Thai government inmeeting its commitments to uphold business and human rights principles as wellas to protect the rights of workers, human rights defenders, and basic freedomsin Thailand.

Sincerely,

1. Aksi! for Gender, Social and Ecological Justice, Indonesia

2. American Federation of Labor and Congress ofIndustrial Organizations (AFL-CIO)

3. Amnesty International

4. Anti-Slavery International

5. Article 19

6. ASEAN Parliamentarians for Human Rights

7. Asia Pacific Forum on Women, Law and Development

8. Asia Pacific Mission for Migrants (APMM), Hong Kong

9. Asia Pacific Refugee Rights Network

10. Asian Forum for Human Rights and Development(FORUM-ASIA)

11. Assembly of the Poor, Thailand

12. Australian Council of Trade Unions

13. Building and Wood Workers' International (BWI)

14. Bune United Sisters, Tombil Community, Minj , JiwakaProvince, PNG

15. Burma Campaign-UK

16. Business & Human Rights Resource Center

17. Center for Alliance of Labor and Human Rights(CENTRAL)

18. Center for Trade Union and Human Rights (CTUHR),Philippines

19. Chab Dai

20. CIVICUS

21. Civil Rights Defenders

22. Coalition for the Rights of Refugees and StatelessPersons

23. Community Resource Centre Foundation

24. Conservation International

25. Cross Cultural Foundation

26. Danish Ethical Trading Initiative

27. Environmental Justice Foundation

28. Ethical Trading Initiative

29. Ethical Trading Initiative Denmark

30. Ethical Trading Initiative Norway

31. FIDH (International Federation for Human Rights),within the framework of the Observatory for the Protection of Human RightsDefenders

32. FishWise

33. Fortify Rights

34. Foundation for Education and Development

35. Free the Slaves

36. Freedom Fund

37. Freedom United

38. Frontline Defenders

39. GABRIELA Alliance of Filipino Women, Philippines

40. Global Coalition on Migration

41. Global Legal Action Network

42. Global Migration Policy Associates

43. Greenpeace

44. Highlands Women Human Right Defenders Movement, PNG

45. Human Rights and Development Foundation

46. Human Rights Lawyers Association

47. Human Rights Now

48. Human Rights Watch

49. Humanity United Action

50. IJM Foundation (มูลนิธิไอเจเอ็ม)

51. Indonesian Migrant Workers Union, Indonesia

52. International Accountability Project

53. International Labor Rights Forum

54. Kabar Bumi (Indonesian Migrant Workers Union),Indonesia

55. Korea Center for United Nations Human Rights Policy(KOCUN), the Republic of Korea

56. Kugar Farmers Association, Kudjip, BANZ, JiwakaProvince, PNG

57. LawAid International

58. Lawyers' Rights Watch Canada

59. Liberty Shared

60. Manushya Foundation

61. MAP Foundation

62. MARUAH, Singapore

63. Migrant Workers Rights Network

64. National Alliance of Women Human Rights Defenders(NAWHRD), Nepal

65. National Indigenous Women Forum (NIWF), Nepal

66. NEthing, India

67. North Whagi Country's Women Association, JiwakaProvince, PNG

68. Oxfam

69. RITES Forum, India

70. Robert F. Kennedy Human Rights

71. Rural Women Association Alga, Kyrgyzstan

72. Shan Women's Action Network

73. Slave Free Seas

74. Social Accountability International

75. SRED, India

76. Stop the Traffik Australian Coalition

77. Suara Perempuan Desa (Rural Women's Voices), Indonesia

78. SwedWatch

79. Tarangini Foundation, Nepal

80. Thai Lawyers for Human Rights

81. Trades Union Congress

82. Uniting Church of Australia (Synod of Victoria andTasmania)

83. Verité

84. Voice

85. Voice for Change, Jiwaka Province, PNG

86. Walk Free Foundation

87. We Women Sri Lanka, Sri Lanka

88. Women's League of Burma

89. World Organisation Against Torture (OMCT), within theframework of the Observatory for the Protection of Human Rights Defenders