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Opinion

Legal remedies do not only mean compensation - they mean prevention

Business & Human Rights Resource Centre

Sor.Rattanamanee  Polkla is the co-founding director of Community Resource Centre (CRC) in Thailand – an NGO working with communities affected by large and small development projects.  CRC was founded in 2010, and it is staffed by 4 full time lawyers.  The organization takes on cases covering a variety of issues, including mining, biomass, dam, access to water and land rights.

What are the main legal remedies or tools available to you in seeking to hold companies accountable for human rights abuses?  What are the biggest gaps?

In Thailand, the most common legal tool we have is tort law, and we use this for almost every abuse, but we can also use the criminal court. 

When we talk about legal remedies, it does not only mean compensation, it also involves prevention – stopping an abuse before it happens.

Under tort law, however, we cannot file a case until an abuse has already happened.  For example, if we know of a development project being built by a company which could potentially cause harm to a community, we cannot ask the company directly to stop the project.  But, we do have another option. Most of the development projects must get licenses or permission from the government, and in these cases we can use another legal tool to protect vulnerable communities – the administrative court. We can file a case asking the government to suspend or withdraw the company’s license, or permission.  This is the preventative way to protect people.  Here, we can stop a project before the abuse happens. 

We do not have a direct avenue for seeking a protective remedy directly from a company.  Using tort law, if abuses happen during the construction of a project, we can go to court to ask the company to stop, but that can only happen after the harm has occurred.  When we use the administrative court, it means we are petitioning the government, so the government is the defendant.  If we use the criminal court, we can file a case against a company but this option is very limited.  In Thailand, a corporation is a separate legal entity, and therefore corporations cannot be held criminally liable.  For a corporation, the penalty faced, if found liable under criminal law, is just paying a fine or pay compensation under tort law by civil cases.  This seems very small in comparison to some abuses.  You can charge an individual manager or a board member of a company under criminal law, but you must show that the manager or board member had direct knowledge of the crime, or of the harmful activity.  This standard of proof is quite high, and there are few laws that we can use for criminal cases regarding these abuses.  There is the Enhancement and Conservation of the National Environmental Quality Act B.E. 2535 that imposes criminal charges for environmental violations.  Although, in my experience, I have never seen any company punished under criminal law for human rights abuses or violations of environmental legislation.

We can also file a case with the National Human Rights Commission (NHRC), but they do not have power to punish a company.  However, they can investigate and compel other government agencies to come and provide information.  NHRC’s investigations can yield evidence that we can later use in judicial cases. 

Another tool we use is the media.  We ask the media to interview a company, asking about a particular project.  This becomes like another investigation that we later use to build evidence for a case.  Thailand also has a freedom of information statute, but this doesn’t usually yield very useful information.  We do sometimes face the risk of defamation lawsuits as retaliation from companies, but if we can prove that the issue raised is one of public interest, that is a defense to the defamation charge.

What challenges (legal or practical) do you face in seeking to hold companies legally accountable in Thailand?  Do you think there has been any progress in this area in your country?

We do not have a specific law to hold companies legally accountable for human rights abuses, as they do in Europe. 

The laws just cover good corporate governance, but it isn’t anything we can use to hold a company accountable for abuses.  All we have is general tort law.  We also have the Enhancement and Conservation of the National Environmental Quality Act B.E. 2535 at our disposal. 

One of the practical challenges we face is due to the fact that we are working as a legal aid organization.  This means we receive funds from donors, but this does not cover all of our needs.  We only have four lawyers working for CRC and often we need to ask others for help, but we cannot compensate them.  Despite this, we really want to continue taking on cases to help protect communities.

We have seen a lot of cases filed by companies against communities who protest development projects both small and large.  CRC works to protect these communities.  We have much more work than we can do ourselves. 

Another challenge we face is the military.  When we are working on a case, many of the companies we are investigating also have the military working with them.  Therefore, personal security is also an issue for us.  I have experienced the military going to villages in where I worked in the past with my photo and asking the villagers what I have been saying to them. 

I think things related to corporate legal accountability are moving backward rather than forward in Thailand particularly because of last year’s military coup. 

What are consequences or repercussions have you encountered as a result of your advocacy for human rights?

After the Thai coup, I was targeted by the military.  Military came to a client meeting of ours and said that I needed to get official permission to the gather a group of that size together.  The soldiers also sit through their community meetings.  The military seems more interested in protecting the development projects than the Thai people. 

Do you ever collaborate with lawyers from other countries?  If so, how?

I am a member of Mekong Legal Network, a network of lawyers established by EarthRights International. The network is made up of lawyers from six different countries from the Mekong region, and we meet with each other periodically.  If we find a trans-boundary case, we work together to develop legal strategies.  For example, in the Koh Kong Sugar case involving allegations of abuse at a Cambodian sugar plantation with Thai companies, I am working in Thailand with the NHRC and my Cambodian colleague is working in Cambodia to try to find a solution for the affected communities in this case on our respective countries. 

Also, with regards to mining activities in Myanmar, I have met with the lawyers working on issues related to the negative impacts of mining on local communities, and they are interested in filing a case in Thailand.  First, we will probably file a petition with the NHRC, and then perhaps we will able to file lawsuits.

What can the international community do to help?

There are two things the international community can do to help.  First, for local cases being litigated in Thailand that are not linked to other countries, we need support in the areas of legal expertise and technology.  For example, we often need outside assistance to help with issues of proof of environmental damages in pollution cases.  In one case, there was an oil spill in the Gulf of Thailand, and this was the first time we were dealing with this type of case.  We know that in Australia and the United States, there are lawyers with experience in litigating oil spill cases, and it would have been helpful to have their expertise in Thailand. 

The second area in which the international community case help has to do with foreign investors in Thailand.  How can we get foreign companies to respond to reports of abuse?  We need international friends to support us to get the foreign companies to respond by placing additional pressure on the companies involved so that they cannot ignore the issue.  Even in cases where we have Thai laws covering the abuse in question, sometimes the foreign companies do not respond, and we need international help to pressure the foreign investors.  Often it is not easy to get the companies to respond if we do not have pressure from others in the international community outside Thailand.  Sometimes we need international friends to support other options for filing a case against a foreign company in their home country, or the use of tools in their region or home country to seek protection and remedy.

What would be your main message to the business community regarding accountability for human rights abuses?

We need responsibility from the business community.  We are a developing country and understand the need for development projects, but we also want businesses to protect and respect the people, to understand the people.  The business community must respect a community’s right to self-determination.  Sometimes businesses come to rural villages and the local population does not want the businesses to be there. It is difficult for a business to accept such things.  The first priority of the business community should be social responsibility; it should be implemented as law.  If the responsibility is just voluntary, then they don’t do anything.  But if it is an enforceable law, we are more likely to see businesses behave responsibly.  We would like to see “clean” companies – companies that will behave properly.