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ICJ submits recommendations to strengthen Thailand’s Anti-SLAPP Law

Today, the ICJ submitted recommendations on strengthening Thailand’s Anti-Strategic Litigation against Public Participation (SLAPP) law to the Ministry of Justice, which is tasked to conduct a “study on the guidelines for development of laws, regulations or measures to prevent SLAPP,” in accordance with Thailand’s First National Action Plan on Business and Human Rights (2019 – 2022) (NAP).

Articles 161/1 and 165/2, which are intended to implement the NAP, entered into force on 20 February 2019 and 21 March 2019. They were introduced to end SLAPP lawsuits or similar forms of harassment through the legal process against any individuals, including human rights defenders. NAP also refers to the power of a public prosecutor under Article 21 of the Public Prosecution Organ and Public Prosecutors Act as another measure to prevent SLAPP lawsuits.

The use of SLAPPs and similar procedures frequently undermine human rights, including freedoms of expression, association and assembly and the right to political participation.  These are protected under Thailand’s Constitution and international human rights obligations.

In the letter, the ICJ expressed its concern that these laws were inadequate to prevent harassment through the legal process and SLAPP.  The ICJ therefore called for the adoption of a comprehensive stand-alone law, or the amendment of the Civil Procedure Code and the Criminal Procedure Code, to protect human rights defenders and others from harassment through the legal process.

Background

In an effort to give effect to the UN Guiding Principles on Business and Human Rights (UNGPs), on 29 October 2019, Thailand’s Cabinet approved and adopted the First National Action Plan on Business and Human Rights, making Thailand the first country in Asia to adopt the stand-alone NAP.

The NAP sets out plans to be followed by public and private stakeholders to ensure that businesses – from small and medium-sized enterprises to multinational corporations – respect human rights, and that the government fulfils its duty to ensure remedy and reparation in cases of business-related human rights violations.

The Thai government has identified in the NAP its four key priority issues: (1) labour; (2) land, environment and natural resources; (3) human rights defenders; and (4) cross border investment and multi-national enterprises.

NAP has set out several action points aimed at protecting human rights defenders, including:

  • to study the guidelines for development of laws, regulations or measures to prevent SLAPP;
  • to push for the review, amendment and repeal of relevant laws, mechanisms and protocols to facilitate protection of human rights defenders, for example with respect to witness protection laws;
  • to determine or review policies, protocols, procedures and mechanisms to protect human rights defenders, including women human rights defenders, and ensure their safe conditions of work, and to provide trainings for law enforcement agencies to ensure in practice these protection measures;
  • to provide trainings for law enforcement officers to widen their knowledge and understanding in enforcing laws on the protection of human rights, for example with respect to the organization of assemblies, and free expression pertaining to human rights, and preventing dishonest lawsuits that attack human rights defenders;
  • to provide trainings and enhance capacity of lawyers;
  • to urge businesses to ensure that human rights defenders will not be sued merely calling for rights of individuals to be protected;
  • to promote the use of reconciliation mechanisms at all levels of the justice system; and
  • to increase access to justice of human rights defenders.

However, NAP’s effectiveness is yet to be assessed because it does not have the status of a law, and is merely a resolution by the executive branch of the Thai government.  The NAP was adopted in the form of a Cabinet Resolution, which is considered a “by-law” in accordance with section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999).

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