The following is based on a communication written by the UN Special Rapporteur on Human Rights Defenders and other UN experts to the Government of Thailand on 19 December 2022. The communication remained confidential for 60 days before being made public, giving the Government time to reply. The Government acknowledged receipt of the communication on 3 January 2023. Regrettably, the Government did not address the questions and concerns expressed in the communication.
This is a shorter version of the original communication.
Topic: Mr. Sunai Phasuk and Ms. Waraporn Utairangsee, Thai human rights defenders who are being investigated and charged, respectively, by the Royal Thai Police under Thailand’s Computer Crime Act and Criminal Code for two completely different offenses that are linked to their work on the protection of victims of torture and indigenous rights.
Mr. Sunai Phasuk is a senior researcher on Thailand at Human Rights Watch’s (HRW) Asia division. Mr. Phasuk is a prominent human rights defender who has vast experience working with government agencies and civil society on investigation and analysis of human rights violations in Thailand, including cases of torture and enforced disappearances.
Ms. Waraporn Utairangsee is a well-known female human rights lawyer affiliated with the Lawyers Council of Thailand and the co-founder and lawyer of her private law firm. For many years, Ms. Utairangsee has been working to assist women subjected to domestic violence and gender-specific abuses, land and environmental rights defenders as well as indigenous communities in Thailand. Between 2011 and 2012, Ms. Utairangsee was selected as a member of the Sub-Committee on Human Rights of the Lawyers Council of Thailand, working on cases of stateless persons, migrant workers, internal displacement people, and non-Thai citizens.
The case of Sunai Phasuk
On 11 October 2022, Mr. Phasuk received a summon warrant to report himself to the Cyber Crime Investigation Bureau (CCIB) of the Royal Thai Police (RTP) and to be interviewed as a witness regarding a tweet on his personal Twitter account where he alleged that a political activist was subjected to torture during his arrest by police officers following a rally held in front of the Din Daeng Police Station in Bangkok on 29 October 2021.
On 31 October 2022, Mr. Phasuk reported himself at the CCIB as summoned. The Police Commander of the CCIB held a short meeting with him and police officers from the CCIB to explain the case to Mr. Phasuk. According to the police officers from the CCIB, this case was filed by the Bangkok Metropolitan Police with the CCIB, drawing on the Facebook post by the Anti-Fake News Center of the Ministry of Digital Economy and Society (MDES) on 2 November 2021 that quotes Mr. Phasuk’s tweet and labels the torture allegation as “fake news”. Furthermore, Mr. Phasuk was informed by the police officer of the CCIB that the MDES’s Anti-Fake News Center has put together a dossier on Mr. Phasuk’s tweets that criticize police violence and other misconduct against pro-democracy protesters over the past year.
During the interview, the police officer at the CCIB asked Mr. Phasuk to verify that he had posted the tweet as accused by the Bangkok Metropolitan Police. Mr. Phasuk confirmed he posted the tweet which quoted a news report about the alleged torture of a protester at Din Daeng police station on 29-30 October 2021 and insisted on his status as a human rights defender.
Mr. Phasuk also testified that this torture case was investigated by the Ministry of Justice’s National Interim Committee to Receive Complaints and Investigate Allegations of Torture and Enforced Disappearance which found that the alleged victim was assaulted by police. This case is also under investigation by the Parliamentary Committee on Legal Affairs and Human Rights, as well as the National Counter-Corruption Commission.
Mr. Phasuk was informed by the police officer that the CCIB’s investigation will take around three weeks and that he could face charges under the article 14 (1) and (2) of the Computer Crime Act 2017 for uploading distorted information onto the internet which could lead to personal and public damages. If found guilty, Mr. Phasuk could face up to five years imprisonment or a fine up to THB100,000, or both.
The investigation against Mr. Phasuk was conducted very soon after the adoption of the Prevention and Suppression of Torture and Enforced Disappearance Act (which will come into force 120 days following its enactment on 25 October 2022) which protects people who report cases of torture. That protection, together with the State’s international legal obligations under the International Covenant on Civil and Political Rights (ICCPR) on freedom of expression, protect and uphold people’s right to raise issues of public concern.
The case of Waraporn Utairangsee
Between 5 and 9 May 2011, at least 20 families of Karen indigenous villagers, who had been living in the Kaeng Krachan National Park (KKNP) in Petchaburi province for generations, were allegedly forcibly evicted during an operation undertaken by the KKNP officials in coordination with the military and the police for allegedly encroaching on the National Park. During the operation, at least 98 houses and rice barns of the villagers were burnt down by the park officials.In the same month, the Karen villagers who were affected by the forced eviction operation sought assistance from the Sub-Committee on Human Rights of the Lawyers Council of Thailand to file a lawsuit against the park officials, including the former Head of the KKNP who led the operation in May 2011.
In order to assist the work of its Sub-Committee on Human Rights, the Lawyers Council of Thailand set up the “Working Group to Provide Legal Aid to the Karen Indigenous Villagers Who were Affected from the Park Officials Operation” on 26 October 2011. Ms. Utairangsee was appointed as a member and an assistant to the secretary of this Working Group. She still currently holds a membership on this Working Group.
On 4 May 2012, with the support from the Lawyers Council of Thailand, a group of six Karen villagers, as representatives of the Karen villagers from the KKNP, lodged a lawsuit with the Administrative Court against the Department of National Parks, Wildlife and Plant Conservation (DNP) of the Ministry of Natural Resources and Environment (MNRE) and the former head of the KKNP, and requested the Court to allow the villagers to return to live in the area for they had been living in the KKNP before it was declared part of the National Park in 1981.
On 19 October 2015, Ms. Utairangsee assisted a senior Karen villager from the KKNP in filing additional criminal complaints against park officials at the Kaeng Krachan Provincial Police Station for allegedly burning down the villagers’ houses and damaging the rice barns under sections 83, 157, and 217-218 of the Criminal Code. The police indicted and forwarded the case under section 157 to the consideration of the Office of Public Sector Anti-Corruption Commission (PACC).
Reportedly in 2016, the Administrative Court ordered the DNP to pay compensation to the group of six Karen villagers for the burning of their houses. In June 2018, the Supreme Administrative Court amended the ruling and ordered the DNP to pay additional compensation for each community member but did not allow them to return to their lands given the villagers did not have official land claims. In February 2021, the PACC pointed out grounds for guilt of the former Head of the KKNP, together with other six former KKNP officers, for wrongfully exercising his function under section 157 of the Criminal Code in relation to the illegal operation through arson in 2011 and suggested the MNRE discharge the former Head of the KKNP from his position. Consequently, in March 2021, the MNRE had dismissed him from his position at that time as the Director of the Administration Office of the 9th Conservation Area of Ubon Ratchathani province of the Department of National Parks, Wildlife and Plant Conservation of the MNRE. On 27 July 2021, he filed a perjury complaint against Ms. Uthairangsee for allegedly committing perjury by acting on behalf of six Karen villagers from the KKNP and filing a complaint against him for burning down the houses and rice barns in Karen village in the KKNP between 5 – 9 May 2011. He claimed that it was perjury because the houses were unoccupied when they were burned down and because the burning did not take place during the operation.
In January 2022, he allegedly filed a case in the Administrative Court in Petchaburi Province to overturn the decision of the PACC in February 2021 to discharge him from his position. On 29 September 2022, the Administrative Court in Petchaburi ruled in favor of overturning the decision of the MNRE to discharge him from his position and ordering the MNRE to reinstate him to his position. Consequently, in the same month, he returned to his position in the MNRE as the Administration Office of the 9th Conservation Area of Ubon Ratchathani province.
On 31 August 2022, after the case has been pending with the police investigation for more than a year, Ms. Utairangsee was summoned to acknowledge the charges of perjury causing damage to another person or with malicious intent (under section 137, 172, 173, 174 and 181 of the Criminal Code) at the Kaeng Krachan Provincial Police Station. As she refused to acknowledge that any offence had been committed, Ms. Utairangsee submitted a written testimony to the Kaeng Krachan Provincial Police Station on 7 November requesting further investigation. If found guilty, Ms. Utairangsee could face up to 15 years imprisonment and high fines. The case against Ms. Utairangsee is expected to be indicted by the police and forwarded to the Provincial Public Prosecutor in December 2022.
In the communication, we express our concerns about the investigation and charges against human rights defenders Sunai Phasuk and Waraporn Utairangsee, which seem to be directly related to the exercise of their freedom of expression.
We are particularly concerned about the investigation against Mr. Phasuk which is reported to be indicative of a continuous pattern of surveillance, investigations, arrests and detentions and judicial harassment experienced by many human rights defenders who have peacefully exercised their fundamental freedoms over the past years. We are concerned that it may send a strong signal to other human rights defenders that they too could be subject to serious judicial action if they were to be too critical on human rights issues, which is likely to have a significant chilling effect on their freedom of expression.
With regard to the investigation for perjury against Ms Utairangsee, we wish to express our concerns that the proceedings brought against her may be in retaliation of her legitimate human rights work and exercise of her legal profession. Lawyers are entitled to in order to perform their professional functions without any threat, intimidation, harassment or interference, and without suffering, or being threatened with, prosecution or any administrative or disciplinary sanctions for actions undertaken in accordance with professional duties and ethical standards. In circumstances in which lawyers may be prosecuted for crimes allegedly committed in the course of performing their duties, appropriate orders should be issued to prevent public prosecutors from maliciously prosecuting members of the legal profession who criticize State officials and institutions in the exercise of their independence and their freedom of expression (A/HRC/50/36).
We are also concerned about the tightening of restrictions on freedom of expression online in Thailand. Through the MDES’s Anti-Fake News Center and the Cyber Crime Investigation Bureau (CCIB) thousands of restrictive actions have reportedly been performed, such as the blocking of 4,735 URLs during the first nine months of 2022 in response to 183 court rulings. An important number of these restrictive actions were allegedly aimed at lèse-majesté (1,816 URLs). Further reports suggest that at least 154 individuals were charged in 174 cases under the Computer Crime Act 2017 between 18 July 2020 and 31 October 2022 in relation to their exercising fundamental freedoms.
Finally, we are also concerned about the apparent trend of increased number of cases of judicial harassment experienced by human rights defenders and indigenous persons who have been engaging with the government on compliance with issues articulated in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).