Cambodians face sugar giant in Thai court

Despite being forced from her home in Cambodia without compensation and giving birth while imprisoned for speaking out, Hoy Mai believes she will finally receive justice after more than a decade when she appears in a civil court in Thailand.

Mai is expected to testify as a lead plaintiff in Southeast Asia’s first transboundary class action lawsuit as the case heads to trial in the coming months. The complaint brought by 712 Cambodians from northwest Oddar Meanchey province claims they were forcibly evicted by subsidiaries of Thai-based Mitr Phol Sugar Corporation between 2008 and 2009. 

As Thai companies invest across Southeast Asia, the country’s courts have accepted a handful of extraterritorial human rights lawsuits in the past 10 years attempting to hold corporations responsible for alleged abuses abroad.

Although implicated in domestic human rights abuses and seeking to erode human rights accountability by weakening civil society, Thailand has allowed class action lawsuits since 2015 and was the first country in Southeast Asia to publish a business and human rights action plan with a strategy to improve accountability in multinational corporations. 

The logistics of mounting trilingual lawsuits and navigating the laws of multiple countries present intimidating and costly barriers for would-be plaintiffs and support organisations, human rights groups said. 

Thailand’s Court of Appeals denied Mitr Phol’s motion to dismiss the Cambodian class action lawsuit in May, clearing the way for a trial. Mai and her fellow plaintiffs hope to set an important precedent by proving transboundary human rights lawsuits can be successful in Southeast Asia.

“What’s at stake here is really whether victims of abuse can secure justice when their own countries don’t have legal and judicial systems that protect their rights,” said David Pred, executive director of Inclusive Development International (IDI), which has supported the Cambodian plaintiffs.

Cambodian authorities shut down initial requests for assistance from villagers. Following the evictions, Mai walked more than 400 kilometres (248 miles) to Phnom Penh while pregnant to appeal directly to Prime Minister Hun Sen. Instead, Mai was locked away, spending eight months incarcerated and giving birth to her son behind bars.

“I expect we will get better justice than in the Cambodia courts,” Mai said. “[The Thai courts] can separate who did right and who did wrong.”

Three Cambodia-based subsidiaries, wholly or partially owned by Mitr Phol, received government land concessions in 2007 of nearly 200 square kilometres (77 square miles) overlapping homes, farms and community forests legally owned by Mai and others in Oddar Meanchey. 

Mai and her fellow village leaders appealed to authorities and the companies, but said they were met with harassment and hostility before and after the evictions. 

Mon Srey, then a teenaged resident of O’Bat Moan village, recalled employees of Mitr Phol subsidiary Angkor Sugar dragging her away before pouring gas and lighting her house on fire. The flames engulfed her family’s documents, photographs, clothes and other possessions.

“They burned anything we could not collect in time,” she said. Realising compensation would not be granted and without additional farmland to support her, Srey spent the next nine years working illegally in Thailand along with many of her neighbours.

Cambodian authorities provided 312 displaced families with a concession of 2 hectares (5 acres) of land in 2018. Like others who moved abroad, Srey missed the opportunity. Villagers who received land said the plots were not sufficient to earn a living and did not compensate for their losses, with each family previously holding an average of 5 hectares (12 acres).

Without a class action available to the plaintiffs, they would have a very difficult time accessing justice as individuals and would be deterred from doing so”

Eang Vuthy, EC Executive Director

Mitr Phol, a sugar supplier for Coca-Cola Co. and Nestle S.A., has not provided compensation to all affected villagers. Only 14 households from O’Bat Moan village received 1 hectare (2.4 acres) of land each in a remote area, according to IDI. 

An email from Mitr Phol said the company’s actions in Cambodia were “in compliance with all local and national laws.”

Pred said IDI unsuccessfully tried to convince customers and industry groups to sanction Mitr Phol and pressure the company into compensating villagers. Villagers filed a grievance in 2011 through sustainable sugar governance group Bonsucro, but Mitr Phol withdrew from the international organisation rather than engage the complaint, only to rejoin Bonsucro in 2015.

Bonsucro Communications Manager Liz Foggitt stated there is no “cogent evidence” Mitr Phol violated the organisation’s policies. She added Bonsucro is improving its organisational guidelines to “strengthen human rights and decent work in sugarcane farming and milling.”

The National Contact Point for Responsible Business Conduct, a U.K. government investment watchdog, in January found Bonsucro failed to enforce its guidelines and international trade standards in the Mitr Phol case after Bonsuscro dismissed a second IDI complaint.

IDI and Phnom Penh-based NGOs Licadho and Equitable Cambodia (EC) helped villagers file a 2018 class action lawsuit against Mitr Phol in Thailand.

“Without a class action available to the plaintiffs, they would have a very difficult time accessing justice as individuals and would be deterred from doing so,” EC Executive Director Eang Vuthy said.

A Thai civil court initially dismissed the case in 2019, partly on the grounds of difficulty processing paperwork in Thai and Khmer, according to Sor Rattanamanee Polkla, one of the villagers’ lawyers and founder of Bangkok-based Community Resource Centre.

Plaintiffs in the Mitr Phol case have benefited from aspects of Cambodian law, which had a longer statute of limitations than Thailand’s one year, Polkla said. 

The case was allowed to move forward on appeal in July 2020. 

Thai courts and officials struggle to be convinced they have jurisdiction to handle alleged abuses abroad by Thai companies, according to Sanhawan Srisod, a Thai lawyer who authored a 2021 report on Thai extraterritorial human rights abuses for the International Commission of Jurists, a Switzerland-based NGO. 

Thai judicial institutions often lack the capacity and training to handle these cases, while lawyers and plaintiffs may be stymied by the preparations for a transboundary lawsuit, Srisod said.

Legal documents in the Mitr Phol case must be translated into English, Thai and Khmer, requiring considerable time and money, said Polkla, who has worked with interpreters to gather testimony and argue across the Thai and Cambodian legal systems in partnership with Cambodian lawyers.

Prior to the Mitr Phol case most transboundary lawsuits against Thai companies concerned environmental and social impacts from Thai hydropower dams in Laos, such as the Xayaburi dam, Polka said.

Thai administrative courts have issued conflicting rulings on whether they can adjudicate complaints against state-owned enterprises. Lawsuits against private Thai companies such as Mitr Phol are generally straightforward and proceed through civil court, though they are still legally difficult, Srisod said.

“According to the Thai Conflict of Law Act, to be able to be convicted for a tort case like this, you need to prove that the plaintiff violated Cambodia law and, at the same time, they also violated Thai law,” Srisod said. “They have a very high bar.”

While the Mitr Phol lawsuit will proceed, many alleged abuses by Thai multinationals are unlikely to be heard in court, Srisod said.

“[Potential plaintiffs] don’t have any means to come to Thai court, they don’t know whom they should contact, they don’t know whom they should reach out to, to bring the case to court in Thailand,” Srisod said, adding that few Thai lawyers are aware of class action lawsuits, which mainly have been applied to consumer cases.

Thailand’s human rights action plan pushes Thai investors to require international clients to perform human rights due diligence, establishes measures to prevent abuses by Thai companies abroad and calls for a fund to assist victims of abuses.

The United Nations Development Programme contended the plan is a model for holding Southeast Asian multinationals accountable, but concluded in a June report that the initiative has “not reached business enterprises in meaningful ways.”

The report criticised the United Nations Guiding Principles for not codifying extraterritorial human rights obligations.

Thailand is starting to realise it has extraterritorial obligations to the human rights abuses committed by its corporations in other countries”

Sanhawan Srisod, Thai lawyer

The second principle notes countries “are not generally required under international human rights law to regulate the extraterritorial activities of businesses,” leaving states free to ignore corporate abuses outside their borders.

Thailand’s National Human Rights Commission, which has investigated alleged extraterritorial abuses, found in 2015 that Mitr Phol was responsible for violations in Cambodia and should compensate villagers. Similar to government-supported commissions in Indonesia, Malaysia and the Philippines, Thai human rights investigators cannot issue penalties.

“I think Thailand is starting to realise it has extraterritorial obligations to the human rights abuses committed by its corporations in other countries,” Srisod said. “So they took some steps but they still have a long way to go to be able to provide effective protections to the victims of human rights abuses in other countries and to provide them with justice.”

Surrounded by cassava fields on the small plot of land she reclaimed from Mitr Phol’s subsidiaries, Mai said she hopes the case in Oddar Meanchey will bring more human rights accountability and fair compensation for her community.

“I won’t stop,” she said. “I will keep fighting to help my people.”

Photos by Jack Brook for Southeast Asia Globe