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K
yi is proud of the achievements of the nongovernmental organization he co-founded and has been running in Myanmar, but he is far from crowing about these in public. Neither is he keen to expand his NGO’s operations just yet.
Kyi, who prefers to use a pseudonym, says that Myanmar’s government has a dislike for NGOs, journalists, or just about anyone “who can connect various issues, such as energy, with a rights-based perspective.” He says that it is better for his group to keep its head down while continuing its work, and hopes it doesn’t attract much attention.
Kyi is right to be cautious as many within his circle have been SLAPPed – challenged with Strategic Lawsuits Against Public Participation. Kyi himself isn’t familiar with the term, but its reality has been felt by his own NGO co-founder and fellow green advocates who have been arrested on concocted charges that were not even connected with their work.
Indeed, such suits usually contain little truths, and are meant mainly to dissuade critics from continuing their work by burdening them with costs of legal defenses. And while SLAPPs have been around for years, they have escalated in number in the last two decades or so. SLAPPs also used to be filed mainly by corporations against those deemed to be obstacles to their objectives, but governments are now getting in the act as well and wielding SLAPPs against their perceived critics.
Lady Nancy Zuluaga Jaramillo, senior legal researcher and project coordinator at the research group Business and Human Rights Resource Centre (BHRRC), says that SLAPPs have been on the rise across the world, including in Southeast Asia.
“Between January 2015 and May 2023, we tracked 474 lawsuits bearing the hallmarks of SLAPPs brought or initiated by more than 150 business actors,” she says. “The highest number of cases occurred in Latin America (170), followed by Asia and the Pacific (126). In Southeast Asia we have identified cases in Thailand, Cambodia, Indonesia, Malaysia, Vietnam, and the Philippines.”
Except for Brunei, all the constitutions of Southeast Asian countries guarantee the rights to freedom of expression, peaceful assembly, and association. But SLAPPs have been on a rise in a region where there is now an increasingly shrinking civic space. These predatory and retaliatory lawsuits are also especially difficult to combat because they masquerade as legitimate legal claims.
Uneven legal terrain
Yap Lay Sheng, human rights defender associate at Fortify Rights, a non-profit organization seeking to protect rights defenders, notes that the majority of Southeast Asian states are signatories to the International Covenant on Civil and Political Rights (ICCPR). The Covenant explicitly protects the rights to freedom of expression, association, and peaceful assembly under Articles 19, 21, and 22.
Among the region’s 11 countries, however, only the Philippines, Thailand, and Indonesia have regulations dealing with SLAPPs, and to varying degrees. Among these countries, only the Philippines has rules defining what a SLAPP case constitutes, but only in connection with environmental laws, rights, and concerns.
Similarly in Indonesia, the anti-SLAPP provisions are limited to cases related to environmental issues. In both countries, thus, activists in other domains may remain susceptible to SLAPPs.
In Thailand, the anti-SLAPP measures are confined to criminal suits initiated by a private complainant, such as an individual or private entity, and exclude civil lawsuits or criminal actions brought by a public prosecutor.
“States have an obligation under international law to take decisive action to prevent SLAPP tactics,” Yap remarks. “Governments can deter the filing of SLAPPs by taking two key measures. One, enact anti-SLAPP laws to make it harder for SLAPPs to proceed and empower the judiciary to dismiss frivolous claims. Second, states must strengthen legal protections and safeguard whistleblowers. More legal support must be provided for those targeted by SLAPPs.”
Yet, many governments have so far not only failed to protect SLAPP victims. According to Norly Grace Mercado, Asia regional director at 350.org, which seeks to support grassroots movements to end the use of fossil fuels, environmental and climate defenders in several Southeast Asian nations are being slapped with SLAPPs by governments “with increasing ease.”
“Authorities hold private information about individuals, usually through intelligence gathering and other means that employ powerful state machinery,” Mercado says. “This information is then exploited to file SLAPPs as a way to persecute activists or silence critical voices, in the guise of charges ranging from those relating to ‘tax evasion’ (Vietnam), ‘insulting the king’ (Cambodia) and ‘rebellion’ or ‘terrorism’ (Philippines).”
Suttikiat Khotchaso from the EnLAWTHAI Foundation, a non-profit organization advocating for environmental justice and human rights, is seeing the same trend in Thailand. “SLAPP filed by state agencies in Thailand since the COVID-19 pandemic has prosecuted the individuals and groups charged under the Emergency Decree in all areas of Thailand as well as the effect of regulations, announcements, and orders issued thereunder,” says the Bangkok-based lawyer.
“Those facing prosecution solely for peacefully exercising their human rights for alleged violation of the Emergency Decree. Nevertheless, the Public Assembly Act is one of the tools the state uses to prosecute protesters – which are the communities or the groups (that) oppose state development projects.”
In Vietnam, between 2021 and 2023, high-profile climate activists – among them Mai Phan Lợi, Đặng Đình Bách, Ngụy Thị Khanh, Hoàng Minh Hồng, founders and executive leaders of their own registered non-profit organizations – were charged with tax evasion, even as the law on tax for non-profit entities remains vague.
In September 2024, in a closely held and hasty trial, Ngô Thị Tố Nhiên was sentenced to three and a half years for misappropriation of state documents. These cases were brought about by the Vietnamese Ministry of Public Security.
“The practice of filing SLAPPs against climate defenders, whether by companies or state actors, are human rights violations that have no place in a world that needs democratic space and greater public participation to fight the climate crisis,” says Mercado.
Creating SLAPP shields
In a 2020 report, BHRRC listed three elements of a business-linked SLAPP case. First, SLAPPs cover civil, administrative, and criminal lawsuits. Second, the targets often include human rights defenders (HRD) who exercise their freedom of expression, association, and peaceful assembly to participate in, comment on, or criticize matters of public concern pertinent to business operations.
Finally, the purpose of such cases is nothing other than to silence HRDs from pursuing the issues.
SLAPPs initiated by a company or an individual are also usually filed in the multiples and in sites far from the target’s home or office, apparently for maximum inconvenience and expense on the part of the latter. When initiated by state actors, targets are often made bankrupt or forced to close down; individuals who are SLAPPed usually end up behind bars as well.
BHRRC’s Jaramillo stresses a multistakeholder approach when it comes to legal empowerment. First, she says, it is important to promote anti-SLAPP legislation that protects human rights defenders and civic freedoms, including procedures allowing the early dismissal of SLAPPs, recovery of court costs for the defendants, and penalties for SLAPP users.
“States should reform any laws that criminalize freedom of expression, assembly and association, and pass and implement legislation recognizing the right to defend rights and committing to zero-tolerance for attacks,” says Jaramillo. She advocates as well for training among the legal community and the judiciary about identifying this tactic and the actions that should be taken to prevent and address it. “The legal community should also avoid counselling and representing companies in SLAPP suits,” she adds.
At the same time, Jaramillo says that it is indispensable to involve companies in advocacy work. She argues, “As part of the needed actions, we have called on companies and investors to adopt and implement policy commitments recognizing the valuable role of defenders, referencing specific risks to defenders, ensuring effective engagement and consultation with defenders at all stages of the due diligence process, and committing to zero-tolerance for reprisals throughout their operations, supply chains, business relationships and investments.”
She adds: “Investors should review potential investees for their history of SLAPPs and avoid investing in companies with a track record of SLAPPs.”
A global battering ram
In the meantime, international support is proving crucial to supporting rights defenders of all stripes who work in repressive environments where legal support is scarce.
Rebecca Iwerks, director at the Global Land and Environmental Justice Initiative at Namati, whose goal is to put “the power of law in the hands of people,” highlights the importance of educating donors to adjust funding policies in light of multilayered challenges facing eco-defenders in particular.
“Eco-defenders who are at risk need flexible, unrestricted funding to respond to the threats and continue their pursuit of environmental justice,” says Iwerks. “There is often a link between reprisals and their pursuit of justice, but too often funding puts a red line as if these are two different areas of work. Donors can help by making sure their funding gets to the frontlines with flexibility.”
For her part, Mercado of 350.org says that one of the most effective ways to pressure governments to drop charges or release local activists is to mobilize global citizens to pressure other governments to speak up, especially in contexts where civic space is restricted and repressed.
“It is important for global organizations like 350.org to be that platform for solidarity, especially since climate activism goes beyond national borders,” she says.
“In this moment of crisis where every fraction of a degree in rising global temperatures matters, the work of climate defenders in one country has enormous benefits for the entire planet, and should be supported through all possible means.”
Mercado shares the lesson learned from the global campaign for the release of Vietnamese climate activist Hoàng Thị Minh Hồng, a victim of a government-induced SLAPP. Charged with tax evasion, Hồng was handed a three-year jail term and a fine of VND 100 million (US$4,000) in 2023. She was released ahead of schedule in late 2024, and has since sought exile in the United States.
“In Hồng’s case, more than 9,000 people from 55 countries signed petitions calling on the Vietnamese government to free Hồng, and the U.S. State Department released a statement voicing their concern,” Mercado says. “We also utilized the processes of the U.N. Human Rights Council (UNHRC) to advocate for the release of Hồng, as well as other climate defenders in Vietnam who remain in prison.”
Says Mercado: “We believe that the UNHRC is still a very important platform to shine light on SLAPPs being filed against climate and other environmental defenders, and move intractable governments into action.” ◉
Nguyện Công Bằng is an independent journalist who writes about Southeast Asia.
