Koh Tao case affects wider migrant community
Prior to the murder of British tourists Hannah Witheridge and David Miller last September, migrant workers' everyday lives on Koh Tao island were not publicly discussed. This situation changed once migrants were identified as the key suspects behind the killings.
For the Migrant Worker Rights Network (MWRN), this spotlight on migrants created opportunities to better understand the challenges these workers face across Koh Tao and the neighbouring islands of Koh Phangan and Koh Samui. This exploration supplemented work of the legal defence team for Zaw Lin and Win Zaw Htun (Wai Phyo), the two 21-year-old Myanmar men prosecuted for the killings.
As the trial of Zaw Lin and Wai Phyo approaches, a look at the history of discrimination against migrants in Thailand and how this may have influenced the murder investigation and subsequent prosecutions is worthwhile.
Understanding the powerlessness and vulnerability of migrants across Thailand — combined with widespread criticism of this murder investigation and allegations that powerful actors influenced developments — continues to produce deep distrust or suspicion that the real people responsible for the killings have yet to be apprehended.
For more than a decade, migrants have contributed significantly to tourism, construction and service sectors on Koh Tao, Koh Phangan and Koh Samui. In return, accommodation and food is sometimes provided free of charge and tips and service charges can enhance migrants' saving potential across these islands.
Yet these workers regularly face systematic rights violations including payment below the national minimum wage of 300 baht a day and 56 baht an hour for overtime; and working seven days a week without leave, no paid annual leave and no benefits on public holidays. Employers often ignore compulsory social protection and health schemes.
Migrants frequently fail to possess official documents to ride motorbikes, sell goods or provide certain services. Corruption has become the norm as workers are frequently extorted due to this weakness.
Migrants previously navigated unwritten rules of remote island culture which existed alongside the official yet rarely enforced state systems of migration management. Officially, employers must register all migrants they employ with work and immigration documents. In reality, monthly protection fees were commonly paid by workers in lieu of this requirement.
This unsanctioned yet generally accepted system for managing migrants on these islands was undisturbed, even after the May 2014 coup. While the military government pushed for migrant regularisation across Thailand, many migrants on Koh Tao and neighbouring islands remained undocumented.
During the early days of the investigation into the murders of Witheridge and Miller and following the arrest of "irregular" migrants suspected of the killings, the government sought to swiftly address the perceived risks of "illegal" migration to tourist safety and the resulting negative impact on the country's reputation in response to the media frenzy surrounding the killings that revealed many undocumented migrants working on Koh Tao.
Genuine migrant regularisation was finally undertaken on Koh Tao and neighbouring islands in October, resulting in more stringent application of regulations and increased presence of law enforcement officials.
Protection cards disappeared but extortion still remains. While such changes had some positive effect, most law-abiding and hard-working migrants now live under heightened surveillance.
Two weeks into the murder investigation, police had yet to charge anyone with the killings. Amid conflicting statements regarding evidence and suspects, the investigation appeared increasingly disorganised. Case investigators were criticised for alleged mishandling of forensic evidence, abuse of suspects and intimidation of witnesses. A shadow was being cast not only over the safety of tourism but also the reliability of the criminal justice system in Thailand in its bid to hold someone responsible for the murders.
Under pressure to make an arrest, officials suggested the murders were committed by migrants. Blanket DNA testing of this community was undertaken which led to fears migrants would be persecuted as scapegoats, given the communities' relative powerlessness to fight back. Koh Tao migrants revealed instances of alleged torture during the investigation.
In early October, authorities finally detained Zaw Lin and Wai Phyo as suspects for the murders. Both were working on Koh Tao to save money to support their families in impoverished Rakhine State, Myanmar. The two allegedly confessed to the murders during questioning and officials claimed the men's guilt was also established by "solid" forensic evidence linking them to the crime scene and Witheridge's body.
Yet several days later, both men told human rights monitors at Koh Samui prison they were tortured following detention, prior to being handed over to investigation officials. A week later, both pleaded their innocence to lawyers organised for them. Both alleged their heads were covered with bags to imitate suffocation while they were threatened with electrocution, burning and execution to elicit confessions. Misconduct of translators assisting investigators was also alleged.
A request from families of the deceased to minimise inaccurate and sensational reporting of the murders reflected their concerns of a trial by public opinion for the accused based only on information from media sources.
However, after Zaw Lin and Wai Phyo were charged, judgement on the case is now for Koh Samui court, starting on July 8.
Genuine justice in this case can be achieved through ensuring a fair and transparent trial. This is perhaps not a simple task, however, within the context of the challenges of the Thai justice system to achieve justice more broadly, the pride and reputation at stake in a closely watched trial and the historical position of powerlessness, discrimination and exploitation faced by migrant workers.
One means to ensure genuine justice in this case is through ensuring equality of resources for both the prosecution and defence. The defence team, made up of pro bono lawyers, faces an exceptional challenge with over 100 witnesses and thousands of pages of evidence, particularly forensic in nature, to be examined, understood in liaison with forensic and crime scene experts and then challenged.
Furthermore, difficulties are enhanced as the trial takes place on Koh Samui, an expensive and hard to reach island, and proceedings must be translated into three languages. Further financial and practical constraints are faced in identifying, reaching and then protecting witnesses residing outside of Thailand.
Ultimately, if the defence does not have the time and resources to prepare their case, or if their work is unfairly obstructed, there is a serious risk the two defendants could be convicted and possibly executed for the murders while the actual perpetrators live freely.
In such a case, there would be no justice for Hannah and David and those who loved them, just another two victims in this increasingly symbolic case. MWRN wants to ensure that migrants, who contribute so much through their work and presence to the prosperity of Koh Tao and Thailand in general, feel justice is achieved from the Koh Tao trial.
In addition to families and friends of all those concerned, Thailand's migrant community, frequently an underclass of hard working and silent individuals, has been deeply affected by the tragic deaths of Witheridge and Miller and the prosecution of their fellow nationals for the crime.
Andy Hall is international affairs adviser to the Migrant Worker Rights Network (MWRN) and State Enterprise Workers Relations Confederation of Thailand (SERC). Updates of the Koh Tao trials are available at https://www.facebook.com/andy.hall.3110 and on Twitter at @atomicalandy. He can be contacted at email@example.com.