Justice system faces trial in Koh Tao murder case

Justice system faces trial in Koh Tao murder case

The Koh Tao murder hearings begin on Wednesday, but in addition to the defendants Zaw Lin and Wai Phyo and the situation of migrant workers, the fairness of justice also is in the dock. (Reuters photo)
The Koh Tao murder hearings begin on Wednesday, but in addition to the defendants Zaw Lin and Wai Phyo and the situation of migrant workers, the fairness of justice also is in the dock. (Reuters photo)

Prior to British tourists Hannah Witheridge and David Miller's heinous murders last September, migrant workers' presence and everyday lives on Koh Tao island were not publicly discussed. This situation abruptly changed once migrants were identified by case investigators as key suspects behind the killings.

For the Migrant Worker Rights Network (MWRN), this spotlight on migrants created opportunities to better understand the significant challenges these workers face across Koh Tao and the neighbouring islands of Koh Phangan and Koh Samui. This exploration supplemented the work of the legal defence team for Zaw Lin and Win Zaw Htun (Wai Phyo), the two 21-year-old Myanmar men eventually prosecuted for the killings.

As the trial of Zaw Lin and Wai Phyo approaches, it is worthwhile to consider the history of discrimination against and exploitation of migrants in Thailand and how this may have influenced the murder investigation and subsequent prosecutions. These considerations have ramifications on the potential to realise justice for the deceased, accused and their families as well as for migrant communities who are following the case closely.

Ongoing engagement with the smiling, youthful faces of Zaw Lin and Wai Phyo during humanitarian visits at Koh Samui prison and during hearings at Koh Samui court creates difficulty for observers to reconcile the horrific crimes the two are accused of with the small, friendly and seemingly innocent people they appear to be.

Understanding powerlessness and vulnerability of migrants across Thailand, when combined with widespread criticism of this murder investigation and allegations of powerful actors influencing developments continues to produce deep distrust or suspicion that the real people responsible for the killings have yet to be apprehended.

For over 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 provisions sometimes provided free of charge as well as tips and service charges can enhance migrants' saving potential while working across these islands.

Yet these workers continue to regularly face systematic rights violations at work including payment below the national minimum wage of 300 baht a day and 56 baht an hour for overtime, 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 whilst child or youth employment still exists. 

Migrants frequently don't possess official documents to ride motorbikes, sell goods or provide certain services. Corruption has become the norm as workers are frequently extorted for this weakness. Migrants could, however, previously purchase protection cards thereby allowing them to live relatively undisturbed island lives at a cost.

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 working for them and these workers must possess work and immigration documents. In reality, monthly protection fees were commonly paid by workers in lieu of this bureaucratic requirement.

This unsanctioned yet generally accepted employment and protection system of migrants on these islands was undisturbed even after the May 2014 coup. While the military government rapidly pushed for migrant regularisation across Thailand, in part because of potential impacts on trade from trafficking allegations, many migrants on Koh Tao and neighbouring islands remained undocumented. Protection cards continued to be used.

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 perceived risks of "illegal" migration to tourist safety. It also tried to address 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. More stringent application of regulations and increased presence of law enforcement officials resulted. Protection cards disappeared but informal payment systems and extortion remain. Whilst such changes had some positive effects, most law abiding and hardworking migrants now live in fear under heightened surveillance.

Two weeks into the murder investigation, police had yet to charge anyone with the killings. Amidst 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 to hold someone responsible for the high profile killings.  

Under pressure to make an arrest, officials frequently suggested the murders were committed by migrant workers. Blanket DNA testing of this community was then undertaken which led to fears migrants would be persecuted as scapegoats, given their relative powerlessness to fight back. Equally concerning, Koh Tao's migrant community revealed instances of alleged torture during investigation questionings.

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. 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 after being arrested, Zaw Lin and Wai Phyo told human rights monitors at Koh Samui prison that they were tortured following detention, prior to being handed over to investigation officials. A week later, both pleaded innocence to rights 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 the families of the deceased to minimise potentially inaccurate and sensationalistic reporting of the murders reflected concerns of a trial by public opinion for the accused and the Koh Tao murder investigation teams based only on information from media sources. However, as Zaw Lin and Wai Phyo were charged last December, judgement on the case is now up to the Koh Samui court in an 18-day trial that starts this month.

Genuine justice in this case can be achieved through ensuring a fair and transparent trial. 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 in Thailand, a fair and transparent trial is not a simple task.

One means of finding genuine justice in this case is through ensuring equality of resources for both the prosecution and defence teams. The defence team, made up of pro bono lawyers, faces an exceptional challenge with over a hundred 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 in court. 

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 lie in identifying, reaching and then protecting witnesses now 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 two innocent young men could be convicted and possibly executed for the murders while the real perpetrators live freely. In that case, there would be no justice for Witheridge and Miller and those who loved them but only two more victims in this disturbing and increasingly important case.

So it can minimise the risk of a miscarriage of justice, the MWRN continues to seek financial and practical assistance for Zaw Lin and Wai Phyo's pro-bono legal defence team. It wants to contribute to travel and accommodation costs for lawyers, witnesses and investigators for investigations, trial preparations and for the actual trial.

The MWRN wants to ensure that migrants, who contribute so much through their work and presence to the prosperity of Koh Tao, its neighbouring islands and Thailand generally, will feel justice is achieved from the Koh Tao trial.

In addition to the 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 Zaw Lin and Wei Phyo, 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).

Andy Hall

Writer

International affairs adviser to the Migrant Worker Rights Network (MWRN) and State Enterprise Workers Relations Confederation of Thailand (SERC).


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