Malaysian Bar : - Defend human rights defenders and safeguard migrant workers (21/2/2011)

Press Release: Defend human rights defenders and safeguard migrant workers

Monday, 21 February 2011 10:55am

Asahi Kosei (M) Sdn Bhd’s threat to bring a RM10 million defamation lawsuit against Charles Hector, a Member of the Malaysian Bar, is a deplorable and coercive act.  The Japanese-owned Malaysian company has demanded this sum over a blog article by Charles Hector in which the latter alleges that, in response to grievances raised by 31 of their workers from Myanmar, the company threatened the workers with termination of employment and possible deportation back to Myanmar.  The complaints ranged, it was alleged, from non-payment of agreed wages, unlawful deductions, and monetary penalties for absences from work. We call on both the Malaysian and Japanese authorities to launch immediate investigations into the authenticity of the allegations that Charles Hector has brought to light, and to act immediately to prevent the committing or continuation of any human rights abuses against migrant workers. Instead of harassing them and threatening them with incarceration, sedition or, in this case, defamation, state and non-state actors would do well to study the allegations made by human rights defenders like Charles Hector on behalf of voiceless migrant workers.  They should also carefully study the terms and conditions of work to which migrant workers are subject, the conditions under which they live, and the restrictions under which they are placed, to ensure that these conform to internationally-accepted standards. The case also brings to light the practice, permitted by the Immigration Department and the Ministry of Human Resources, of allowing selected companies who have no labour operations themselves to nonetheless recruit foreign workers from overseas, and then to outsource these workers to third parties for a fee.      To avoid any further incidents of abuse against migrant workers, or allegations of the same, the Malaysian Bar calls upon the Government to quickly ratify and implement the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was adopted by the UN General Assembly on 18 Dec 1990, and to give full effect to the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, made on 13 Jan 2007.   The Malaysian Bar also calls on the Government to support and uphold the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, otherwise known as the Declaration on Human Rights Defenders, which was adopted by the UN General Assembly on 9 Dec 1998.  In particular, we urge the Government to take all necessary measures to ensure the protection of these human rights defenders from any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in the Declaration. This incident gives the Government a clear opportunity to improve its less-than-sterling record of protecting those who stand up for human rights. Ragunath Kesavan President Malaysian Bar 21 February 2011

Myanmar workers’ problems: Stop intimidation of activist blogger

Over 70 civil society groups have issued a joint statement  calling on a Japanese multinational corporation to stop intimidating activist-blogger Charles Hector, who had highlighted the plight of Myanmar migrant workers in the company’s plant in Malaysia. The Asian Human Rights Commission has separately expressed its outrage. 

We, the undersigned civil society groups, are gravely concerned over the demands and threat of legal action for defamation against human rights lawyer, activist and blogger Charles Hector by Asahi Kosei (M) Sdn. Bhd. According to a letter to Hector from the firm’s lawyers dated 11 February 2011, the company is demanding RM10 million from him within seven days as damages for libel. Failing which, he is being threatened with a defamation suit.

The company was reacting to postings in Hector’s blog that highlighted the plight of 31 Burmese migrant workers in Asahi Kosei who raised their grievances to their employer, and the reactions thereafter that included threats, termination and even attempted deportation back to Burma, Asahi Kosei is also demanding from Hector the removal of the blog postings and a public apology to the company to be published on his blog and in all major national English newspapers.

According to the joint media statement titled “Asahi Kosei (M) Sdn. Bhd must respect Human Rights and Workers’ Rights. Reinstate Thiha Soe and Aung San without Loss of Benefits” which 82 migration and human rights organisations worldwide have endorsed (as at 16 February 2011), the Myanmar workers had made many complaints regarding non-payment of agreed wages and unlawful deductions from their wages as well as alterations of terms and conditions of work.

The workers, who confirmed the facts of their complaints, also alleged that they had been harassed by management “agents” (employees) and forced to agree to unfavourable terms and conditions including paying a penalty of RM50 per day of absence (RM50 for two days under new contract terms), which was far more than their basic pay of RM20 per day (RM23 per day under new contract terms). The workers also wanted paid medical leave, which is an entitlement in law. The migrant workers concerned were also preparing to lodge a complaint with the Labour Department to help resolve the problems they claimed to face.

Hector disclosed in a blog posting on 15 February that he had sent two e-mails on 8 and 9 February to the company raising the workers problems with them but he did not receive any reply from Asahi Kosei to refute the contents of the two e-mails or to deny its involvement in the dispute. Sadly, the company’s first and only response was made through its lawyer’s letter of 11 February, as mentioned above.

Asahi Kosei also claimed through its lawyers that it is not the employer of the Myanmar workers concerned and has no obligation to pay their wages directly to them or to supply accommodation or household appliances and utilities to them. The firm claims that the outsourcing agent (who has not been identified by the company) is the real employer of the migrant workers and thus has responsibility over them.

Asahi Kosei, therefore, alleges that Hector has committed libel by publicising the issue in his blog and naming the firm as the employer of the Myanmar migrant workers concerned.

We, the undersigned groups, call on Asahi Kosei (M) Sdn. Bhd. to review and withdraw its demand and intended legal action against Charles Hector. It is against public interest to go after human rights activists, bloggers and media personnel who highlight any alleged human rights violations. Moreover, the company was given the opportunity to inform Hector of any inaccuracies in the information given to him when he made enquiries in two emails to the firm. The company has not explored all avenues in resolving the problem faced by the workers amicably before resorting to this demand and threat of legal action; it should focus its attention on resolving these problems.

In our view, Asahi Kosei’s action is unreasonable, arbitrary and heavy handed; aimed at the suppression of free expression and workers’ complaints. The company also appears to be pushing its responsibility for the workers to a dubious unknown and unnamed party and, directly or indirectly, obstructing the right of workers to legally resolve their labour problems through the proper channels available to both workers and employers.

It would also be commendable for Asahi Kosei to immediately reinstate the two workers and engage in the dispute resolution process according to Malaysian labour laws, with Labour Department intervention as legally provided in this country.

Likewise, we urge all employers to engage in the dispute resolution process according to employment legislation and to adhere to all relevant labour and other legislation in Malaysia which apply to local as well as migrant workers in this country. Employers should recognise and respect the rights of all workers, their human rights and human dignity.

We reiterate that all workers, including migrant workers, are human beings with inherent rights and fundamental freedoms. They are not commodities to be imported, exploited and deported at the whims of employers or their recruitment and outsourcing agents.

16 February 2011

Endorsed by:

1. Aliran
2. MagickRiver
3. Centre for Policy Initiatives
4. Centre for Orang Asli Concerns
5. Parti Sosialis Malaysia
6. Saya Anak Bangsa Malaysia (SABM)
7. Civil Society Committee of Lim Lian Geok Cultural Development Centre
8. LLG Cultural Development Centre Bhd
9. Persatuan Pendidikan Sekolah-Sekolah Persendirian (Cina), Pulau Pinang
10. Borneo Resources Institute, Malaysia (Brimas)
11. Citizens International (Penang)
12. Asian Migrants Centre
13. Building and Woodworkers International (Switzerland)
14. Women Institute for Reseach Development and Advancement (WIRDA)
15. International NGO Forum on Indonesian Development
16. Writers Alliance for Media Independence (Wami)
17. Persatuan Kesedaran Komuniti Selangor (Empower)
18. Thai Committee for Refugees (TCR)
19. Human Rights Education Institute of Burma
20. Human Rights Working Group-Indonesia
21. International Movement for a Just World
22. Norwegian Burma Committee
23. Workers Assistance Center, Philippines
24. Semarak Cerlang Nusa – Consultancy, Research, Education for Social Transformation (SCN-CREST), Indonesia
25. Commission for the Disappeared and Victims of Violence (KontraS), Indonesia
26. Judicial System Monitoring Programme (JSMP), Timor Leste
27. Union Network International-Malaysian Liaison Council (UNI-MLC)
28. Free Burma Coalition – Philippines (FBC-Phils)
29. Initiatives for International Dialogue (IID), Philippines
30. KKSP Foundation, Indonesia
31. Health Equity Initiatives
32. Migrants Trade Union (MTU)
33. NGOs in Myanmar Web Portal
34. Myanmar Youth Knowledge Initiative
35. SOS (Save Ourselves), Penang
36. Penang Watch
37. MEO-Net
38. Forum for Democracy in Burma
39. Project Maje, Portland, Oregon, USA
40. MAP Foundation, Thailand
41. Burmese Relief Center, Japan
42. Migrante International, Philippines
43. Bar Council Malaysia
44. Koalisi Perempuan Indonesia Untuk Keadilan dan Demokrasi (Indonesian Women’s Coalition for Justice and Democracy)
45. Lee Siew Hwa, blogger
46. Consumers’ Association of Penang
47. Sahabat Alam (Friends of the Earth) Malaysia
48. Third World Network
49. Teras Pengupayaan Melayu
50. Think Centre, Singapore
51. Khmer Institute of Democracy
52. Publish What You Pay,  Indonesia
53. Chin Democracy and Human Rights Network, South Korea
54. Solidaritas Perempuan-Women’s Solidarity for Human Rights, Indonesia
55. Yaung Chi Oo Workers Association (YCOWA)
56. Centre of Democracy and Human Rights Studies (Demos), Indonesia
57. Burma Partnership
58. Task Force on Asean and Burma
59. Solidaritas Indonesia untuk Burma (SIB)
60. Mario Art, Blogger, www.martoart.multiply.com
61. Women’s Aid Organisation (WAO)
62. Housing Rights Task Force Cambodia
63. Transient Workers Count Too (TWC2), Singapore
64. The National Human Rights Society (Hakam)
65. Persatuan Kesedaran Komuniti
66. Cambodian Centre for Human Rights (CCHR)
67. Pergerakan Indonesia
68. Human Rights Education Institute of Burma (HREIB)
69. Centre for Trade Unions and Human Rights, Philippines
70. Centre for Human Rights of Islamic University of Indonesia/Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia (Pusham UII)
71. Cambodian Human Rights and Development Association (Adhoc)
72. Burma Centre, Delhi
73. Myanmar Ethnic Rohingya Human Rights Organisation Malaysia (Merhrom)
74. MAUAH (Working Group for Asean Human Rights Mechanism, Singapore)
75. Tanjung Bunga Residents’ Association (TBRA)
76. People’s Forum on Burma, Japan
77. Burmese Rohingya Association in Japan (BRAJ)
78. Taman Sri Nibong Residents’ Association
79. Friends of Pakatan Rakyat UK

Source: ALIRAN Website

Syed Shahir :Discontinue Threats and Action Against Charles Hector...

Media Statement - 18/2/2011

Discontinue Threats and Action Against Charles Hector, Blogger and Human Rights Defender, for highlighting plight of workers.

The Union is appalled by the reaction of Asahi Kosei (M) Sdn.Bhd., a subsidiary of Asahi Kosei Japan Co. Ltd, in going after persons who highlighted the plight of Burmese migrant workers who work in the company’s factory. We call for the immediate withdrawal of the threat of a legal suit demanding RM10,000,000-00 from Mr. Charles Hector for highlighting worker rights and human rights violation that were happening to the said 31 workers. 

In response to legitimate grievances raised by the said workers, which included non payment of wages as agreed, wrongful imposition of a ‘fine’ for absence from work, and unlawful deductions from wages, the response was to use threats on these workers, deprivation of electricity and other utensils at the living quarters of these workers, and the threat to terminate and even send them back to Burma. 

Now, the company seem to be denying all allegations, even to the extend of saying that these are not their workers, and that these were not workers under the ‘direct payroll’ of Asahi Kosei (M) Sdn. Bhd. They allege that all the affected workers were supplied by an outsourcing agent, and in short, they seem to say that they are not responsible for these workers or what happened to them.

It is our position that all workers working at any factory and/or workplace must be directly employed by the said company operating the said factory. It matters not how you got your workers, but the moment they do start working they become your workers, and the employer, in this case Asahi Kosei (M) Sdn. Bhd., is fully responsible for these workers. The company should pay salary directly to the worker, and ensure that all workers working for them enjoy all rights, benefits and other entitlements due to workers under the employer-worker agreements, collective bargain agreements covering the said factory, and existing rights guaranteed under the Malaysian law to workers. 

Workers working in a factory should also have the right to join the said factory’s in house union, and also regional/state/national unions covering the sector in which the factory operations come under.

It is very wrong, and certainly anti-worker anti-trade union if employers can shirk responsibilities justly owed by the said employer, by stating that these migrant workers were not under the direct payroll of the company, but under the employ of some other person and/or company. 

Workers working at any particular factory should all be paid directly by the said company, and not through any other third party. All workers who work in a particular factory should be accorded equal treatment, and that includes equal pay for equal work, and also equal entitlement of rights. 

The Malaysian Federal Constitution guarantees equality, and even the Employment Act 1955, in section 60L, clearly promotes anti-discrimination of workers, and gives the right of all workers, whether local and/or foreign, the right to lodge complaints in the event of discrimination on the basis of nationality of the said worker.

The power that workers and trade unions have when it comes to dealing with their employers is worker action, which includes strikes, and if Malaysian government permits a new class of workers to be working at a workplace, who are workers of some other third party, then it just weakens the power of workers and/or their unions in demanding for better rights and benefits from their employers. 

The Malaysian government tried to legalize the practice of using workers of some third parties at the workplace by the introduction of ‘contractors of labour’, through D.R.25/2010 Employment (Amendment) Bill 2010, that was tabled in Parliament in July 2010 but due to public pressure, this Bill was withdrawn. 

Malaysian Trade Union Congress have also came out repeatedly against this practice of using workers of third parties, and has called for an immediate revocation of licences of all labour outsourcing companies. Since demands made by unions to the Malaysian government, has yet to bear fruit, maybe it is time for MTUC and other trade unions to take this obviously pro-employer government to court on this matter. 

It may be alright for agents and companies to assist companies in identifying and providing workers for companies, but the moment the companies accept these workers, there must immediately be an employment agreement and relationship with all these workers directly and the said company. The workers thereafter are the workers of the said company, and the company shall be fully responsible for the recognition and protection of all worker rights. 

Any good company that respects universally accepted human rights and worker rights will not resort to using workers of another at their factories, and will not shirk their responsibilities to their workers with claims that they are not their workers, and when there are allegations worker rights violations to try divert this responsibility to workers to some other third party.

The current action of Asahi Kosei (M) Sdn. Bhd., in attempting to go after human rights defenders, worker rights activists and advocates, in this case Mr Charles Hector, with threats of a legal suit is so wrong and against public interest. The intention here seems to be an attempt to silent concerned persons and organizations from highlighting worker rights and human rights violations in an effort to stop further violations, and ensure that justice is done. 

Allegations of human rights worker rights violation should rightly be dealt with by companies through negotiations with workers and/or trade unions, using the available mechanisms that are available, and not by targeting those that highlight these violations be it bloggers, media agencies, civil society organizations or even individuals, who do have a moral obligation and duty to bring to public notice any perceived wrongdoing, human rights violations and worker rights violations.

We note also that this matter of rights violation at Asahi Kosei, is the subject matter of a Joint Media Statement, currently endorsed by about 80 civil society organizations.

We call for an immediate and unconditional withdrawal of this threat of a legal suit and/or any legal action (if it has already been commenced) against Charles Hector.

We call on Asahi Kosei(M) Sdn. Bhd., to also take direct and full responsibility for all workers working in their factory, and not try to shift blame to some other third party. We hope that Asahi Kosei(M) Sdn. Bhd., do the needful, including reinstating the 2 migrant workers that have been stopped from working by reason of their refusal to sign a new ‘contract’ forced on them.

Syed Shahir Syed Mohamud
Executive Secretary of National Union of Transport Equipment & Allied Ind.Workers
(Former President of Malaysian Trades Union Congress- MTUC)
Syed Shahir can be contacted: Tel. 603- 55192421/55193860. Fax: 603-55106863

AHRC Open Letter to the Asahi Kosei (M) Sdn. Bhd. Company

MALAYSIA: Protest against a threat of litigation against human rights lawyer, public interest advocate and blogger Mr. Charles Hector Fernandez

February 18, 2011

An Open Letter from the Asian Human Rights Commission to the Asahi Kosei (M) Sdn. Bhd. Company 

Mr. Takeshi Nishitsuji -- President
Asahi Kosei (M) Sdn. Bhd.
Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong, Selangor Darul Ehsan
MALAYSIA
Tel: +60 3 89614360
Fax: +60 3 89614354
Email: asahi@po.jaring.my

Dear Mr. Nishitsuji,

MALAYSIA: Protest against a threat of litigation against human rights lawyer, public interest advocate and blogger Mr. Charles Hector Fernandez

The Asian Human Rights Commission (AHRC) is writing to draw your attention regarding the instructions to T.S. Teoh & Partners, your legal representative, on the possibility of taking legal action for libel against Mr. Charles Hector Fernandez, a blogger and lawyer, regarding the posts in his blog you claim to be libellous.

In the demand letter dated February 11, 2011, but which was served on Mr. Fernandez on February 14, you claimed that the content of his post in his blog charleshector.blogspot.com, on February 8, titled ' Hopefully ASAHI KOSEI (M) SDN. BHD wont terminate/deport workers who claim rights'; and on February 9, titled ' URGENT:- Stop ASAHI KOSEI (M) SDN. BHD from sending Thiha Soe (PP No: A 458011) back to Burma, were "very serious libel on our clients and have caused them much distress and embarrassment".

Your Company also demanded a payment of RM10,000,000.00 (USD3,279,307) within seven days from him to 'vindicate our clients reputation', to "remove the said postings and a full written and unequivocal public retraction and written apology in terms to be approved by us and an undertaking not to repeat these allegations".

As of today, the post that is subject of your complaint can still be accessed online. We understand that from the very beginning of this issue, Mr. Fernandez had been trying to draw your attention to the plight of workers who are complaining. Mr. Fernandez acted on legitimate complaints, like any other compassionate individuals would do, to hear and comment on the grievances of victims like them. On the same day the articles were posted, Mr. Fernandez sent emails to your Company asking for you to intervene. However, he has not received any response.

While we understand that legally your Company has the right to take legal action for the protection of your interests we urge you to reconsider this path. Your Company, who has been doing business and providing employment in Malaysia, would rather have more to gain and more contributions should you withdraw the legal action on Mr. Fernandez for the following reasons:

Narrating facts, evidence vs. narrating with malice
The content of Mr. Fernandez posts were purely narration of facts based on the information given to him by the Burmese migrant workers. He acted on behalf of the workers who are foreigners in Malaysian soil to assist them in obtaining remedies. In his posts, he asked questions and did not make declarations, wrote the term 'allegedly' and expressed human emotions of hope that your Company would respond to the workers' plight.

As you are aware, the migrant workers are from Burma. Most of them could not speak the language that is spoken in Malaysia; thus, if these workers could not even speak the language, we certainly could not expect them to know all the legal and complaint mechanisms therein, if there is anything that we could call effective in a real sense that is available in Malaysia.

The role on which Mr. Fernandez took on this case is very important. Where the state mechanisms are not known to victims, he has helped to inform the workers how to deal with it; and where information about complaints of violations are mostly unreported, he blogs on them for other people to intervene on behalf of the workers. We would not have known the case of these workers had it not been from his blog posts.

The complaint of the Burmese workers was only made possible to be put on record, particularly with the Malaysian Human Rights Commission (SUHAKAM), because there are persons who assist in documenting their case. There was someone who could tell the workers the complaint mechanism available in a country where they are foreigners and in a place where they are most vulnerable from exploitation and abuse. In most cases, despite the endemic cases of violations on migrant workers, they prefer not to complain, to keep quiet and to just forget about what had happened to them for practical reasons.

As you are aware, the workers, which you argue are the responsibility of the employment agencies from where you get their service, are from Burma. They came to Malaysia and agreed to terms, often out rightly violating minimum protection to migrant workers, because they needed the job. They needed money to support their families living in Burma, a country where most of their people would prefer leaving than staying. Burma is one of the many countries where employment opportunities could not be found and the people suffer from its own government who do not protect them.

Workers lack protection: inside and outside their country
As you are aware, if citizens coming from developed countries are in trouble in another country, they have their mechanism where their Embassies and Consulates would contact and communicate with their citizens in trouble. They invest human resources, time, money and expertise to protect and to represent the interest of their own citizens regardless of whether they are at home or on foreign soil. Their mechanism of protection and assistance extends beyond the borders of their own country.

But the Burmese migrant workers whom Mr. Fernandez is assisting do not have this protection and assistance mechanism from their own government. A government who could not protect their own citizens in their own soil could not be expected to protect their citizens who are in trouble in foreign countries. These workers were not provided with assistance on their complaints or asked what help they needed, for example legal assistance on labour and immigration proceedings; as should be done by governments.

The wrongful deportation, as Mr. Fernandez had it described in his blog, of the Burmese migrant workers was a statement of fact and reflects the realities of the extreme difficulties these workers would have to deal with their government. How possible it is to deport a person back to his country when it is done in a procedure that was questionable? When a person in foreign countries had nothing but himself anything can be done on him. He has no protection at all. The Burmese workers, too, are themselves aware and know full well that they can never expect their own government to help them remedy their plight.

Implications of the legal action
We understand that any aggrieved party, like your Company, has the legal right to pursue complaints should they feel that their rights are violated. The AHRC is a strong advocate of effective complaints mechanism in Asian countries, particularly helping the victims of human rights violations. Your company has the right to take legal action in the same manner the victims of human rights violations do against officers of the State.

However, there is an enormous difference between upholding the person's or the entities lawful right to complain for its self preservation as against the right to complain to have the basic recognition of a fundamental right. The latter has far tremendous and deep consequences, not only on the persons or entities, but it affects the entire people in the society within their own country once they are suppressed. Needless to say, the reason why the violations of human rights, in its unspeakable terms, goes largely unreported and is not exposed to the public in Malaysia is because of the lack of recognition by their own society and their government to the fundamental principle of human rights: Freedom of Expression.

In Malaysia, laws have been used as a tool to prosecute persons who purely narrate facts, to prosecute and impose rigorous imprisonment on persons who only intend to initiate discourse on the conditions they face in their own country. They are charged, prosecuted and punished for expressing their thoughts and opinions, not because what they say was wrong or malicious but to suppress them from exposing the realities and the human conditions in their own country. In most countries, including Malaysia and Singapore, this type of legal action attacks not only the individual, but any sort of discourse on human rights and democracy.

Thus, we urged your Company not to be part of this concerted effort to suppress the struggle of the Malaysian people for recognition of the principles of Free Speech and Expression in Malaysia. We urged your Company to help them to have this fundamental right recognized not only in books and laws in their own society. By pursuing the legal action on Mr. Fernandez you are already helping in abusing a system of justice.

We urged your Company to uphold the principles of Corporate Responsibility but not abusing the legal process. In this way you can contribute to social progress in countries where you are allowed to do business to protect and uphold the interest of the people.

Yours sincerely,

Wong Kai Shing
Executive Director
Asian Human Rights Commission, Hong Kong

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You can also read and respond to this Appeal:
MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

Urgent Appeal - MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action...

MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

February 16, 2011
ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-033-2011



16 February 2011
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MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

ISSUES: Human rights defenders; Migrant workers; Labour rights; Freedom of association; Freedom of assembly; Freedom of expression
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Dear friends,

The Asian Human Rights Commission (AHRC) has learned that Mr. Charles Hector Fernandez, a human rights defender and lawyer, is facing threats of legal action by Asahi Kosei (M) Sdn. Bhd. Company, a company employing migrant workers. The Company claimed that Mr. Fernandez posts on the plight of Burmese migrant workers were libelous. The legal action on Mr. Fernandez not only threatens free speech, but suppresses human rights defenders from exposing the plight of migrant workers. In Malaysia, violations of human and labour rights of migrant workers by employers and the authorities mostly go unreported.

CASE NARRATIVE:

Mr. Charles Hector Fernandez is a lawyer and a former member of the Malaysian Bar Council. He is also an active human rights defender and a Blogger, running the Blog: charleshector.blogspot.com. In his Blog, he has been raising the issue of human rights violations against a group of Burmese migrant workers in relation to the Asahi Kosei (M) Sdn. Bhd. Company, a subsidiary of the Asahi Kosei Japan Company Limited, a Japanese company operating in Malaysia which manufactures components for video equipment, hard disk drive and automotive parts.

The issue involves about the complaints of 31 Burmese migrant workers regarding the non-compliance of agreement by their employer. The workers alleged that the employer was paying them far less than what was promised. In the process of seeking compensation and fair treatments, the workers alleged that they were threatened by gangsters and two of them escaped from being sent back to Burma. They have lodged formal complaints with the Malaysian Human Rights Commission (SUHAKAM) and the Labour Department.

Mr. Charles Hector Fernandez, who is assisting the victims to obtain remedies, posted the situation of this group of Burmese migrant workers in his Blog. In his blog, he also asked others to intervene on behalf of the victims. A media statement signed by 77 organizations was issued on 11 February 2011 (full text of the statement), calling for the Company to respect the human rights of the Burmese migrants workers. However, the Company complained that the content of his posts on February 8 and 9, 2011 is libelous and damaging:

Hopefully ASAHI KOSEI (M) SDN. BHD wont terminate/deport workers who claim rights http://charleshector.blogspot.com/2011/02/hopefully-asahi-kosei-m-sdn-bhd-wont.html

URGENT:- Stop ASAHI KOSEI (M) SDN. BHD from sending Thiha Soe (PP No: A 458011) back to Burma http://charleshector.blogspot.com/2011/02/urgent-stop-asahi-kosei-m-sdn-bhd-from.html

On 14 February 2011, Mr Charles Hector Fernandez received a letter from the lawyer of the Asahi Kosei (M) Sdn. Bhd. Company (full text of the letter). The letter claims that the postings about the plight of the Burmese migrant workers from Mr. Charles Hector’s Blog amount to a libel on the company. The company demands from Mr. Charles Hector Fernandez within 7 days the sum of RM 10,000,000.00 (USD 3,279,307) an apology and an immediate withdrawal of the posts.

In the said complaint and demand letter, written by the company's legal representative, T.S. Teoh & Partners, the Company denied all the allegations. They claimed the workers, whom Mr. Fernandez had referred to, were supplied by an outsourcing agent and are not under the direct payroll of the company. This argument of passing the responsibility on the employment agencies is commonly used by Corporations having operations in underdeveloped countries, like in the Philippines and Thailand, to excuse themselves from legal responsibilities.

The information posted on the Blog was obtained from the affected workers. They are representing the complaints made by the migrant workers who are always in the vulnerable position to voice out their grievances and demands. Human rights defenders such as Mr. Charles Hector Fernandez are playing an important role to channel the complaints of the disadvantaged to the public and to express concern. It is a matter of public interest to ensure the grievances of any persons whose human rights being violated to be heard. Without it, there is no access to justice.

The company had been given the opportunity to respond. Mr. Charles Hector Fernandez sent two emails on 8 and 9 February 2011 to the Asahi Kosei (M) Sdn. Bhd. Company about the matter. However, the company did not respond to these emails. Instead, the Asahi Kosei (M) Sdn. Bhd. Company sent a letter to Mr. Charles Hector Fernandez demanding RM 10,000,000 for damages.

The threats of commencing legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez poses a threat to human rights defenders who are actively raising these issues to defend the rights of migrant workers.

SUGGESTED ACTION:
Please write to the companies and the authorities listed below to express your concern in this case and call for the withdrawal of commencing legal action for libel and demand for damages against Mr. Charles Hector Fernandez.

To suppor this appeal, please click here:
SAMPLE LETTER:

Dear______________,

MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers
Name of the advocate & blogger: Mr. Charles Hector Fernandez, he is a lawyer and former member of the Malaysian Bar Council. His blog address is: charleshector.blogspot.com
Name of company threatening to take legal action: Asahi Kosei (M) Sdn. Bhd. Company, a Japanese company manufacturing components for video equipment, hard disk drive and automotive parts.
About the complaint: The Company claimed that his blog posts on February 8 & 9, 2011 are libelous. The Company's legal representative, T.S. Teoh & Partners, wrote a letter to Charles Hector dated February 11, 2011 (but was served on February 14) demanding from him RM10,000,000 (USD3,279,307) as payment "to vindicate our clients" within seven days from the receipt of the letter.

I am writing to express my deep concern regarding the case of Mr. Charles Hector Fernandez. I am informed that Mr. Charles Hector Fernandez has received a letter on 14 February 2011 sent by the Asahi Kosei (M) Sdn. Bhd. Company through its lawyer. The letter claims that the posts about the plight of a group of Burmese migrant workers from the Blog of Mr. Charles Hector Fernandez amounts to a libel on the company. The company demands from Mr. Charles Hector Fernandez within 7 days the sum of RM10,000,000, an apology and an immediate withdrawal of the postings.

Mr. Charles Hector Fernandez is a lawyer and a former member of the Malaysian Bar Council. He is also an active human rights defender and a Blogger, running the Blog: charleshector.blogspot.com. Recently in his Blog, he has been raising the issue of human rights violations against a group of Burmese migrant workers in relation to the Asahi Kosei (M) Sdn. Bhd. Company, a subsidiary of the Asahi Kosei Japan Company Limited. The issue concerns the complaints of 31 Burmese migrant workers about the non-compliance of agreement by their employer. The workers alleged that the employer was paying them far less than what was promised. In the process of seeking compensation and fair treatment, the workers alleged that they were threatened by gangsters and two of them escaped from being sent back to Burma. They have lodged formal complaints with the Malaysian Human Rights Commission (SUHAKAM) and the Labour Department.

The situation of this group of Burmese migrant workers was reported in the Blog of Mr. Charles Hector Fernandez. The information posted on the Blog was obtained from the affected workers. They are representing the complaints made by the migrant workers who are always in a vulnerable position when it comes to voicing out their grievances and demands. Human rights defenders such as Mr. Charles Hector Fernandez are playing an important role to channel the complaints of the disadvantaged to the public and to express concern. It is a matter of public interest to ensure the grievances of any persons whose human rights being violated to be heard. Without it, there is no access to justice.

The company had been given the opportunity to respond. Mr. Charles Hector Fernandez sent two emails on 8 and 9 February 2011 to the Asahi Kosei (M) Sdn. Bhd. Company about the matter to which the company did not respond. Instead, the Asahi Kosei (M) Sdn. Bhd. Company sent a letter to Mr. Charles Hector Fernandez demanding RM 10,000,000 for damages.

The commencement of legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez poses a threat to human rights defenders who are actively raising these issues to defend the rights of migrant workers.

I therefore call for the withdrawal of commencing legal action for libel and demand for damages by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez.

Yours sincerely,

--------------
PLEASE SEND YOUR LETTERS TO:

TO THE COMPANY:

Office in Malaysia
1. Asahi Kosei (M) SDN. BHD.
Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong, Selangor Darul Ehsan
MALAYSIA
Tel: +60 3 89614360
Fax: +60 3 89614354
Email: asahi@po.jaring.my
Website: http://www.asahikosei.com/index.htm

Office in Japan
2. Asahi Kosei Japan Co. Ltd.
17-35, 2-chome, Kashida-nishi,
Higashi-Osaka, Osaka
JAPAN
Tel: +06 6720 6006
Fax: +06 6727 0024
Email: akj@mb2.cyberoz.net

TO THE GOVERNMENT:

1. The Human Rights Commission of Malaysia (SUHAKAM)
11th Floor, Menara TH Perdana,
Jalan Sultan Ismail, 50250 Kuala Lumpur
MALAYSIA
Tel: +60 3 2612 5600
Fax: +60 3 2612 5620
E-mail: humanrights@suhakam.org.my

2. Dato' Sri Mohd Najib Bin Tun Abdul Razak
Prime Minister of Malaysia
Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya
MALAYSIA
Tel: +60 3 8888 8000
Fax: +60 3 8888 3444


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

The Ex-Parte Order that the company obtained on 17/2/2011 (A rough translation only)

[A rough translation into English]

IN THE HIGH COURT OF MALAYA AT SHAH ALAM

IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA

GUAMAN NO: 22 NCVC – 173 – 2011

BETWEEN

ASAHI KOSEI SDN BHD

(Company No: 307712-U)                                                                         … PLAINTIF

AND

CHARLES HECTOR FERNANDEZ                                                  …DEFENDANT

BEFORE LEARNED JUDGE

LIM YEE LAN

ON 17 FEBRUARI 2011                                                                   IN CHAMBERS

ORDER

ON THE APPLICATION of the abovenamed Plaintif AND AFTER HAVING READ the Summons in Chambers dated 14^th February 2011 and Affidavit in Support affirmed by Kung Han Teong on 14^th February 2011 including the Afidavit in Support (Addition) affirmed by Kung Han Teong on 16^th February 2011 whereby all of which had been filed here AND AFTER HEARING Mr T. H. Tan, solicitor for the Plaintiff IT IS ORDERED on the undertaking of the Plaintiff given by their counsel to comply whatever order that this Court may make about damages that the Defendant may suffer following this order that has been applied for an given here that:-

a.         An injunction that the Defendan be it by himself and/or his servants or his agents or through whatever other means cause the removal/deletion/erasure of the following postings from the Defendant’s blog www.charleshector.blogspot.com immediately:-

i.          “Hopefully ASAHI KOSEI (M) SDN BHD. wont terminate/deport workers who claim rights”;

ii.         “URGENT:- Stop ASAHI KOSEI(M) SDN BHD. from sending bach Thiha Soe (PP No: A458011) back to Burma”

iii.        “Asahi Kosei Update: Thiha Soe and Aung San being held separately in undisclosed location”;

iv.        “Asahi Kosei Update (3): Labour Department Complaint lodged. Thiha Soe and Aung San safe…”

v.         “Media Statement (69 Groups) – Asahi Kosei (M) Sdn Bhd Must Respect Human Rights and Worker Rights – Reinstate Thiha Soe and Aung San Without Loss of Benefits”;

vi.        “Asahi Kosei(M) Sdn Bhd Must Respect Human Rights and Worker Rights – Reinstate Thiha Soe and Aung San Without Loss of Benefits (77 Groups)”;

or whatever other postings about the subject matter of Myanmmar workers associated with the Plaintiff.

b.         an injunction that the Defendant be it by himself or his servants or agents or through whatever other means be prevented from posting or republishing or issuing or touching on any statement about the subject matter of Myanmmar workers associated with the Plaintiff through the blog www.charleshector.blogspot.com or through any other form of communication whatsoever until the final settlement of this suit including appeals concerning this suit.

c.         cost be paid by the Defendant;

AND FINALLY IT IS ORDERED that the return date for the hearing of this Summons in Chambers inter-parte be fixed on 4^th March 2011 at 8.30am.

Dated this 17^th day of February 2011

(sgned)

………………………..

Senior Assistant Registrar

High Court

Shah Alam

NOTIS PURSUANT TO ORDER 45 RULE 7(4)

If you, CHARLES HECTOR FERNANDEZ, the abovenamed Defendant, fail to comply with this order, you will be subjected to execution proceedings to compel your compliance.

ORDER filed by Messrs T.S. Teoh & Partners, solicitors of the Petitioner which have the address of service at No.30, Jalan 10/116B, Kuchai Entrepreneurs’ Park, Jalan Kuchai Lama, 58200 Kuala Lumpur.

Tel: 03-79844792 Fax: 03-79844791    B.C. Box: 416

(Ref: TST/TTH/L451(2)L(tth)