MALAYSIA: Human Rights Defender’s Case Update (30/3/2011)

               

                              Charles Hector‘s lawyers Francis Pereira give the interview to media 

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez(Case No: 22 NCVC – 173 – 2011) came before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex at about 2.30pm, 30/3/2011. [Court proceeding started at 2.40pm and ended at about 4.45pm]

Charles Hector was represented by lawyers Francis Pereira and Sharmini Thiruchelvam

Asahi Kosei Sdn Bhd was represented by lawyer John Fam, Freeda Santhiago, and Tan Tai Hwa

Malaysian Bar (Holding a Watching Brief) was represented by Andrew Khoo and Daniel Lo

·                     The matter was in open court, and the Judge declared it to be a matter in chambers. The reason for this was that there were a lot of lawyers involved, and the judges chambers could not accommodate. The open court also had the electronic note taking facility.

·                     Despite there being no objections from lawyers of both parties, with regard to the presence of other people in the public gallery, the judge decided to ask members of the public present(who were representatives from civil society groups, including  the Burmese community groups) to leave the court room. The court was cleared and the hearings proceeded in chambers.

The case today came up for the hearing of:-

a)    The Asahi Kosei’s application for an interlocutory (temporary) injunction, in brief, is for an injunction same as the one they applied for and got on 17/2/2011(without the knowledge or presence of Charles Hector and/or his lawyers), which lapsed on 4/3/2011. They are applying for removal/deletion/erasure from the Defendant’s blog www.charleshector.blogspot.com immediately whatever postings about the subject matter of Myanmmar workers associated with the Plaintiff. (these have really all been removed because of the 17/2/2011 court order) and

“an injunction that Charles Hector 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 Asahi Kosei  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.”

[Note the 17/2/2011 order that Asahi Kosei got expired on 4/3/2011, and their lawyers applied for a ‘holding over’ order until this hearing is decided by the court, and Charles Hector’s lawyers objected. The court granted a much narrow order, confining to just the 31 Burmese Migrant Workers [no more all Burmese migrant workers], and restricting Charles Hector from communicating only through the blog www.charleshector.blogspot.com and twitter [previously it was a total ‘gag order’ and included all forms of communication], and this was until 21/3/2011. They companies lawyer applied for an extension of this order on 21/3/2011 and it was extended to 30/3/2011.]

(b)       The hearing of Charles Hector’s application to set aside the said ex-parte order of 17/2/2011.

            When anyone goes to court and apply for an ex-parte order (that is one without the knowledge and/or presence of the other side), there must be full and frank disclosure of everything, including those that is not in favour of Asahi Kosei – Charles Hector’s lawyers say that Asahi Kosei did not do this. They never even revealed the name of the 31 workers, the fact that all these workers have been working in Asahi Kosei under Asahi Kosei’s total supervision and control at the factory, was being paid for the work done in Asahi Kosei, where the salary depended on the hours of work, overtime, etc.

            Asahi Kosei’s lawyers also did not bring to the notice of the court that in defamation cases, the court generally will not grant any temporary injunction order because it recognizes freedom of speech as being important.

            Asahi Kosei also did not reveal to the court the possible answers and the defence that may be raised by Charles Hector. The reason for not giving notice was a bad reason, i.e. that there would be delay if Charles Hector was given notice of their application to court.

            Asahi Kosei also misled the court by saying that even after they send the lawyer’s letter, Charles Hector continued with his posting. The letter was received by Hector on 14/2/2011, and in the suit and application filed on the same date, Asahi Kosei in their Statement of Claim and in a sworn Affidavit filed on 14/2/2011 said this. How could they say such things when the letter (the very first notice) was only sent to Charles Hector only on 14/2/2011.

            There were also other points including the point that the 17/2/2011 order asked Charles Hector, who was not even there, to pay for the costs of the Asahi Kosei’s application. In this application, the court will only look at the documents filed and made available by Asahi Kosei, when it applied and got the 17/2/2011.

            [It must be pointed out that the court can set aside the 17/2/2011, and even if still allow Asahi Kosei’s application now for a new temporary injunction]

The court heard both the applications together, and then the judge adjourned the matter saying that she needed time to come to a decision, and fixed the next date for decision at 2.30pm, 7/4/2011

Other matters

1 – Asahi Kosei’s lawyers made an oral application that the name of the Plaintiff be changed from Asahi Kosei Sdn Bhd to ‘Asahi Kosei (Malaysia) Sdn Bhd, and the court allowed, and confirmed that all further court papers will bear the new name. Charles Hector’s lawyers had previously objected to their not stating the full name of Asahi Kosei.

2- Charles Hector’s lawyers also informed court that they had filed an application to court to join all 31 Burmese migrant workers as a party in the action. [Background: Of the 31, 26 workers are still working in Asahi Kosei, but 5 others have not been allowed to get back to work. There is worry that they may try to cancel the said workers work pas/visa, which will make them undocumented, and this will mean that they will face risk of being sent back to Burma. These workers, including the 5,  are crucial witnesses for Charles Hector, and among them are those that complained to SUHAKAM and Labour Department, those that have affirmed Statutory Declarations, those that were sent to the airport to be sent back to Burma on 7/2/2011, those that were taken away allegedly to be send back to Burma for not agreeing to the ‘new’ agreement, etc. Asahi Kosei was asked in court on 21/3/2011 to give an undertaking to ensure that these workers can continue working at Asahi Kosei and remain legally in Malaysia until the end of the trial – but Asahi Kosei said that they could not do that.

Civil society (including migrant workers‘s representatives) waiting outside the court room after the judge ask them to leave the court room

         

* Representatives from civil society, human rights groups and the Burmese migrant community were also present in court as a show of support and solidarity. A Japanese member of civil society was also present. Media was present today. We appreciate your continued support, more so the waiting outside the court for more than 2 hours, and the show of solidarity. Thank you also for the many well wishes we received from friends and colleagues in the struggle for human rights and justice.

Important Past Dates

14/2/2011 –  Charles Hector receives company’s lawyers letter of demand.

14/2/2011 – Company filed court action, and applies for an ex-parte interlocutory injunction

17/2/2011 – Hearing of application & Court grants ex-parte order

21/2/2011 – Charles Hector receives order & court documents (becomes aware for the first time that Company had filed suit and applied for an order)

4/3/2011 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

Next hearing date: 7/4/2011(Thursday), at 2.30 pm

Charles Hector, Human Rights Defender, Activist, Lawyer & Blogger is being sued by the company for defamation for raising information of human rights and worker rights violations of workers working in the said company on his Blog. Information circulated came from the 31 migrant workers from Burma. Before any posting, an email was sent to Asahi Kosei for their response, which contained also these words, “If there are anything that you would like to correct, kindly revert to me immediately. …An urgent response would be appreciated. Failing to hear from you, I would take it that the allegations of the workers are true.”. The company did not respond, and subsequently commenced a legal suit 6 days later.

The company’s main argument is that these are not their workers, but are workers supplied by an ‘outsourcing agent’. The company says that these workers are not on their ‘direct payroll’ …salaries are paid to the agent, hence they are not responsible for these workers, and for what happened. The company claims no knowledge of any termination or attempted deportation….or any ‘new agreement’.

Charles Hector is of the opinion that once the workers are supplied to the company, then an employment relationship arises…between the workers and the company…A company must be responsible for all workers that work in their factory.

 Member of Civil society waiting for result of hearing in the middle Ms .Angeline Loh ,an Aliran exco member

to draw public attention to ...observance, both in law and in practice, of all human rights

For highlighting information about human rights violations suffered by 31 Burmese Migrant Workers who were working at Asahi Kosei(M) Sdn Bhd, in Charles Hector Blog, HR Defender, Charles Hector, has been sued for RM10 million by the said company. The UN Declaration for HR Defender clearly gives anyone the right to highlight violations of Human Rights...

 

UN Human Rights Defenders Declaration

Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms


General Assembly resolution 53/144

The General Assembly,

Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world,

Taking note of Commission on Human Rights resolution 1998/7 of 3 April 1998, See Official Records of the Economic and Social Council, 1998, Supplement No. 3 (E/1998/23), chap. II, sect. A. in which the Commission approved the text of the draft declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms,

Taking note also of Economic and Social Council resolution 1998/33 of 30 July 1998, in which the Council recommended the draft declaration to the General Assembly for adoption,

Conscious of the importance of the adoption of the draft declaration in the context of the fiftieth anniversary of the Universal Declaration of Human Rights, Resolution 217 A (III).

1. Adopts the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, annexed to the present resolution;

2. Invites Governments, agencies and organizations of the United Nations system and intergovernmental and non-governmental organizations to intensify their efforts to disseminate the Declaration and to promote universal respect and understanding thereof, and requests the Secretary-General to include the text of the Declaration in the next edition of Human Rights: A Compilation of International Instruments.

85th plenary meeting
9 December 1998

ANNEX

Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms

The General Assembly,

Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world,

Reaffirming also the importance of the Universal Declaration of Human Rights² and the International Covenants on Human Rights Resolution 2200 A (XXI), annex. as basic elements of international efforts to promote universal respect for and observance of human rights and fundamental freedoms and the importance of other human rights instruments adopted within the United Nations system, as well as those at the regional level,

Stressing that all members of the international community shall fulfil, jointly and separately, their solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all without distinction of any kind, including distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and reaffirming the particular importance of achieving international cooperation to fulfil this obligation according to the Charter,

Acknowledging the important role of international cooperation for, and the valuable work of individuals, groups and associations in contributing to, the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources,

Recognizing the relationship between international peace and security and the enjoyment of human rights and fundamental freedoms, and mindful that the absence of international peace and security does not excuse non-compliance,

Reiterating that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and should be promoted and implemented in a fair and equitable manner, without prejudice to the implementation of each of those rights and freedoms,

Stressing that the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State,

Recognizing the right and the responsibility of individuals, groups and associations to promote respect for and foster knowledge of human rights and fundamental freedoms at the national and international levels,

Declares:

Article 1

Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

Article 2

1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice.

2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed.

Article 3

Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the present Declaration for the promotion, protection and effective realization of those rights and freedoms should be conducted.

Article 4

Nothing in the present Declaration shall be construed as impairing or contradicting the purposes and principles of the Charter of the United Nations or as restricting or derogating from the provisions of the Universal Declaration of Human Rights,² the International Covenants on Human Rights³ and other international instruments and commitments applicable in this field.

Article 5

For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels:

(a) To meet or assemble peacefully;

(b) To form, join and participate in non-governmental organizations, associations or groups;

(c) To communicate with non-governmental or intergovernmental organizations.

Article 6

Everyone has the right, individually and in association with others:

(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems;

(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms;

(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.

Article 7

Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.

Article 8

1. Everyone has the right, individually and in association with others, to have effective access, on a non-discriminatory basis, to participation in the government of his or her country and in the conduct of public affairs.

2. This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms.

Article 9

1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights.

2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person’s rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay.

3. To the same end, everyone has the right, individually and in association with others, inter alia:

(a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay;

(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments;

(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms.

4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms.

5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.

Article 10

No one shall participate, by act or by failure to act where required, in violating human rights and fundamental freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so.

Article 11

Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics.

Article 12

1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms.

2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration.

3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms.

Article 13

Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration.

Article 14

1. The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights.

2. Such measures shall include, inter alia:

(a) The publication and widespread availability of national laws and regulations and of applicable basic international human rights instruments;

(b) Full and equal access to international documents in the field of human rights, including the periodic reports by the State to the bodies established by the international human rights treaties to which it is a party, as well as the summary records of discussions and the official reports of these bodies.

3. The State shall ensure and support, where appropriate, the creation and development of further independent national institutions for the promotion and protection of human rights and fundamental freedoms in all territory under its jurisdiction, whether they be ombudsmen, human rights commissions or any other form of national institution.

Article 15

The State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of the armed forces and public officials include appropriate elements of human rights teaching in their training programme.

Article 16

Individuals, non-governmental organizations and relevant institutions have an important role to play in contributing to making the public more aware of questions relating to all human rights and fundamental freedoms through activities such as education, training and research in these areas to strengthen further, inter alia, understanding, tolerance, peace and friendly relations among nations and among all racial and religious groups, bearing in mind the various backgrounds of the societies and communities in which they carry out their activities.

Article 17

In the exercise of the rights and freedoms referred to in the present Declaration, everyone, acting individually and in association with others, shall be subject only to such limitations as are in accordance with applicable international obligations and are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Article 18

1. Everyone has duties towards and within the community, in which alone the free and full development of his or her personality is possible.

2. Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes.

3. Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized.

Article 19

Nothing in the present Declaration shall be interpreted as implying for any individual, group or organ of society or any State the right to engage in any activity or to perform any act aimed at the destruction of the rights and freedoms referred to in the present Declaration.

Article 20

Nothing in the present Declaration shall be interpreted as permitting States to support and promote activities of individuals, groups of individuals, institutions or non-governmental organizations contrary to the provisions of the Charter of the United Nations.