Motion regarding the legal suit against Charles Hector Fernandez
(Proposed by M Rajkumar and seconded by Gladys Liew Kim Leng, dated 4 Mar 2011)
1. Having noted that the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, wherein, amongst others states in Article 1 that “Everyone has the right to 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 level”.
2. Article 6 of the said UN Declaration do also specifically state that, “Everyone has the right, individually and in association with others … [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…”
3. Having noted also that lawyers have a statutory obligation reflected in the Legal Profession Act to uphold the cause of justice without fear or favour.
4. Charles Hector Fernandez, a human rights defender and activist of more than 20 years, and also a lawyer, being also a former member of the Bar Council, is alleged to have caused to publish, impart and disseminate to others information which he received from 31 migrant workers of Burmese nationality, who allegedly were at the material time working in a factory in Selangor.
5. The information he received was with regards to alleged violations of human rights and worker rights and alleged unfair treatment of the said workers.
6. Noting also that Charles Hector did firstly send an email on 8/2/2011 to the said company about the information received, giving a reasonable opportunity for the company to clarify matters, and after waiting for a reasonable time for a response, he did cause the information received to be posted on the Charles Hector Blog at www.charleshector.blogspot.com.
7. A Media Statement concerning the human rights violation of the said workers was also issued on 11/2/2011, whereby the number of organizations and civil society groups that jointly issued the said statement now stands at more than 80.
8. In response, the Company threatened legal proceedings and thereafter commenced a suit on 14/2/2011 against Charles Hector, a person who had merely highlighted the alleged human rights violations. Such action is deplorable, and may put fear/deter and/or have a negative impact on other human rights defenders, organizations, ‘whistle blowers’ and other individuals who come into information and/or allegations of such violations and cause them to refrain from acting on such information. This will certainly also cause greater injustice especially when these human rights violations affect the most marginalized in our society, including workers and migrant workers, who do largely depend on others to come to their defence and assistance.
9. Noting also that public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, Human Rights Commission of Malaysia Act 1999, and Criminal Procedure Code.
10. The Company has proceeded to file a suit against the person who highlighted the issue to them and to the public.
11. Noting also that a legal suit has been filed, the Company being the Plaintiff can at any time cause to withdraw the said legal action against Charles Hector.
12. Without touching on the validity and/or sustainability of the cause of action and/or the right of the company to commence the legal suit, in the interest of justice, recognizing also the right to freedom of expression and/or opinion, respecting also the inherent principle that encourages persons having any information about alleged violations of rights to disclose it, it is felt that it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and do the needful to ensure that all rights of workers that work in the company are not violated, and justice is upheld.
THEREFORE, it is hereby resolved that:-
A. The Malaysian Bar shall render all necessary and reasonable assistance and support to Charles Hector Fernandez, as deemed fit by Bar Council.
B. That the Malaysian Bar do the needful research and submit proposals for the enactment of new laws and/or the amendment of existing law that will protect all ‘whistle blowers’ and human rights defenders that highlight human rights violations allegedly propagated by State and non-State actors against persons in Malaysia, both from the perspective of civil and/or criminal liability having regard, amongst others, to the United Nations 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 motion, as amended, was unanimously carried.
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