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| Charles Hector‘s lawyer Francis Pereira ( in the middle ) is briefing for civil society on the case |
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 the company for clarification/verification, 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 they are not their workers, but workers supplied by an ‘outsourcing agent’. The company says that these workers are not on their ‘direct payroll’ …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 automatically an employment relationship arises…between the workers and the company…
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, 21/3/2011.
Charles Hector was represented by lawyers Francis Pereira(with Taneswaran, pupil in Chambers)
Asahi Kosei Sdn Bhd was represented by lawyer John Fam(counsel), Freeda Santhiago, and Tan Tai Hwa
Malaysian Bar (Holding a Watching Brief) was represented by Andrew Khoo
· The matter was called into chambers, and the Judge wanted to just meet the parties, and Mr Andrew Khoo was asked to leave. We do not think that this was right, as the Malaysian Bar was holding a watching brief, and Andrew should have been allowed to be present.
The case today was fixed for the inter-parte[1] hearing with regard the ex-parte [2]injunction obtained on 17/2/2011, and also the hearing of Charles Hector’s application to set aside the said ex-parte order of 17/2/2011.
In chambers, the judge proposed that time not be wasted with these hearings, and that she was willing to set the matter down for an early trial, and requested parties to agree and consent to an ‘holding over’ order. The company lawyers were alright with that proposal, but Charles Hector’s lawyers was not – and insisted that the applications before court should be disposed off firstly and separately, but was happy if an early trial date could be fixed thereafter.
The court then fixed the trial date on 19, 20 and 21 April 2011, and the next hearing date for the 2 applications on 30/3/2011 at 2.30pm. Lawyers from both sides then handed over their outline submissions, which were also given to the other party. The company’s lawyer applied for the continuation of the holding over order until the next hearing date, and the court granted it.
The holding over order was a watered down version of the earlier ex-parte order, which lapsed on 4/3/2011, and it was confined to just communication about the issue concerning the named 31 workers in Charles Hector’s Affidavit through the said Charles Hector blog [www.charleshector.blogspot.com] and communications by tweet. Freedom of expression of Charles Hector continues to be curtailed.
Why did Charles Hector’s lawyer object to the judge’s proposal?
1) They are of the position that the court should never have granted the ex-parte order applied for by the Company and granted on 17/2/2011, whereby Charles Hector was not even given any notice about this application, and never even had a chance to participate in the hearing before the order was granted.
2) Further, that 17/2/2011 wrongly orders Charles Hector to pay cost for the application of the Plaintiff.
3) In applying for that order, the Company also failed in their duty to disclose all information and facts, and also did possibly ‘lie’, and in so doing would likely have misled the court into granting such an order.
4) If not set aside, then it would have been an admission that what the company had done was right, and at the end of the day Charles Hector would also be liable to pay cost. Normally, in such kinds of application, done without the knowledge or the participation of the other side, cost would by paid by the applicant, i.e. the Company.
5) With regards the company’s application for a new injunction order, i.e. that inter-parte application for an interim injunction[3], Charles Hector’s lawyers are of the opinion that in a defamation case, especially where the Defence is one of justification and fair comment, courts will not grant any such interim injunctions which is also a violation of universally guaranteed freedom of expression.
6) Hence, to agree to the judge’s proposal would have been very prejudicial to Charles Hector.
7) For the company, it would have been a ‘victory’ as their order of 17/2/2011 would have still been valid, and they get what they were asking for, even though it may be a diluted version of what they applied for.
Why the judge did not proceed with the full hearings today remains a mystery. The judge did say that she had another application also fixed on the same day that she had to hear.
Charles Hector is certainly disappointed with the outcome of the day – as this would be the 2nd postponement. The hearing was supposed to be heard on 4/3/2011, and was then postponed to 21/3/2011 and now again to 30/3/2011. His right to be able to freely communicate and highlight injustices through his blog and twitter continue to be violated. Note that he has been subject to a broader gag order that prevented all forms of communications on matters concerning Burmese migrant workers and Asahi Kosei since 21/2/2011 when the 17/2/2011 order was served on him.
Other matters
Charles Hector has already filed his Defence and Counter-Claim, whereby in the Counter-Claim he is also seeking some Declarations that determine that company’s supplied workers by ‘outsourcing’ agents, do become the employer on receipt of the workers, and do have the duties/obligations of an employer to these workers. There are other declarations. More information would be given later. The Company has also now filed their Defence to the Counter Claim and a Reply to Charles Hector’s Defence.
At the last date, 4/3/2011, they Company’s lawyers said that they will file and serve their Affidavits in Reply in 3 days – but these was only done on the afternoon of 14/3/2011. Charles Hector had to rush and file his Affidavit in Reply which was done on 17/3/2011 to prevent a postponement of the hearing fixed for 21/3/2011. In any event, the Company filed another 2 Affidavit on the morning of 21/3/2011 – and not to delay matters, Charles Hector’s lawyers were ready to proceed with the hearing today, 21/3/2011. But the court was not – and the matter is now postponed to 30/3/2011. Charles Hector’s lawyers said that Charles Hector’s Afidavit in Reply to the 2 new Affidavits will be filed and served latest by Friday (25/3/2011).
There is a lot of concern that the 31 workers may hurriedly be send back to Burma, and that will very prejudicial to Charles Hector as all information was from these workers, and it is only them that will be able to tell the court what had happened. They are crucial material witnesses. There were 31 Burmese migrant workers, and the Asahi Kosei has now only 26 workers back working in their factory. 2 are in hiding afraid that they may be caught and sent back to Burma. 1 may have already been sent back. No information about the other 2. Charles Hector’s lawyers applied to court to ask Asahi Kosei to give an undertaking that these workers will not be sent back (‘disappeared’) before the trial completes, but the company said that they do not have the ability to do that. The court said that maybe the ‘outsourcing agent’ would be able to do that and asked Charles Hector’s lawyers to make the necessary application for this. Maybe Charles Hector’s lawyers may have to make some more application to ensure that these 31 workers are still here when the trial begins. All we can do is hope that they will be brave and be allowed to tell the truth, for then justice will hopefully prevail.
* Representatives from civil society, human rights groups and the Burmese migrant community were also present in court as a show of support and solidarity. No media was present today. We appreciate your continued support and 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 – 1st hearing date of Company’s inter-parte application for an interlocutory injunction.
1st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011
21/3/2011 – 2nd hearing date for both applications
Next hearing date: 30/3/2011(Wednesday), at 2.30 pm
[1] this means where the proceedings and hearing is done involving both (or all) parties in the legal case.
[2] this means where one party applies for and proceeds with a hearing without the knowledge/presence of the other party, and obtains an order referred to as the ‘ex-parte order’.
[3] – This is a temporary order granted by the court to usually prevent a party from doing something until the end of the full trial. In this application, the court does not go into the full merits of the case or make any final decision on the case. Even if the court grants/disallows the Company’s application, it does not mean that all is lost for Charles Hector and/or the company. The important decision is the final decision which will be made after the full trial, after the court has listened to witnesses, considered all documents, heard lawyer’s submissions and applied the law. Of course, if parties are not happy, there is always the appeal to the Court of Appeal.
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