Pranom Somwong: Malaysia’s quagmire
How did Hector’s recent hearing go?
The first hearing on the 4 March is called the inter-party meeting. It means the company leader representatives were there and Charles Hector’s legal representatives. The problem is, on 17 February, Asahi Kosei received only one side injunction from the court against Charles Hector and he cannot communicate anything at all regarding the 31 Burmese workers and Asahi Kosei to the public. So on the hearing on 4 March, Charles Hector’s lawyer tried to convince the court to get rid of that injunction. But unfortunately the injunction against him is still there but now is limited to stopping him from posting anything on his blog regarding Asahi Kosei and 31 Burmese workers, and he’s not allowed to communicate on Twitter about this case, but can talk with public and can give information, although he’s been advised not to because they can get other injunctions against him. In the next hearing on 21 March the lawyers are planning to fight the injunction again and trying to get rid of every injunction against him.
Is that injunction in some way a victory for Asahi Kosei?
Not really because it’s temporary, so the case is not yet finished. It’s quite normal in defamation suits for the court to block anything about the blog. But the [blocking of Twitter] is an attempt to silence those who speak out against human rights violations, so it doesn’t go with the other usual defamation suits anyway. So we didn’t see this as a victory for the factory yet, but it’s temporary and we hope the court will [revoke] the injunction.
Asahi Kosei didn’t respond to the letters that Hector sent. How important do you think that would be in the case?
I’m not sure on the legal perspective. But I see that the company doesn’t want to respond on inquiry and doesn’t want to justify themselves about the situation, so instead they filed the legal suit. We see that it’s a very inappropriate action because when somebody inquires about something regarding your responsibility and you want the public to learn about the truth, you should justify yourself and come up with the formal step. But instead of them doing that, they filed a suit against the one person who tried to bring up that issue.
What kind of freedom of speech exists in Malaysia’s constitution or laws?
I think in the constitution, [freedom of speech] is allowed for Malaysian citizens. See that’s the problem – it’s only citizens who have freedom of speech guaranteed. I mean [Hector] is a citizen but I think a citizen should be any person.
Do you think that right will be respected in the court of law? Especially given the fact that he did write to Asahi Kosei?
Possibly, and we hope the court will look at that angle. We don’t really know what opinion or judgement the court will have on this case but we hope it will take that into consideration and also look at the issue of human rights defenders and the freedom of information. It is very important for the public to know what’s happening, especially with groups like migrant workers because they don’t have other voices – migrant workers don’t have any channel to raise their concern. Even in this case, Charles Hector suggested the workers also make a compliant to the labour department and the Malaysian human rights commission and they did. But because of the inefficient monitoring system from this [ruling] party, this made it very urgent for Hector to address this case via his blog to try to stop the deportation of the workers. So we hope the court will take all these issues into consideration.
What are his lawyers’ main defence?
In the case, Asahi Kosei claimed that these workers were supplied by an outsource agent, so implying they are not responsible for them. They are not denying any violation or saying the violations are not true. But they said everything happening is under the outsource agent’s supply, implying that these workers don’t belong to them so they are not responsible for this. Therefore what Charles Hector posted on his blog about Asahi Kosei sending workers blah blah blah is not true. So now in the court, Charles Hector has to prove these workers are the workers of Asahi Kosei, and if he can prove that, he can win the defamation suit. But if the court rules these workers are not Asahi Kosei, then the company will win the suit.
Would there not be the issue that they didn’t respond to his letter?
The problem is that in the work permits of the workers it gave the name of the outsource agent. But that kind of employment is not allowed under the Malaysian employment law, which only allows direct employment. It doesn’t allow the agent-supplied worker employment, but the Malaysian immigration department and human resources are allowed outsource agents to register for the workers.
Do you think there would be repercussions of that malpractice for Asahi Kosei?
That’s what we hope, because now Charles Hector has requested the court to say that these workers were working in the Asahi Kosei facility, that their management also came from Asahi Kosei, so they should belong to the Asahi Kosei company. And now he has asked the court to come up with that declaration.
So essentially Asahi Kosei has broken the law by using workers from an agent?
Yeah. The thing is, the labour law doesn’t allow that but the immigration allows that in the work permit. This was never challenged in a Malaysian court. So this case is no more just a defamation case; this case will be about determination of whether the workers supplied by the agent are the responsibility of the main company.
Can this case set a precedent in Malaysian law and for Burmese workers there?
Absolutely! If the court gives the declaration that these workers belong to the main company, it will affect every single company that is now trying to deny their responsibility. And that is not just for the Burmese but for other migrant workers too because this issue is not new at all. If you learn about the situation of migrants in Malaysia there are a lot of practices of the employers and all their agents who try to [pass] their responsibility to someone else because most of these agent companies – we call them Two-Ringgit companies – they just open the company but they don’t have any responsibility. If they have a problem, they just close the company and run away. So this could affect other cases. And not just Burmese workers, it will be three million workers. And not just migrant workers because we learnt from the Malaysian Trade Congress now that even the local workers have to go to the agent.
How similar is it to the case of Charlie Deeyu in Thailand?
In the case of Charlie Deeyu, his agents ran away – they were the ones responsible for paying for his health are treatment, and so the Thai government had to foot the bill. I think, for Charlie, the problem is they denied the bail because actually he had a legal work permit, so I think the problem is that the hospital didn’t find out that he actually had a work permit. And that’s why the lawyer society of Thailand is now trying to get him compensation, and the court ordered the compensation but only for 3000 baht ($US100). So I’m sad.
You see, in Charlie’s case, if nobody notified the public or the media about him being chained [to a hospital bed], even though he was sick, no one would have found out about it. It’s exactly same as Asahi Kosei when the two Burmese workers were forcibly sent back to Burma, and if nobody addressed the issue, the public wouldn’t know what was happening to them.