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.
* 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 – 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
30/3/2011 – 3rd 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
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