MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights

April 4, 2011
ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal update: AHRC-UAU-019-2011


 4 April 2011
------------------------------------------------------
MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights
ISSUES: Human rights defenders; Migrant workers; Labour rights; Freedom of association; Freedom of assembly; Freedom of expression
------------------------------------------------------
Dear friends,

The Asian Human Rights Commission (AHRC) regrets to inform you that the Asahi Kosei (M) Sdn. Bhd. Company, a firm whom we earlier reported to have threatened to commence legal action against a human rights lawyer, Mr. Charles Hector Fernandez, for blogging about alleged violations of the migrant workers rights the company has committed, has proceeded in prosecuting him for libel. 

UPDATED INFORMATION:

As mentioned in our previous appeal (AHRC-UAC-033-2011

), on February 14, 2011 the Asahi Kosei (M) Sdn. Bhd. Company, demanded from Mr. Fernandez the payment of RM 10,000,000.00 (USD 3,279,307), an apology and an immediate withdrawal of the posts in his blog that they claimed libelous to the Company. The company in Malaysia manufactures components for video equipment, hard disk drives and automotive parts.

However, even before Mr. Fernandez could respond to the Company's demand, on February 21 he received an ex-parte injunction order and copies of court papers. The ex-parte order requires him to immediately remove all the posts he had in his blog about the case of the Burmese migrant workers and for him to stop any forms of communications by himself or his servants or agents about the issue.

The copies of court papers showed that the Asahi Kosei (M) Sdn. Bhd. Company had filed the legal action against Mr. Charles Hector Fernandez in court and applied for an ex-parte interlocutory injunction on 14 February 2011, the same day that Mr. Fernandez also received the copy of the Company's demand letter dated February 11.

As revealed by the timing of the dates the company sent Mr. Fernandez the demand letter and the legal action that they have pursued in court, by way of "ex-parte injunction", it was done deliberately to prevent him making a defense for himself or having the opportunity to be heard. The legal action was taken before he could respond to their first demand.

The nature of an "ex-parte" injunction is supposedly to protect the interest of the petitioner, in this case the Company; thus, this type of proceeding is done without the presence of the other party, in this case Mr. Fernandez. It explains why he was not able to receive any notice about the legal action, particularly the removal of the posts he had in his blog that is subject of the company's complaint, already taken against him in court.

The legal action against Mr. Fernandez and the issue that he had raised in his blog were a matter of public interest; thus, he should have been given the opportunity to make his defense and heard; however, in this case, he was not. You can also read our Open Letter on this case: AHRC-OLT-002-2011 .

Nevertheless, on 4 March 2011, in the conclusion of the inter-parte (with the presence of all parties) hearing regarding the "ex-parte injunction" order on Mr. Fernandez, the court has ordered to reduced the nature of the order from the original ex-parte order, now confined to just the issue of the 31 Burmese migrant workers, and the company.

However, the order to restrain Mr. Fernandez from communicating in his blog and by tweeter about the matter remains in effect. On 21 March 2011, the court continued hearing the inter-parte hearing on the ex-parte injunction order and the application of Mr. Charles Hector Fernandez to set aside this order. In the hearing, the court fixed the trial date on April 19, 20 and 21, 2011.

Meanwhile, on 12 March 2011, during the 65th Annual General Meeting, the Malaysian Bar unanimously approved a motion in support of Mr. Fernandez (read the full text).

In their motion, the Bar had emphasized: "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, the Human Rights Commission of Malaysia Act 1999, and the Criminal Procedure Code."

SUGGESTED ACTION : Please write to the companies and authorities listed below to express your concern over this case and call for the immediate and unconditional withdrawal of legal action for libel and the demand for damages against Mr. Charles Hector Fernandez.

To support this appeal, please click here:
 SAMPLE LETTER:

Dear______________,
 MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights

Name of the advocate & blogger: Mr. Charles Hector Fernandez, he is a lawyer and former member of the Malaysian Bar Council. His blog address is: charleshector.blogspot.com

Name of the Company

: Asahi Kosei (M) Sdn. Bhd. Company, a Japanese company manufacturing components for video equipment, hard disk drive and automotive parts.

The complaint of libel

: The Company claimed that his blog posts on February 8 & 9, 2011 are libelous. The Company filed a legal action in court for libel against Charles Hector on 14 February 2011, demanding from him RM10 million (USD3,279,307) for damages.

Details of the case in court : 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. Mr. Fernandez is represented by lawyers Francis Pereira and R, Shanmugam (with Taneswaran, pupil in Chambers); Asahi Kosei Sdn Bhd was represented by lawyer Tan Tai Hwa Bar Council Malaysia (Holding a Watching Brief), was represented by Daniel Lo.

I am writing to express my deep concern that the Asahi Kosei (M) Sdn. Bhd. Company has pursued in taking legal action in court against Mr. Charles Hector Fernandez.

I am aware that on 14 February 2011, the Company has sent demand letters to Mr. Fernandez for the payment of RM10 million (USD3 million) for damages, an apology for him and an immediate withdrawal of the postings they claimed libelous. However, I have since learned that even before Mr. Fernandez could respond to the Company's demand, legal action has actually been taken against him without his knowledge on the same day.

The legal action, by way of an ex-parte injunction, has already been filed; and, in fact, the court have subsequently issued an order on February 21, 2011, requiring him to immediately remove all the postings he had in his blog about the case of the Burmese migrant workers on which the Company has earlier claimed libelous. The order also required him to stop any forms of communications by himself or his servants or agents about the issue.

Although the court's injunction order on the "ex-parte" petition was subsequently reduced, by downgrading the order from the original ex-parte order to just the issue of the 31 Burmese migrant workers and the Company following the conclusion of the 4 March 2011; however, I am deeply concerned by the continued prosecution of Mr. Fernandez.

The issue concerns the complaints of 31 Burmese migrant workers upon violations of their human rights. Human rights defenders such as Mr. Charles Hector Fernandez are playing an important role to channel the complaints of the disadvantaged to the public and to express concern. It is a matter of public interest to ensure the grievances of any persons whose human rights being violated to be heard.

The legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Fernandez threatens human rights defenders who are actively raising the concern for human rights violations on migrant workers. The libel lawsuit on Mr. Fernandez not only threatens free speech, but suppresses human rights defenders from exposing the plight of migrant workers. In Malaysia, violations of human and labour rights of migrant workers by employers and the authorities mostly go unreported.

According 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, "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."

I therefore call for the immediate and unconditional withdrawal of legal action for libel and demand for damages by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez.

Yours sincerely,

--------------
PLEASE SEND YOUR LETTERS TO :

TO THE COMPANY:

Office in Malaysia

1. Mr. Takeshi Nishitsuji
President
Asahi Kosei (M) SDN. BHD.
Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong, Selangor Darul Ehsan
MALAYSIA
Tel: +60 3 89614360
Fax: +60 3 89614354
Email: asahi@po.jaring.my
Website: http://www.asahikosei.com/index.htm

Office in Japan

2. Asahi Kosei Japan Co. Ltd.
17-35, 2-chome, Kashida-nishi,
Higashi-Osaka, Osaka
JAPAN
Tel: +06 6720 6006
Fax: +06 6727 0024
Email: akj@mb2.cyberoz.net

TO THE GOVERNMENT:

1. The Human Rights Commission of Malaysia (SUHAKAM)
11th Floor, Menara TH Perdana,
Jalan Sultan Ismail, 50250 Kuala Lumpur
MALAYSIA
Tel: +60 3 2612 5600
Fax: +60 3 2612 5620
E-mail: humanrights@suhakam.org.my

2. Dato' Sri Mohd Najib Bin Tun Abdul Razak
Prime Minister of Malaysia
Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya
MALAYSIA
Tel: +60 3 8888 8000
Fax: +60 3 8888 3444


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)