The court has now fixed 24, 25 and 26 August as the new trial dates.

MALAYSIA: Human Rights Defender’s Case Update -27/6/2011

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez (Case No: 22 NCVC – 173 – 2011) is before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex

Charles Hector was represented by lawyers Francis Pereira(with Taneswaran, pupil in Chambers)

Asahi Kosei Sdn Bhd was represented by lawyer John Fam , Freeda Santhiago and Tan Tai Hwa

* Charles Hector was also present

The Judge dismissed Charles Hector’s application for a stay of proceedings at the High Court until after the appeal to the Court of Appeal against the decision of the High Court’s judge refusing Charles Hector’s application to join the said 31 Burmese migrant worker on 10/6/2011.

On the application of Charles Hector’s lawyer for an adjournment of the full trial that was fixed on 28 and 29 June, on the grounds that the Defendant needed more time to prepare the case.

This suit was filed on 14/2/2011(and Charles Hector first became aware of the suit only on 21/2/2011), and it has just been about 4 months, and there were so many applications and hearings between that time until this date, and the Defendant who has a bigger onus in this case, having to need to proof the defence of justification, fair comment and/or qualified privilege, amongst others, certainly needs more time to prepare for their case. Witnesses needed to be interviewed, etc (Note also that Charles Hector’s father passed away suddenly on 10/6/2011).

The judge finally allowed the Charles Hector’s application for an adjournment of the full trial and has now fixed 24, 25 and 26 August as the new trial dates.

Drawing  by  Liz Hilton

Notes:-

Appreciation for the solidarity and presence of civil society representatives and a representative of the Danish embassy, who also came on behalf of the European Union on 27/6/2011.

Appreciation also to the potential witnesses, who had made time and were ready to be in court as potential witnesses for Charles Hector on 28 and 29 June. Sorry for all inconvenience caused.

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 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

11/4/2011 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibiting Charles Hector from communicating vide blog (http://charleshector.blogspot.com/) and twitting, and dismissed Charles Hector’s application to set aside judgment of 17/2/2011, ordering cost to be cost in the cost for the said 2 applications, and also with regard the order of 17/2/2011.

25/5/2011 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit

10/6/2011 – Court dismisses Charles Hector’s application to join the 31

16/6/2011 – Charles Hector appeals to the Court of Appeal with regard 10/6 decision

20/6/2011 – Charles Hector files stay of proceeding pending appeal application

24/6/2011 – Court hears the application for stay of proceedings

27/6/2011 – Court dismisses stay application – but then grants adjournment of full trial.

Next date: Trial dates are now fixed for – 24, 25 and 26 August 2011)

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 also 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.

·                     Sadly, on 10/6/2011, at about 3.30am, Simon Fernandez (a.k.a. C.S. Fernandez), the father of Charles Hector Fernandez suddenly passed away. Deepest condolence to Charles Hector & family.

Malaysia: Concern about the trial against human rights defender Charles Hector Fernandez (THE OBSERVATORY)

Malaysia: Concern about the trial against human rights defender Charles Hector Fernandez

PRESS RELEASE – THE OBSERVATORY

Malaysia: Concern about the trial against human rights defender Charles Hector Fernandez

Geneva-Paris, June 27, 2011. The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), expresses its concern about the trial against human rights defender Charles Hector Fernandez, who is being sued by a company for publishing information regarding the violation of the rights of 31 Burmese migrant workers in Malaysia.

The trial against the human rights defender Charles Hector Fernandez is due to June 28 and 29, 2011 before the Shah Alam High Court. He is being sued for “defamation” by the Japanese-owned company Asahi Kosei, in Selangor, Malaysia, as he published information online regarding the violation of the rights of 31 Burmese migrant workers by this company management. Asahi Kosei Company is demanding Mr. Charles Hector Fernandez a compensation of USD 3.3 million, in addition to a public apology and the removal of the information he published.

As a well-known human rights defender and lawyer, Mr. Charles Hector Fernandez received information from Burmese migrant workers that were being threatened with termination of their contracts and deportations by Asahi Kosei Company, as they complained about being paid less than what was originally agreed with their employer. Mr. Charles Hector Fernandez contacted the company to confirm this information. As he received no reply, he began to gather information and advocate for the rights of these 31 Burmese migrant workers, in particular those who were facing immediate deportation. Mr. Charles Hector Fernandez also published the gathered information on his blog - http://charleshector.blogspot.com - between February 8 and 13, 2011.

The company’s main argument is that these 31 Burmese workers have not been under their responsibility, as they were supplied to them by an ‘outsourcing agent’. In addition, the company claims no knowledge of any threats of termination or attempted deportation.

The Observatory condemns the judicial harassment against Mr. Charles Hector Fernandez, which appears aimed at sanctioning his activities as a defender of the rights of migrant workers.

For many years, Mr. Charles Hector Fernandez has provided legal assistance to workers and migrants seeking justice. He uses his blog as a tool of advocacy for the improvement of the migrant and workers rights situation in Malaysia.

The Observatory calls upon the Court to ensure that the trial initiated against Mr. Charles Hector Fernandez comply with all fair trial guarantees provided under international and Malaysian law, and that hearings be accessible to the public, including to national and international observers.

The court has fixed 27/6/2011(Monday) as the date for her decision on the stay application of Charles Hector & 31 Burmese workers

MALAYSIA: Human Rights Defender’s Case Update -24/6/2011

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez(Case No: 22 NCVC – 173 – 2011) is before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex

Charles Hector was represented by lawyers Francis Pereira and R, Shanmugam (with Taneswaran, pupil in Chambers)

Asahi Kosei Sdn Bhd was represented by lawyer John Fam and Freeda Santhiago

Malaysian Bar (Holding a Watching Brief) was represented by Andrew Khoo and Daniel Lo

* Charles Hector was also present

This was the hearing of Charles Hector’s application for a stay of proceedings at the High Court until after the appeal to the Court of Appeal against the decision of the High Court’s judge refusing Charles Hector’s application to join the said 31 Burmese migrant worker on 10/6/2011. The appeal to the Court of Appeal was filed on 16/6/2011, and the stay application was filed on 20/6/2011. On 20/6/2011(Monday), there was a case management before the judge, and this is when she fixed the hearing date for the stay on 24/6/2011(Friday).

The judge first called all counsels into her chambers, and after some time came out in court for the hearing of this stay application. Again,  the court was cleared of all others who were present by the court, who interestingly was interested to know whether there was anyone from the embassies, but even the Danish embassy rep, also appearing for the European Union was asked to leave the court before the hearing proceeded.

After the hearing, the court has now fixed 27/6/2011(Monday) as the date for her decision on the stay application. Note the trial dates is still on 28/6/2011(Tuesday) and 29/6/2011(Wednesday).

Notes:-

Charles Hector applied to court to join the said 31 migrant workers as parties in the suit, as the said workers were the victims of the human rights highlighted, the source of information highlighted, and certainly persons “whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon”. These workers, after being joined as parties, would also have the right put in claims who is the real employer, and the obligations that Asahi Kosei has towards these workers against Asahi Kosei. One of the key issues that the court will have decide on is the question of.

If the High Court refuses the stay application, Charles Hector has the right to make a stay application to the Court of Appeal where the appeal is pending. Malaysian court rules state that the stay application must first be made to the High Court.

If stay is not granted, and the court proceeds with the trial, Charles Hector’s appeal to the Court of Appeal will be rendered nugatory (useless) for even if the Court orders that the 31 workers to be joined as parties, the trial may have started or even over by then. This is why we hope the High Court will grant the stay application on Monday.

Asahi Kosei’s lawyers have apparently told the court that 26 of the said workers are back working at the factory, and that their work permits have all been extended but the facts is that 5 workers, including the 2 who they tried to send back to Burma on 7/2/2011, and 2 others who lodged complaints at the Human Rights Commission and Labour Department, that they subsequently took away for processing to be send back to Burma are not amongst the 26. If they are made parties to the suit, then they will also NOT have a clear legitimate right and reason to remain in Malaysia, not to be sent back to Burma or have their permits cancelled or not renewed. If their permits expire and/or is cancelled, these migrant workers will then become undocumented, or what the government calls ‘illegal migrants’, and they can at anytime be arrested, detained, charged, convicted, sentenced (even whipped) and/or deported. Hence, Charles Hector’s defence may be highly prejudiced if these workers are not joined as parties, and the court does not grant a stay on Monday (27/6/2011) for him to effectually pursue his right of appeal to the Court of Appeal. Without the actual victims and these primary sources of information, Charles Hector will suffer great prejudice and may not get a fair trial.

Appreciation for the solidarity and presence of civil society representatives and a representative of the Danish embassy, who also came on behalf of the European Union on 24/6/2011.

Next date: 27/6/2011(Court will give decision on stay application)

[Trial dates are still fixed for – 28 and 29 June 2011)

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 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

11/4/2011 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibiting Charles Hector from communicating vide blog (http://charleshector.blogspot.com/) and twitting, and dismissed Charles Hector’s application to set aside judgment of 17/2/2011, ordering cost to be cost in the cost for the said 2 applications, and also with regard the order of 17/2/2011.

25/5/2011 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit

10/6/2011 – Court dismisses Charles Hector’s application to join the 31

16/6/2011 – Charles Hector appeals to the Court of Appeal with regard 10/6 decision

20/6/2011 – Charles Hector files stay of proceeding pending appeal application

24/6/2011 – Court hears the application for stay of proceedings

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 also 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.

·                     Sadly, on 10/6/2011, at about 3.30am, Simon Fernandez (a.k.a. C.S. Fernandez), the father of Charles Hector Fernandez suddenly passed away. Deepest condolence to Charles Hector & family.

HRW : Malaysia: Lawsuit Against Rights Defender Impedes Public Debate

Malaysia: Lawsuit Against Rights Defender Impedes Public Debate

Blogger on Migrant Workers’ Treatment Faces Company’s Defamation Claim

June 22, 2011

(Tokyo) - A defamation lawsuit against a human rights defender who blogged against violations of migrant worker rights threatens to chill debate on matters of public interest in Malaysia, Human Rights Watch said today. In a case currently before the Malaysian courts, the Malaysian subsidiary of Asahi Kosei Japan Co. Ltd. brought a defamation suit for 10 million ringgit (US$3.3 million) against Malaysian activist Charles Hector for his blog posts on February 8 and 9, 2011, criticizing the treatment of Burmese migrant workers at the company's facility.

Hector's blog posts were based on information gathered by interviewing 31 Burmese migrant workers. Two days before posting the information online, he emailed his allegations to the company seeking a response but received no reply. The company claims Hector's emails went to an account that was rarely used. Asahi Kosei filed a lawsuit six days later. The company's claims do not appear to contest the information about rights abuses in the blogs but rather assert that Hector mischaracterized the work relationship of the migrant workers who were not the company's responsibility because they were supplied by an outside firm and not placed on the company's direct payroll.

"The astronomical sums being demanded by Asahi Kosei threaten both to bankrupt the defendant and to intimidate labor and human rights defenders all over Malaysia," said Phil Robertson, deputy Asia director at Human Rights Watch. "A company's right to protect its reputation should not become a way to cut off important discussions of matters of public concern."

On February 17, Asahi Kosei obtained an injunction that prevents Hector from blogging about the company's treatment of migrant workers until the end of the trial, which could take many years. The trial is expected to begin on June 28.

On March 11, the Malaysian Bar issued a statement supporting Hector. Citing the Whistle Blowers Protection Act 2010, the Human Rights Commission of Malaysia Act 1999, and other laws, the bar stated that, "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."

Migrant worker rights have long been a concern in Malaysia. Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers. Employers frequently seize migrant workers' passports, limiting their freedom of movement. Many migrant workers pay exorbitant recruitment fees to labor brokers in their home country and in Malaysia, making them effectively debt-bonded until they can pay back the fees. Ministry of Home Affairs regulations prohibit migrant workers from forming associations and unions. And a migrant worker who becomes undocumented faces arrest as an "illegal migrant" - male migrants found to be illegal are subject to caning, which is a form of torture.

For over a decade, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted that civil defamation laws, like criminal defamation laws, can improperly restrict freedom of expression. Abid Hussain, the special rapporteur in 2000, outlined a list of minimum requirements that civil defamation laws need to satisfy to respect the right to freedom of expression. Several pertain to lawsuits brought by private parties as well as by government officials, including:

Sanctions for defamation should not be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive, and impart information. Damage awards should be strictly proportionate to the actual harm caused.

Defamation laws should reflect the importance of open debate about matters of public interest.

Where publications relate to matters of public interest, it is excessive to require truth in order to avoid liability for defamation; instead, it should be sufficient if the author has made reasonable efforts to ascertain the truth.

"Malaysia has an extremely poor reputation on freedom of expression," Robertson said. "Improving the right to a free airing of views on human rights issues won't be achieved by ‘privatizing' excessive restrictions on speech." - Human Rights Watch

*


More Coverage:
Associated Press- Company Chastised for Suing Malaysia Rights Lawyer
Free Malaysia Today- Lawsuit Against Blogger Threatens Free Speech

The astronomical sums being demanded by Asahi Kosei threaten both to bankrupt the defendant and to intimidate labor and human rights defenders all over Malaysia. A company’s right to protect its reputation should not become a way to cut off important discussions of matters of public concern.

- Phil Robertson, deputy Asia director at Human Rights Watch

Human Rights Watch : Lawsuit Against Rights Defender Impedes Public Debate

http://www.hrw.org/node/100006

 

For Immediate Release

 

Malaysia: Lawsuit Against Rights Defender Impedes Public Debate

 

Blogger on Migrant Workers’ Treatment Faces Company’s Defamation Claim

(Tokyo, June 23, 2011) – A defamation lawsuit against a human rights defender who blogged against violations of migrant worker rights threatens to chill debate on matters of public interest in Malaysia, Human Rights Watch said today. In a case currently before the Malaysian courts, the Malaysian subsidiary of Asahi Kosei Japan Co. Ltd. brought a defamation suit for 10 million ringgit (US$3.3 million) against Malaysian activist Charles Hector for his blog posts on February 8 and 9, 2011, criticizing the treatment of Burmese migrant workers at the company’s facility.

Hector’s blog posts were based on information gathered by interviewing 31 Burmese migrant workers. Two days before posting the information online, he emailed his allegations to the company seeking a response but received no reply. The company claims Hector’s emails went to an account that was rarely used. Asahi Kosei filed a lawsuit six days later. The company’s claims do not appear to contest the information about rights abuses in the blogs but rather assert that Hector mischaracterized the work relationship of the migrant workers who were not the company’s responsibility because they were supplied by an outside firm and not placed on the company’s direct payroll.

“The astronomical sums being demanded by Asahi Kosei threaten both to bankrupt the defendant and to intimidate labor and human rights defenders all over Malaysia,” said Phil Robertson, deputy Asia director at Human Rights Watch. “A company’s right to protect its reputation should not become a way to cut off important discussions of matters of public concern.”

On February 17, Asahi Kosei obtained an injunction that prevents Hector from blogging about the company’s treatment of migrant workers until the end of the trial, which could take many years. The trial is expected to begin on June 28.

On March 11, the Malaysian Bar issued a statement supporting Hector. Citing the Whistle Blowers Protection Act 2010, the Human Rights Commission of Malaysia Act 1999, and other laws, the bar stated that, “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.”

Migrant worker rights have long been a concern in Malaysia. Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers. Employers frequently seize migrant workers’ passports, limiting their freedom of movement. Many migrant workers pay exorbitant recruitment fees to labor brokers in their home country and in Malaysia, making them effectively debt-bonded until they can pay back the fees. Ministry of Home Affairs regulations prohibit migrant workers from forming associations and unions. And a migrant worker who becomes undocumented faces arrest as an “illegal migrant” – male migrants found to be illegal are subject to caning, which is a form of torture.

For over a decade, the UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression has noted that civil defamation laws, like criminal defamation laws, can improperly restrict freedom of expression. Abid Hussain, the special rapporteur in 2000, outlined a list of minimum requirements that civil defamation laws need to satisfy to respect the right to freedom of expression. Several pertain to lawsuits brought by private parties as well as by government officials, including:

• Sanctions for defamation should not be so large as to exert a chilling effect on freedom of opinion and expression and the right to seek, receive, and impart information. Damage awards should be strictly proportionate to the actual harm caused.
• Defamation laws should reflect the importance of open debate about matters of public interest.
• Where publications relate to matters of public interest, it is excessive to require truth in order to avoid liability for defamation; instead, it should be sufficient if the author has made reasonable efforts to ascertain the truth.

“Malaysia has an extremely poor reputation on freedom of expression,” Robertson said. “Improving the right to a free airing of views on human rights issues won’t be achieved by ‘privatizing’ excessive restrictions on speech.”

For more Human Rights Watch reporting on Malaysia, please visit:

http://www.hrw.org/en/asia/malaysia

For more information, please contact: 

In Bangkok, Phil Robertson (English, Thai): +66-85-060-8406 (mobile); or robertp@hrw.org

In Tokyo, Kanae Doi (English, Japanese): +81 35282 5160; or doik@hrw.org

 

In New York, Mickey Spiegel (English): +1-212-216-1229; or spiegem@hrw.org

 

Human Rights Defenders: An appeal to the Court of Appeal dated 16/6/2011 to join 31 workers as parties have been filed

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez(Case No: 22 NCVC – 173 – 2011) is before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex 

An appeal to the Court of Appeal dated 16/6/2011 have been filed with regard the High Court’s decision on 10/6/2011 to dismiss the application of Charles Hector to join the said 31 Burmese migrant workers as parties in the suit. 

The victims are these 31 workers. The source of information is the 31 workers. The subject matter of all the said blog postings is what happened to these 31 workers. The issues before the court are about these workers’ rights – Employer’s duties and obligation to workers? Even if not employer, Asahi Kosei’s obligations and duties towards these 31 workers that worked for them? Given the fact that they are all migrant workers, so easily can their work passes be cancelled, and they risk being send off to Burma before the complaints and claims to rights is heard and disposed off. As it is working in Asahi Kosei now is only 26 of the 31 workers.

Charles Hector have filed an application for a stay of proceedings in the High Court until after the appeal to the Court of Appeal is heard and disposed off. The Judge, on 20/6/2011, a date fixed for case management has now fixed the hearing date for this stay application on 24/6/2011(Friday) at 9.00am.

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 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

11/4/2011 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibiting Charles Hector from communicating vide blog (http://charleshector.blogspot.com/) and twitting, and dismissed Charles Hector’s application to set aside judgment of 17/2/2011, ordering cost to be cost in the cost for the said 2 applications, and also with regard the order of 17/2/2011.

25/5/2011 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit

10/6/2011 – Court dismisses Charles Hector’s application to join the 31

16/6/2011 – Charles Hector appeals to the Court of Appeal with regard 10/6 decision

20/6/2011 – Charles Hector files stay of proceeding pending appeal application

Next date: 24/6/2011(Hearing date for stay pending appeal application)

[Trial dates that were fixed – 28 and 29 June 2011)

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 also 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.

Sadly, on 10/6/2011, at about 3.30am, Simon Fernandez (a.k.a. C.S. Fernandez), the father of Charles Hector Fernandez suddenly passed away. Deepest condolence to Charles Hector & family

MALAYSIA: Human Rights Defender’s Case Update (10/6/2011)

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.

The case was fixed for decision on Charles Hector’s application to join the 31 Burmese migrant workers, who were not just the source of information but also the subject matter of the human rights violations that were highlighted in the said blog, for 10/6/2011.

The court dismissed this application. The decision of the Judge was read out by the Registrar.

Sadly, on this day at about 3.30am, Simon Fernandez (a.k.a. C.S. Fernandez), the father of Charles Hector Fernandez suddenly passed away. Deepest condolence to Charles Hector & family.

Next date: 28/6/2011 and 29/6/2011(dates currently fixed for full trial)

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 – 1^st hearing date of Company’s inter-parte application for an interlocutory injunction.

1^st hearing date for Charles Hector’s application to set aside ex-parte order of 17/2/2011

21/3/2011 – 2^nd hearing date for both applications

30/3/2011 – 3^rd hearing date for both applications

11/4/2011 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibiting Charles Hector from communicating vide blog (http://charleshector.blogspot.com/) and twitting, and dismissed Charles Hector’s application to set aside judgment of 17/2/2011, ordering cost to be cost in the cost for the said 2 applications, and also with regard the order of 17/2/2011.

25/5/2011 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit

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 also 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.

• Apologies for the delay