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 – 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
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.
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