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.