Libel suits undermine the legitimate work of human rights defenders (FIDH - 29/8/2011)

 

29 August 2011

 

Geneva-Paris, August 26, 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 outcome of the judicial case against human rights defender Charles Hector Fernandez, who was sued by a company for publishing information regarding the violation of the rights of 31 Burmese migrant workers in Malaysia.

 

On August 25, 2011, the case against human rights defender Charles Hector Fernandez before the Shah Alam High Court ended in a settlement between the defender and the company that had sued him for civil “defamation”. According to the settlement, Mr. Charles Hector Fernandez will pay 1 Malaysian Ringgit (less than one USD) in costs and the same amount in damages to the company, and will publish a half-page apology in the Malaysian daily newspapers The Star and Nanyang Siang Pau.

Mr. Charles Hector Fernandez was sued in February 2011 by the Japanese-owned company Asahi Kosei, in Selangor, Malaysia, for publishing information on-line regarding the violation of the rights of 31 Burmese migrant workers by this company management. Asahi Kosei Company was demanding a compensation of USD 3.3 million, in addition to a public apology, with the argument that these 31 Burmese workers have not been under their responsibility, as they were supplied to them by an ‘outsourcing agent’[1].

The Observatory sent an international mission to observe the trial against Mr. Charles Hector Fernandez and to investigate the situation of human rights defenders in Malaysia.

“The case of Charles Hector Fernandez shows how powerful corporate interests are taking on and silencing a human rights defender by his horns. Using exorbitant civil libel claims against human rights defenders reporting alleged corporate abuse sends a dangerous precedent with a chilling effect on the legitimate work of human rights defenders”, said Ms. Sudha Ramalingam, following the observation of the trial.

The Observatory is concerned that the human rights defender in this case was left with little choice other than accepting a settlement having the effect of sanctioning his activities as a defender of the rights of migrant workers. For many years, Mr. Charles Hector Fernandez has provided vital legal assistance to workers and migrants seeking justice.

The Observatory calls upon the authorities of Malaysia to put an end to all forms of harassment against human rights defenders in the country, including through criminal or civil libel laws, and to ensure full conformity with the United Nations Declaration on Human Rights Defenders and other international and regional instruments ratified by Malaysia. The Observatory also reminds private actors including business enterprises of their responsibility of respecting human rights and exercising due diligence to avoid complicity in abusing human rights in countries where they operate. - Source: FIDH Website

MALAYSIA: Human Rights Defender’s case closes

MALAYSIA: Human Rights Defender’s case closes 

On the 25^th August 2011 after an exhausting, expensive and exasperating six months Charles Hector and Asahi Kosei arrived at a settlement. According to the settlement, Charles Hector will pay RM1 in costs and RM1 in damages to Asahi Kosei. A further condition that Charles Hector has to satisfy is the publication of a half-page advertisement in The Star national daily newspaper and in the Nanyang Siang Pau national daily newspaper .

We hope that this  court case acts as  a wake up call for all stakeholders, including government authorities, international agencies, diplomats ,trade unions, business corporations,  to urgently review  mechanisms to  uphold the rights of migrant workers and human rights defenders.

  Although the court case is over the situation of migrant workers still requires your vigilance and Charles Hector as a human rights defenders still requires your support. He has already incurred considerable debt during this struggle.  Now he must find a further USD7000 urgently to pay for the advertisements required by Asahi kosei within the next 21 days.

 Contribution can be making to:

Persatuan Aliran Kesedaran Negara
Bank account number: 107 246 109 510.
Malayan Banking Berhad, Green Lane branch, Penang, Malaysia.
(If you are outside Malaysia, please include the “SWIFT” code for our bank: MBBEMYKL)

Also, email to aliran@streamyx.com after making a donation to advise who it's from and what it’s for and the date of payment.

 We thank each and every one of you for your support and   trust we will    all continue to work in solidarity   for social justice.

In Defence of Charles Hector campaign team

25/8/2011 - Settlement Reached - Case Ends

This morning, parties re-visited the question of settlement, and finally a settlement was reached, and the court recorded the settlement.

In short, parties shall withdraw the action both in the High Court and the Court of Appeal, Charles Hector to pay RM1 as damages, RM1 as cost and also cause to publish in the The Star and Nanyang Siang Pau, half-page advertisements within 21 days, a statement agreed upon, which is also part of the entered consent judgment. (We shall post the exact wordings of this statement, if and when we get it, at a later date)

* The cost of half page adverts in a newspaper, with national circulation, is very high  - estimated about RM22,000. For Star, it will be about RM12,000 and for Chinese Daily, it is about RM10,000. Help is needed to raise this money, and we hope that you could send the monies urgently to the Defence Fund set up by ALIRAN (details at the top of this Blog page)

24/8/2011 - Application for the judge to recuse herself made

On 24/8/2011 - Christopher Leong (Counsel for Charles Hector) made an application for the Judge to recuse herself on the grounds that the judge had already made certain determinations/findings about the case, which should only made after the full trial, after the court had heard all witnesses, accessed the witnesses and heard submissions. He referred the court to the grounds of Judge's decision that was made on 11/4/2011 when she allowed Asahi Kosei's application for an interim injunction and dismissed Charles Hector's application to set aside the ex-parte order of 17/2/2011. 

Christopher Leong refered to portions of the judgment, and pointed out, amongst others,

a) that the judge had made a determination that the information contained in the said postings were "unverified" ;

b) that Charles Hector do not have a duty to highlight human rights violations through the blog

and that these determinations would affect the defences of fair comment on matters of public interest, and also the defence of qualified privilege.

Christopher Leong pointed out that these were not mere comments, but findings and determinations.

Hence, these are not mere 'allegations of bias' based on comments made, etc - but on a fact that determinations have already been made on material points which would result on the inability to get a fair trial, more so in a defamation case, and now at trial the burden placed on the Defendant even before trial commences is so much higher - having to convince the trial judge that she was wrong, and this should not be. In a trial, the judge must be independent, and should not have made any determinations on facts and law until she has had the opportunity to hear and assess the evidence and submissions that is brought to the court's attention during the trial.   

The hearing for recusal commenced at about 2.30pm, and after hearing submissions of both parties, the judge adjourned for the day, and said that she would give her decision the following day at 10.00am.

** Recusal - an application asking the judge to excuse herself and not hear this case. Then another judge would be appointed to hear the case.

HRW Letter to Japanese Ambassador in US (19/8/2011)

Court of Appeal dismisses activist's stay application (The Sun Daily, 23/8/2011)

Court of Appeal dismisses activist's stay application

Posted on 23 August 2011 - 08:12pm

Tan Yi Liang
newsdesk@thesundaily.com

PUTRAJAYA (Aug 23, 2011): The Court of Appeal today dismissed an application filed by human rights activist Charles Hector Fernandez to stay a RM10 million libel suit against him at the Shah Alam High Court, pending the hearing of another application before the appellate court.

The quorum comprising Justices Datuk Zainun Ali, Datuk Zahariah Ibrahim and Anantham Kasinather also ordered Fernandez to pay RM10,000 cost to the plaintiff, Asahi Kosei (M) Sdn Bhd.

With the ruling, the libel suit is set to proceed today at the Shah Alam High Court before Judge Lim Yee Lan. 

The court has set three days for the trial.

In submissions before the quorum, Fernandez's counsel, Francis Pereira said the application was made as hearings were pending in October for an application before the Court of Appeal over entering 31 Myanmar nationals as parties to the libel suit.

The 31 were said to be employees of the plaintiff in the libel suit, Asahi Kosei (M) Sdn Bhd.

"A determining factor would be who is the employer of these workers. Our argument is if the court is going to determine the employer of the workers, the workers must be made parties to the proceedings," said Pereira.

Asahi Kosei, an electronics and automotive parts manufacturer had filed the suit on Feb 14, 2011 seeking RM10 million in damages for six blog posts written by Fernandez related to the treatment of the 31 workers.

In rebuttal, Asahi Kosei counsel John Fam Sin Nin said that the application to make the Myanmar nationals parties to the proceedings was inconsistent with the earlier stand of the defence to call the 31 workers as witnesses.

Speaking to media after proceedings, Pereira said that one of the counter-claims sought was a declaration that Asahi Kosei is the employer of the workers and is responsible for their welfare.

"Based on that, we filed an application to add the workers as parties to the proceeding because if the court is going to determine who the employer is, the employees better be there," said Pereira. - The Sun Daily, 23/8/2011, Court of Appeal dismisses activist's stay application

APPELLATE COURT DENIES STAY ORDER TO HUMAN RIGHTS ACTIVIST (Bernama)

APPELLATE COURT DENIES STAY ORDER TO HUMAN RIGHTS ACTIVIST

PUTRAJAYA, Aug 23 (Bernama) -- A human rights activist failed to obtain an order from the Court of Appeal here to stay the trial of a defamation suit filed against him, which was scheduled tomorrow.

Justices Datuk Zainun Ali, Datuk Zaharah Ibrahim and Anantham Kasinather dismissed Charles Hector Fernandez''s stay application and ordered him to pay RM10,000 in legal costs.

Japanese company, Asahi Kosei Sdn Bhd, sued Fernandez for defamation over his blog posts which highlighted the plight of Myanmar migrant workers working in the factory.

The Shah Alam High Court has set three days, beginning tomorrow, for trial of the suit.

Fernandez, who is also a lawyer, sought for a stay of the trial, pending his appeal to the appelllate court concerning his application to include the 31 migrant workers as defendants in the suit, which was rejected by the High Court.

The appeal is fixed for hearing at the Court of Appeal on Oct 5.

Asahi Kosei sought damages of RM10 million, claiming that six entries published in Fernandez''s blog contained false statements, resulting in the company receiving queries from its clients, demanding explanation over the blog entries.

Fernandez was represented by Francis Pereira and Sharmini Thiruchelvam while John Fam Sin Nin appeared for the company. 

-- BERNAMA [Bernama, 23/8/2011,APPELLATE COURT DENIES STAY ORDER TO HUMAN RIGHTS ACTIVIST]

Also reported in New Straits Times, 23/8/2011, Appelate Court denies stay order to human rights activist

MySinchew.Com, 23/8/2011, Appellate court denies stay order to activist

Malaysiakini, 23/8/2011, Appellate court denies stay order to rights activist

Mahkamah Rayuan tolak permohonan aktivis tangguh bicara

23/08/2011 5:04pm

PUTRAJAYA 23 Ogos - Seorang aktivis hak asasi manusia gagal mendapatkan perintah daripada Mahkamah Rayuan di sini bagi penangguhan perbicaraan saman fitnah yang difailkan terhadapnya, yang dijadualkan esok.

Hakim Datuk Zainun Ali, Hakim Datuk Zaharah Ibrahim dan Hakim Anantham Kasinather menolak permohonan Charles Hector Fernandez bagi penangguhan perbicaraan itu dan memerintahkannya membayar RM10,000 bagi kos undang-undang.

Syarikat Jepun, Kosei Sdn. Bhd., menyaman Fernandez bagi memfitnah berhubung tulisan dalam blognya yang memaparkan masalah pekerja Myanmar di kilang itu.

Mahkamah Tinggi Shah Alam menetapkan tiga hari bermula esok bagi perbicaraan saman itu.

Fernandez, yang juga seorang peguam, memohon perbicaraan ditangguhkan sementara menunggu keputusan rayuannya di mahkamah rayuan berhubung permohonannya bagi disenaraikan 31 pekerja asing itu sebagai defendan dalam saman itu, yang telah ditolak oleh Mahkamah Tinggi. - Bernama - Utusan Malaysia Online, 23/8/2011, Mahkamah Rayuan tolak permohonan aktivis tangguh bicara

Court of Appeal dismiss stay application, ordered Charles Hector to pay RM10,000 as cost to Asahi Kosei , Full trial is commence from August 24-26 at Shah Alam high court

MALAYSIA: Human Rights Defender’s Case Update -23/8/2011

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

Court of Appeal at Putrajaya (Civil Appeal No B-02 (NCVC) 1709-2011)

Charles Hector was represented by lawyers Francis Pereira, Sharimini Thiruselvam

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 Daniel Lo

* Charles Hector was also present

The Court of Appeal (panel of 3 judges) dismissed Charles Hector’s application to stay the proceedings of the High Court until after the Appeal to the Court of Appeal is heard .The relevant appeal at the Court of Appeal was fixed for hearing on 5/10/2011.

The main argument was that if a stay was not granted, and the trial proceeds at the High Court, then the appeal will be rendered nugatory. Why? Even if the appeal is allowed on 5/10/2011, certainly the 31 workers who would be joined as parties, they would be prejudiced because the trial had started. In a stay application, the court of appeal is not supposed to look at the merits of the Appeal fixed for hearing on 5/10/2011, they are not supposed to consider whether that appeal will be successful or not.  The only question being whether stay be granted until after the appeal is heard and disposed off.

Not only did the Court of Appeal dismiss this application, they also ordered Charles Hector to pay RM10,000 as cost to the Plaintiff (Asahi Kosei). This was exhorbitant considering that even in a full appeal that the court earlier heard, the cost that had to be paid was RM5,000, and this was a simple small application which Charles Hector was forced to make when the Court of Appeal fixed the hearing date of the appeal on 5/10/2011 – Lawyers did try to get this appeal to be heard before 24/8/2011 – but the earliest date that Court of Appeal could give was 5/10/2011, and that is what forced the need to make this stay application. After the hearing, before cost was awarded, the court asked the company’s lawyer how much they wanted, and they asked for RM10,000, and then they asked Charles Hector’s lawyer, who said that reasonably it should not be more than RM2,000 – and then the court made the order that Charles Hector pay RM10,000. One would have expected that the court would have asked the cost be some figure in between – but the Court of Appeal gave the company what they asked for. (Comment:- If the Court of Appeal was free to hear the Stay Application, it could very well have heard the Appeal on 23/8/2011 instead of fixing it for 5/10/2011)

Now, the trial at the High Court in Shah Alam is expected to proceed on 24/8/2011, 25/8/2011 and 26/8/2011.

Notes :-

Appreciation for the solidarity and presence of civil society representatives, members of the Burmese migrant community, a representative of the Finnish embassy who represent European Union (EU) ,and a representative from the Norwegian embassy, who also came on behalf of the European Union on 27/6/2011.Also present was Ms Sudha, from the Observatory on a mission to observe this trial, and also a Human Rights Commissioner.

Media was also present in numbers.

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 – High Court dismisses stay application – but then grants adjournment of full trial.

9/8/2011   - Court of Appeal fixes appeal to be heard on 5/10/2011 (forcing the need to file an application to stay proceedings at the Court of Appeal)

23/8/2011 – Court of Appeal dismisses stay application and orders Charles Hector to pay cost of RM10,000.

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

URGENT NEED – We need volunteers who will be able to come and take down notes during the trial, so that we could circulate these so that persons who do not attend will also be know what happened in court .

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.

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High stakes in Asahi Kosei v Charles Hector case

This is a hugely significant case that has not received enough attention and on which hinges the very definition of the employer-employee relationship.

A Japanese multinational firm based in Malaysia, Asahi Kosei, has slapped a lawsuit on human rights lawyer Charles Hector after he highlighted on his blog the problems faced by 31 Burmese workers at its factory in Malasyia.

The company is claiming that the workers are not theirs as they were supplied by an external contractor and that contractor is responsible for the workers’ wages and welfare.

Apart from the definition of employee/worker, the case puts into focus the issue of whether a human rights defender should be protected when sounding the alarm about alleged rights violations.

Tomorrow there will be a hearing in the Court of Appeal in Putrajaya at 9.00am on an application to stay proceedings in the High Court.

According to the In Defence of Charles Hector team:

It will be an open hearing. The actual quorum and court number hearing this application will normally be revealed later, usually on the hearing date – so need to check the notice boards on that day to know which court room the hearing will be.

If the Court of Appeal allows this stay application, then the trial at the Shah Alam High Court, now fixed for 24-26 August 2011 will be adjourned until after the Appeal that has been filed on the question of whether the 31 affected Burmese migrant workers be joined as parties, which is now fixed for hearing on 5 October 2011 is heard and disposed off. The Court of Appeal normally will make a decision on the same day of the hearing, i.e. on 23 August 2011.

If the stay applied for is not granted by the Court of Appeal, then the trial at the High Court in Shah Alam is expected to proceed beginning the following day, i.e. 24-26 August 2011.

Meanwhile, various groups around the world have already approached the Japanese embassies in their respective countries to express concern. See the In Defence of Charles Hector blog. 

Source: Anil Netto Blog, 22/8/2011

ATNC Monitoring Network protested at Hitachi in Hong Kong

In Hong Kong, the ATNC Monitoring Network, mainly members from Labour and China and Globalization Monitor, and SACOM went to Hitachi's office for protest this morning.

An Assistant Manager at Hitachi reiterated that it was not an issue in Hong Kong and refused to respond. The group was disappointed that the spokesperson simply denied any responsibility of the Hong Kong Hitachi office. However, he promised that he will send our statement to Hitachi headquarters. A journalist from RTHK came to report the action. Hope that it will be on air. 

 DROP THE CASE SAVE YOUR FACE

Background

* Hitachi is a customer of Asahi Kosei, and Asahi Kosei is in the supply chain of Hitachi. All the workers whose violation of rights  were highlighted by Charles Hector work at the Asahi Kosei factory producing the products of Asahi Kosei

* Hitachi has their own Hitachi Group Codes of Conduct - where they also claim that they will select suppliers that respect human rights,....they also subscribe to the UN Global Compact, and also the Electronic Industry Code of Conduct....

- this is the reason why the Hong Kong group decided to protest at Hitachi 

Chiangmai HR Defender Meet and Hand letter of concerns to Japanese Consulate - 17/8/2011

Representatives of Human Rights Defenders went to the Japanese Consulate in Chiangmai on 17/8/2011 to protest the actions of Japanese company, Asahi Kosei in Malaysia, who has commenced a legal suit against Charles Hector, for his highlighting human rights worker rights violations that were happening to 31 Burmese migrant workers in the Asahi Kosei factory. They called on the Japanese government to get this Japanese company to drop the case, and focus its attention in ensuring justice for the migrant workers.

The letter that was handed over is  as follows:-

Mr Kazuo Shibata, Consul-General

Consulate of Japan

Unit 104 – 107

Airport Business Park

90 Mahidol Rd                                                        PO Box 7

T. Haiya                                                                   Chiang Mai University

A. Muang                                                                 Chiang Mai 50100

Chiang Mai 50100                                                 Thailand

                                                                                  Tel: 66860904118

RE:      Asahi Kosei USD 3.2 million   legal suited against Malaysian Human Rights        Defender, Charles Hector

Attachments: 1. Background to the Case

                          2. Statement Released by ITUC 

Dear Mr Consul General Kazuo Shibata,

We, organizations and individuals who work to protect and promote the rights of workers,  migrants, women and refugees,  write to express our deep and continuing concerns about the USD 3.2 million libel suited files by Asahi Kosei (M) Sdn Bhd  in Malaysia against Mr. Charles Hector, human rights activists, lawyer and bloggers by reason of his highlighting of complaints of 31 Burmese workers who were working at Asahi Kosei concerning human rights and worker rights violations.

The Japanese government is not a party to this civil suit, but we are concerned over the 'silence' and ‘inaction’ on the part of the Japanese government, being also a member of OECD, as this will be perceived as implied consent and support of this attack by a Japanese company against human rights defenders, in this case Charles Hector for highlighting human rights violations.

We would also like to reiterate the Malaysian Bar’s call made on February 21 2011 [1], being the “call on Japanese authorities to launch immediate investigations into the authenticity of the allegations that Charles Hector has brought to light, and to act immediately to prevent the committing or continuation of any human rights abuses against migrant workers.”.

We also call on the Japanese Government to support and uphold the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, commonly known as the Declaration on Human Rights Defenders, which was adopted by the UN General Assembly on 9 Dec 1998.  In particular, we urge the Government to take all necessary measures to ensure the protection of these human rights defenders from any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in the Declaration.

The next trial date is August 24-26 . The matter is therefore of great urgency. We, labour rights and human rights activists, sincerely request you to respond to this issue immediately and protect the right of Charles Hector and migrant workers to expose exploitative working conditions and to end the shifting of responsibility by  Japanese companies that outsource.

Yours sincerely,

Jacqueline Pollock, Migrant Assistance Program, Chiang Mai, Thailand

(signed on behalf of the following organization and individuals):

Burma Relief Centre

Estelle Cohenny

Foundation for Education and Development (FED)

Geoff Thant

Hall Andy, IPSR, Mahidol University

Htoo Chit, Director, Foundation for the Health and Knowledge of Ethnic Labour

Khin Ohmar, Coordinator, Burma Partnership

 Lanna Action for Burma (LAB)

Omsin Boonlert

Moe Swe,  Yaung Chi Oo Workers Association (YCWOA)

Naing Aung, Secretary General, Forum for Democracy in Burma

Reena Arora
Sai Myint Thu, Secretary, Network for Democracy and Development

Studio Xang Art for Migrant Children

---

[1] http://www.malaysianbar.org.my/press_statements/press_release_defend_human_rights_defenders_and_safeguard_migrant_workers.html

Report of the Delegation of HR Defenders from Chiangmai about the meeting:-

Chiang Mai Activists Meet Vice Consul of Consulate of Japan, Chiang Mai

This morning, 17^th August, a delegation representing labour and human rights activists working with workers, migrants, women, refugees and children met with Vice Consul, Mr. Takashi Kohama of the Consulate of Japan in Chiang Mai. We presented a letter calling for the Japanese government to investigate the details of the USD 3.2 million defamation case brought against human rights lawyer and blogger, Charles Hector by a Japanese company Asahi Kosei (M) Sdn Bhd for posting information about exploitative working conditions for Burmese workers in the factory in Malaysia. The letter requested that action was taken to protect the right of Charles Hector and migrant workers to expose exploitative working conditions and to end the shifting of responsibility by Japanese companies that outsource. 

Vice Consul  Mr. Takashi Kohama expressed his concern regarding the situation. He said that in cases where Thai workers have been dissatisfied with working conditions of Japanese companies in Thailand, they have protested outside the Japanese embassy in Bangkok. Although these are cases between private companies and private workers, the embassy has tried to help a peaceful outcome to such situations.  He asked for details regarding the contact made in Malaysia with the Japanese embassy and it was reported that the Bar Council of Malaysia was at that time in a meeting with the embassy. Vice Consul  Mr. Takashi Kohama asked to be kept updated on the progress of the situation.

Jackie Pollock, Director
MAP Foundation
PO Box 7
Chiang Mai University, Thailand
Tel: 66860904118 www.mapfoundationcm.org

Thai Labour Activist Protest in Front of Japanese Embassy in Bangkok -17/8/2011

More than 20 of Thai activist and unionist read statement and submitted letter of concerns on Asahi Kosei USD 3.2 million legal suited against Malaysian Human Rights Defender, Charles Hector to Mr.Yukihiko Kaneko, First Secretary, Embassy of Japan in Thailand, Even through the Japanese government is not a party to this civil suit, but we are concerned over the 'silence' and ‘inaction’ on the part of the Japanese government, being also a member of OECD, as this will be perceived as implied consent and support of this attack by a Japanese company against human rights defenders, in this case Charles Hector for highlighting human rights violations.
(Japanese embassy Bangkok 17/08/2011 )

ITUC calls on Asahi Kosei To Drop Defamation Charges Against Human Rights Defender

Malaysia: Japanese Firm Must Drop Defamation Charges Against Human Rights Defender

and Respect the Rights of Migrant Workers

 

16 August 2011: On February 14, 2011, the Malaysian subsidiary of Japanese electronics firm Asahi Kosei filed a $3.2 million defamation suit against human rights defender Charles Hector after he posted on his blog reports he received from Burmese migrant workers detailing violations of their labour and human rights at the company.

 

The International Trade Union Confederation (ITUC) calls on the company to drop the charges, which appear to have no purpose other than to silence critics by threat of financial ruin. Further, the lawsuit has the potential to chill the speech of other workers and worker advocates who would otherwise speak out against violations of fundamental rights committed by other domestic and multinational corporations in Malaysia. The ITUC also calls upon Asahi Kosei (M) Sdn Bhd to hire its workers directly, rather than through an outsourcing agency, and to respect Malaysian and international standards on both labour and migration.

Thirty-one Burmese migrants working at Asahi Kosei (M) Sdn Bhd alleged being paid wages lower than what was promised when they agreed to migrate to Malaysia; numerous illegal (and large) wage deductions; loss of cooking utensils, electricity and even accommodation for raising employment-related grievances; and being threatened with termination and deportation of workers when they lodged complaints about these violations. Hearing this, Mr. Hector intervened on the workers’ behalf, seeking additional information and a reply to the workers’ allegations from the company. Hearing no reply, Mr. Hector posted the allegations to his blog on 8 February to pressure the company to address workers’ complaints. The company filed suit against him six days later.

One argument that the company has put forward is that it is not responsible for the workers, as they are actually supplied to the company through a third-party. Although Asahi Kosei (M) Sdn Bhd does not pay the workers directly, the workers at the factory are under their direct control and supervision, and use the tools and equipment of the factory. There is little question that Asahi Kosei (M) Sdn Bhd is, under an objective assessment of the arrangement, the employer – regardless of the contract. Indeed, ILO Recommendation 198, which sets forth criteria for ascertaining the existence of an employment relationship, suggests that an employment relationship does exist in this case. Further, we understand that the outsourcing company through which Asahi Kosei (M) Sdn Bhd procured the migrant workers was not legally registered in Malaysia under the law regulating private employment agencies.

The court dates for Mr. Hector have been set for 23-26 August. The ITUC adds its voice to urge that the company immediately drop its defamation claim against Mr. Hector. The ITUC also calls upon the company to respect the rights of workers, regardless of their contractual status, and strongly encourages it to hire workers directly. Further, the ITUC calls upon the Malaysian authorities to investigate the labour violations alleged and to take action accordingly. - International Trade Union Confederation Website

** The ITUC represents 175 million workers in 151 countries and territories and has 305 national affiliates

Also reported by Middle East North Africa Financial Network

Charles Hector legal‘s case update & Important dates for hearing

MALAYSIA: Human Rights Defender’s Case Update - 16/8/2011

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

Court of Appeal at Putrajaya (Civil Appeal No B-02 (NCVC) 1709-2011)

Hearing of Charles Hector’s application to stay the proceedings of the High Court until after the Appeal to the Court of Appeal is heard and disposed of is now fixed for 9.00am, 23/8/2011. It will be an open hearing.  The actual quorum and court number hearing this application will normally be revealed later, usually on the hearing date – so need to check the notice boards on that day to know which court room the hearing will be. 

If the Court of Appeal allows this stay application, then the trial at the Shah Alam High Court, now fixed for 24,25 and 26 August 2011 will be adjourned until after the Appeal that have been filed on the question of whether the 31 affected Burmese migrant workers be joined as parties, which is now fixed for hearing on 5/10/2011 is heard and disposed off. The Court of Appeal normally will make a decision on the same day of the hearing, i.e. on 23/8/2011.

If the stay applied for is not granted by the Court of Appeal, then the trial at the High Court in Shah Alam is expected to proceed on the following day, i.e. 24/8/2011, 25/8/2011 and 26/8/2011.

Notes

We truly appreciate the continued support that have been shown, including through physical attendance and monitoring at all hearings, by members of the public, civil society groups, European Union and the Belgium, Norwegian and Danish embassies, and look forward to your continued support. We appreciate that the Malaysian Bar is holding a watching brief in this case.

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 [Civil Appeal No B-02 (NCVC) 1709-2011]

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 –   High Court dismisses stay application – but then grants         adjournment             of full trial. New trial dates fixed on 24, 25 & 26         August.

9/8/2011-       Court of Appeal fixes the hearing date of Civil Appeal No B-02         (NCVC) 1709-2011 on 5/10/2011.

23/8/2011-     Court of Appeal to hear application for stay of High Court      proceedings until after the full appeal is heard and disposed off on        5/10/2011.

Next date: 

Court of Appeal (Putrajaya) – 23/8/2011 (Hearing of stay application)

Trial dates at Shah Alam High Court  – 24, 25 and 26 August 2011

Court of Appeal – 5/10/2011 (Hearing of the Appeal filed on 16/6/2011)

Charles Hector, Human Rights Defender, Activist, Lawyer & Blogger is being sued by the company for defamation for highlighting information of human rights and worker rights violations of workers working in Asahi Kosei’s factory on his Blog. Information 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…and A company must be responsible for all workers that work in their factory.