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 – 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 [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.
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