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 – 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
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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