The Asian Forum for Human Rights and Development (FORUM-ASIA) received information regarding a law suit being filed against Mr. Charles Hector Fernandez, a Malaysian human rights lawyer, activist and blogger over defamation. Mr. Hector raised concerns on his blog and via twitter about human rights and labour rights violations of 31 Burmese migrant workers of the Asahi Kosei (M) Sdn. Bhd., a Japanese company employing migrant workers in Malaysia.  Based on the information revealed on the blog, Asahi Kosei accuses Mr. Hector of defamation.

On 8 and 9 February 2011, Mr. Hector uploaded two posts to his blog on the grievances raised by the 31 Burmese workers. The workers alleged that their wages were unlawfully deducted and monetary penalties were made for absences from work. When the workers sought for compensation and a fair treatment, they were threatened with termination of employment and possible deportation back to Burma. The workers are paid by an outsourcing agent, Metro Excel Resources Sdn Bhd. However, Charles Hector is of the opinion that once the workers are supplied to Asahi Kosei (M) Sdn. Bhd., an employment relationship automatically arises. In 2010, Malaysian Deputy Prime Minister Tan Sri Muhyiddin Yassin stated“[that] employers … should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility.”

Before posting about the workers’ complaints on his blog, Mr. Hector sent an email to Asahi Kosei (M) Sdn. Bhd. for clarification and verification. The mail requested literally that “if there is 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 Mr. Hector went ahead and posted the complaints of the Burmese migrant workers on his blog, advocating for the protection of the 31 workers in general and those workers who were facing immediate deportation in particular.

On 14 February 2011 Mr. Hector received a letter from the law firm, T.S Teoh & Partners, on behalf of the Asahi Kosei (M) Sdn. Bhd. in which they accused him of having “committed defamation” for publishing “untrue allegations” about Asahi Kosei (M) Sdn. Bhd. The company demanded Mr. Hector to pay 10 million Malaysian ringgit (3,309,600 USD) within seven days, to immediately withdraw the posts and to write an apology which should be published on his blog within 24 hours, and appear in all major English newspapers to be circulated nationwide within three days.

A week later, on 21 February 2011, Mr. Hector received an ex-parte court order obtained by Asahi Kosei’s lawyers, requesting Mr. Hector to remove all the said postings immediately and to stop from making further public statements on his blog or other media about the legal action being taken against him and the plight of Burmese migrant workers.

On 11 April 2011, the court affirmed, after 4 hearings, a previous narrow order which restricted Charles Hector from communicating through his blog and twitter on the case of the 31 Burmese migrant workers until the end of the trial. The next hearing is scheduled 13 May 2011 and the trial is set for 28 and 29 June 2011.

On 12 March 2011, the Malaysian Bar unanimously approved a motion in support of Mr. Hector. In their motion, the Bar had emphasized: “public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, the Human Rights Commission of Malaysia Act 1999, and the Criminal Procedure Code.”

FORUM-ASIA believes that Mr. Charles Hector merely highlighted on his blog complaints of the 31 Burmese migrant workers and the allegation that they were paid far less than what was promised. Mr. Hector acted on behalf of the workers who are not familiar with their rights in Malaysia and helped them in lodging a complaint with SUHAKAM, the Human Rights Commission of Malaysia. SUHAKAM sent their recommendations to the Labour Department.

The defamation charges and the lawsuit filed against Charles Hector hinder him in his work as a human rights defender, advocating the rights of the 31 Burmese migrant workers. Rather than investigating and ensuring that workers’ rights are protected, Asahi Kosei (M) Sdn. Bhd. chose to sue the person who highlighted these violations. The legal action against Mr. Hector not only threatens free speech in Malaysia, but also has a chilling effect on other human rights defenders, organizations and ‘whistle blowers’ who report such violations and might cause them to refrain from exposing abuses committed by businesses in Malaysia.

Moreover, Article 6 of the Declaration on Human Rights Defenders explicitly says that “everyone has the right, individually and in association with others … [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms…” The government of Malaysia has the corresponding obligation to take all necessary measures to protect defenders like Mr. Charles Hector against any retaliation as a consequence of his legitimate right to free speech and use it to expose human rights violations.

_______________________________

SUGGESTED ACTION:

Please write letters to the Asahi Kosei (M) Sdn. Bhd., including to its headquarters in Japan to show your deep concern over this case and request the immediate and unconditional withdrawal of the legal action against Mr. Charles Hector. Request them 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.

_______________________________

Sample Letter:

Mr. Nishitsuji
President of Asahi Kosei (M) Sdn. Bhd.
Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong,
Selangor Darul Ehsan, Malaysia
Tel. No. +603-89614360
Fax +603-89614354
Email [email protected]

Dear Mr. Nishitsuji,

I am writing to express my deep concern regarding the case of Mr. Charles Hector Fernandez, a Malaysian human rights lawyer, activist and blogger. I was informed that Asahi Kosei (M) Sdn. Bhd. filed a defamation lawsuit against Mr. Charles Hector for raising concerns on his blog and via twitter about alleged human rights and labour rights violations of 31 Burmese migrant workers who were supplied by outsourcing agent, Metro Excel Resources Sdn. Bhd. to work at Asahi Kosei (M) Sdn. Bhd.

On 8 and 9 February 2011, Mr. Hector uploaded two posts to his blog http://charleshector.blogspot.com/ on the grievances raised by the 31 Burmese workers. The workers alleged that their wages were unlawfully deducted and monetary penalties were made for absences from work. When the workers sought for compensation and a fair treatment, they were threatened with termination of employment and possible deportation back to Burma. Although the workers are paid by the outsourcing agent, Metro Excel Resources Sdn Bhd., the Malaysian Deputy Prime Minister Tan Sri Muhyiddin Yassin has stated in 2010 “[that] employers … should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility.”

Before posting about the workers’ complaints on his blog, Mr. Hector sent an email to Asahi Kosei (M) Sdn. Bhd. for clarification and verification. The mail requested literally that “if there is 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”. Asahi Kosei did not respond and Mr. Hector went ahead and posted the complaints of the Burmese migrant workers on his blog, advocating for the protection of the 31 workers in general and those workers who were facing immediate deportation in particular.

On 14 February 2011, Mr. Hector received a letter from the law firm, T.S Teoh & Partners, on behalf of the Asahi Kosei (M) Sdn. Bhd. Company in which they accused him of having “committed defamation” for publishing “untrue allegations” about Asahi Kosei (M) Sdn. Bhd. The company demanded Mr. Hector to pay 10 million Malaysian ringgit (3,309,600 USD) within seven days, to immediately withdraw the posts and to write an apology which should be published on his blog within 24 hours, and appear in all major English newspapers to be circulated nationwide within three days.

I am gravely concerned with the response of your company in filing defamation suit against Charles Hector instead of replying to his email to clarify the matter and investigate the allegations of the workers.

On 12 March 2011, the Malaysian Bar unanimously approved a motion in support of Mr. Hector. In their motion, the Bar had emphasized: “public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, the Human Rights Commission of Malaysia Act 1999, and the Criminal Procedure Code.”

I believe as human rights defender, Mr. Charles Hector merely highlighted on his blog complaints of the 31 Burmese migrant workers and the allegation that they were paid far less than what was promised. Mr. Hector acted on behalf of the workers who are not familiar with their rights in Malaysia and helped them in lodging a complaint with SUHAKAM, the Human Rights Commission of Malaysia.

Therefore, we urge you to:

Immediately and unconditionally withdraw all legal actions against Mr. Charles Hector;
Launch immediate investigations into the authenticity of the allegations of 31 Burmese migrant workers on violations of their labour rights;
Uphold human rights and labour rights as part of your company policy and responsibility to prevent the committing or continuation of any human rights abuses against migrant workers.

Yours sincerely,

_______________________________

Please send your letters to:

Asahi Kosei (M) Sdn. Bhd.
Mr. Nishitsuji

Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong,
Selangor Darul Ehsan, Malaysia
Tel. No. +603-89614360
Fax +603-89614354
Email [email protected]

Asahi Kosei Japan Co. Ltd.
17-35, 2-chome, Kashida-nishi,
Higashi-Osaka, Osaka
Japan
Tel. No. +06 6720 6006
Fax +06 6727 0024
Email [email protected]