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MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

February 16, 2011

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-033-2011



16 February 2011
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MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

ISSUES: Human rights defenders; Migrant workers; Labour rights; Freedom of association; Freedom of assembly; Freedom of expression
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Dear friends,

The Asian Human Rights Commission (AHRC) has learned that Mr. Charles Hector Fernandez, a human rights defender and lawyer, is facing threats of legal action by Asahi Kosei (M) Sdn. Bhd. Company, a company employing migrant workers. The Company claimed that Mr. Fernandez posts on the plight of Burmese migrant workers were libelous. The legal action on Mr. Fernandez not only threatens free speech, but suppresses human rights defenders from exposing the plight of migrant workers. In Malaysia, violations of human and labour rights of migrant workers by employers and the authorities mostly go unreported.

CASE NARRATIVE
:

Mr. Charles Hector Fernandez is a lawyer and a former member of the Malaysian Bar Council. He is also an active human rights defender and a Blogger, running the Blog: charleshector.blogspot.com. In his Blog, he has been raising the issue of human rights violations against a group of Burmese migrant workers in relation to the Asahi Kosei (M) Sdn. Bhd. Company, a subsidiary of the Asahi Kosei Japan Company Limited, a Japanese company operating in Malaysia which manufactures components for video equipment, hard disk drive and automotive parts.

The issue involves about the complaints of 31 Burmese migrant workers regarding the non-compliance of agreement by their employer. The workers alleged that the employer was paying them far less than what was promised. In the process of seeking compensation and fair treatments, the workers alleged that they were threatened by gangsters and two of them escaped from being sent back to Burma. They have lodged formal complaints with the Malaysian Human Rights Commission (SUHAKAM) and the Labour Department.

Mr. Charles Hector Fernandez, who is assisting the victims to obtain remedies, posted the situation of this group of Burmese migrant workers in his Blog. In his blog, he also asked others to intervene on behalf of the victims. A media statement signed by 77 organizations was issued on 11 February 2011 (full text of the statement), calling for the Company to respect the human rights of the Burmese migrants workers. However, the Company complained that the content of his posts on February 8 and 9, 2011 is libelous and damaging:

Hopefully ASAHI KOSEI (M) SDN. BHD wont terminate/deport workers who claim rights
http://charleshector.blogspot.com/2011/02/hopefully-asahi-kosei-m-sdn-bhd-wont.html

URGENT:- Stop ASAHI KOSEI (M) SDN. BHD from sending Thiha Soe (PP No: A 458011) back to Burma
http://charleshector.blogspot.com/2011/02/urgent-stop-asahi-kosei-m-sdn-bhd-from.html

On 14 February 2011, Mr Charles Hector Fernandez received a letter from the lawyer of the Asahi Kosei (M) Sdn. Bhd. Company (full text of the letter). The letter claims that the postings about the plight of the Burmese migrant workers from Mr. Charles Hector’s Blog amount to a libel on the company. The company demands from Mr. Charles Hector Fernandez within 7 days the sum of RM 10,000,000.00 (USD 3,279,307) an apology and an immediate withdrawal of the posts.

In the said complaint and demand letter, written by the company's legal representative, T.S. Teoh & Partners, the Company denied all the allegations. They claimed the workers, whom Mr. Fernandez had referred to, were supplied by an outsourcing agent and are not under the direct payroll of the company. This argument of passing the responsibility on the employment agencies is commonly used by Corporations having operations in underdeveloped countries, like in the Philippines and Thailand, to excuse themselves from legal responsibilities.

The information posted on the Blog was obtained from the affected workers. They are representing the complaints made by the migrant workers who are always in the vulnerable position to voice out their grievances and demands. Human rights defenders such as Mr. Charles Hector Fernandez are playing an important role to channel the complaints of the disadvantaged to the public and to express concern. It is a matter of public interest to ensure the grievances of any persons whose human rights being violated to be heard. Without it, there is no access to justice.

The company had been given the opportunity to respond. Mr. Charles Hector Fernandez sent two emails on 8 and 9 February 2011 to the Asahi Kosei (M) Sdn. Bhd. Company about the matter. However, the company did not respond to these emails. Instead, the Asahi Kosei (M) Sdn. Bhd. Company sent a letter to Mr. Charles Hector Fernandez demanding RM 10,000,000 for damages.

The threats of commencing legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez poses a threat to human rights defenders who are actively raising these issues to defend the rights of migrant workers.

SUGGESTED ACTION:
Please write to the companies and the authorities listed below to express your concern in this case and call for the withdrawal of commencing legal action for libel and demand for damages against Mr. Charles Hector Fernandez.

To suppor this appeal, please click here:

SAMPLE LETTER:

Dear______________,

MALAYSIA: A human rights lawyer and public interest advocate faces threats of legal action for blogging about a company allegedly violating rights of migrant workers

Name of the advocate & blogger
: Mr. Charles Hector Fernandez, he is a lawyer and former member of the Malaysian Bar Council. His blog address is: charleshector.blogspot.com
Name of company threatening to take legal action: Asahi Kosei (M) Sdn. Bhd. Company, a Japanese company manufacturing components for video equipment, hard disk drive and automotive parts.
About the complaint: The Company claimed that his blog posts on February 8 & 9, 2011 are libelous. The Company's legal representative, T.S. Teoh & Partners, wrote a letter to Charles Hector dated February 11, 2011 (but was served on February 14) demanding from him RM10,000,000 (USD3,279,307) as payment "to vindicate our clients" within seven days from the receipt of the letter.

I am writing to express my deep concern regarding the case of Mr. Charles Hector Fernandez. I am informed that Mr. Charles Hector Fernandez has received a letter on 14 February 2011 sent by the Asahi Kosei (M) Sdn. Bhd. Company through its lawyer. The letter claims that the posts about the plight of a group of Burmese migrant workers from the Blog of Mr. Charles Hector Fernandez amounts to a libel on the company. The company demands from Mr. Charles Hector Fernandez within 7 days the sum of RM10,000,000, an apology and an immediate withdrawal of the postings.

Mr. Charles Hector Fernandez is a lawyer and a former member of the Malaysian Bar Council. He is also an active human rights defender and a Blogger, running the Blog: charleshector.blogspot.com. Recently in his Blog, he has been raising the issue of human rights violations against a group of Burmese migrant workers in relation to the Asahi Kosei (M) Sdn. Bhd. Company, a subsidiary of the Asahi Kosei Japan Company Limited. The issue concerns the complaints of 31 Burmese migrant workers about the non-compliance of agreement by their employer. The workers alleged that the employer was paying them far less than what was promised. In the process of seeking compensation and fair treatment, the workers alleged that they were threatened by gangsters and two of them escaped from being sent back to Burma. They have lodged formal complaints with the Malaysian Human Rights Commission (SUHAKAM) and the Labour Department.

The situation of this group of Burmese migrant workers was reported in the Blog of Mr. Charles Hector Fernandez. The information posted on the Blog was obtained from the affected workers. They are representing the complaints made by the migrant workers who are always in a vulnerable position when it comes to voicing out their grievances and demands. Human rights defenders such as Mr. Charles Hector Fernandez are playing an important role to channel the complaints of the disadvantaged to the public and to express concern. It is a matter of public interest to ensure the grievances of any persons whose human rights being violated to be heard. Without it, there is no access to justice.

The company had been given the opportunity to respond. Mr. Charles Hector Fernandez sent two emails on 8 and 9 February 2011 to the Asahi Kosei (M) Sdn. Bhd. Company about the matter to which the company did not respond. Instead, the Asahi Kosei (M) Sdn. Bhd. Company sent a letter to Mr. Charles Hector Fernandez demanding RM 10,000,000 for damages.

The commencement of legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez poses a threat to human rights defenders who are actively raising these issues to defend the rights of migrant workers.

I therefore call for the withdrawal of commencing legal action for libel and demand for damages by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Charles Hector Fernandez.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

TO THE COMPANY:

Office in Malaysia

1. Asahi Kosei (M) SDN. BHD.
Lot 3377, Jalan Perusahaan Utama,
Taman Industri Selesa Jaya,
43300 Balakong, Selangor Darul Ehsan
MALAYSIA
Tel: +60 3 89614360
Fax: +60 3 89614354
Email: asahi@po.jaring.my
Website: http://www.asahikosei.com/index.htm

Office in Japan

2. Asahi Kosei Japan Co. Ltd.
17-35, 2-chome, Kashida-nishi,
Higashi-Osaka, Osaka
JAPAN
Tel: +06 6720 6006
Fax: +06 6727 0024
Email: akj@mb2.cyberoz.net

TO THE GOVERNMENT:

1. The Human Rights Commission of Malaysia (SUHAKAM)
11th Floor, Menara TH Perdana,
Jalan Sultan Ismail, 50250 Kuala Lumpur
MALAYSIA
Tel: +60 3 2612 5600
Fax: +60 3 2612 5620
E-mail: humanrights@suhakam.org.my

2. Dato' Sri Mohd Najib Bin Tun Abdul Razak
Prime Minister of Malaysia
Prime Minister's Office,
Main Block, Perdana Putra Building,
Federal Government Administrative Centre,
62502 Putrajaya
MALAYSIA
Tel: +60 3 8888 8000
Fax: +60 3 8888 3444


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)




Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-033-2011
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.