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MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights

April 4, 2011

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

 

Urgent Appeal update: AHRC-UAU-019-2011

 

 

 4 April 2011

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MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights

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) regrets to inform you that the Asahi Kosei (M) Sdn. Bhd. Company, a firm whom we earlier reported to have threatened to commence legal action against a human rights lawyer, Mr. Charles Hector Fernandez, for blogging about alleged violations of the migrant workers rights the company has committed, has proceeded in prosecuting him for libel.

UPDATED INFORMATION:

 

As mentioned in our previous appeal (AHRC-UAC-033-2011

), on February 14, 2011 the Asahi Kosei (M) Sdn. Bhd. Company, demanded from Mr. Fernandez the payment of RM 10,000,000.00 (USD 3,279,307), an apology and an immediate withdrawal of the posts in his blog that they claimed libelous to the Company. The company in Malaysia manufactures components for video equipment, hard disk drives and automotive parts.

However, even before Mr. Fernandez could respond to the Company's demand, on February 21 he received an ex-parte injunction order and copies of court papers. The ex-parte order requires him to immediately remove all the posts he had in his blog about the case of the Burmese migrant workers and for him to stop any forms of communications by himself or his servants or agents about the issue.

The copies of court papers showed that the Asahi Kosei (M) Sdn. Bhd. Company had filed the legal action against Mr. Charles Hector Fernandez in court and applied for an ex-parte interlocutory injunction on 14 February 2011, the same day that Mr. Fernandez also received the copy of the Company's demand letter dated February 11.

As revealed by the timing of the dates the company sent Mr. Fernandez the demand letter and the legal action that they have pursued in court, by way of "ex-parte injunction", it was done deliberately to prevent him making a defense for himself or having the opportunity to be heard. The legal action was taken before he could respond to their first demand.

The nature of an "ex-parte" injunction is supposedly to protect the interest of the petitioner, in this case the Company; thus, this type of proceeding is done without the presence of the other party, in this case Mr. Fernandez. It explains why he was not able to receive any notice about the legal action, particularly the removal of the posts he had in his blog that is subject of the company's complaint, already taken against him in court.

The legal action against Mr. Fernandez and the issue that he had raised in his blog were a matter of public interest; thus, he should have been given the opportunity to make his defense and heard; however, in this case, he was not. You can also read our Open Letter on this case: AHRC-OLT-002-2011 .

Nevertheless, on 4 March 2011, in the conclusion of the inter-parte (with the presence of all parties) hearing regarding the "ex-parte injunction" order on Mr. Fernandez, the court has ordered to reduced the nature of the order from the original ex-parte order, now confined to just the issue of the 31 Burmese migrant workers, and the company.

However, the order to restrain Mr. Fernandez from communicating in his blog and by tweeter about the matter remains in effect. On 21 March 2011, the court continued hearing the inter-parte hearing on the ex-parte injunction order and the application of Mr. Charles Hector Fernandez to set aside this order. In the hearing, the court fixed the trial date on April 19, 20 and 21, 2011.

Meanwhile, on 12 March 2011, during the 65th Annual General Meeting, the Malaysian Bar unanimously approved a motion in support of Mr. Fernandez (read the full text).

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."

 

SUGGESTED ACTION :

Please write to the companies and authorities listed below to express your concern over this case and call for the immediate and unconditional withdrawal of legal action for libel and the demand for damages against Mr. Charles Hector Fernandez.

 

To support this appeal, please click here:

 

 SAMPLE LETTER:

 

Dear______________,

 MALAYSIA: Human rights lawyer sued for libel for blogging alleged violations of migrant workers rights

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 the Company

: Asahi Kosei (M) Sdn. Bhd. Company, a Japanese company manufacturing components for video equipment, hard disk drive and automotive parts.

The complaint of libel

: The Company claimed that his blog posts on February 8 & 9, 2011 are libelous. The Company filed a legal action in court for libel against Charles Hector on 14 February 2011, demanding from him RM10 million (USD3,279,307) for damages.

Details of the case in court : Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez (Case No: 22 NCVC – 173 – 2011) came before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex. Mr. Fernandez is represented by lawyers Francis Pereira and R, Shanmugam (with Taneswaran, pupil in Chambers); Asahi Kosei Sdn Bhd was represented by lawyer Tan Tai Hwa Bar Council Malaysia (Holding a Watching Brief), was represented by Daniel Lo.

 

I am writing to express my deep concern that the Asahi Kosei (M) Sdn. Bhd. Company has pursued in taking legal action in court against Mr. Charles Hector Fernandez.

I am aware that on 14 February 2011, the Company has sent demand letters to Mr. Fernandez for the payment of RM10 million (USD3 million) for damages, an apology for him and an immediate withdrawal of the postings they claimed libelous. However, I have since learned that even before Mr. Fernandez could respond to the Company's demand, legal action has actually been taken against him without his knowledge on the same day.

The legal action, by way of an ex-parte injunction, has already been filed; and, in fact, the court have subsequently issued an order on February 21, 2011, requiring him to immediately remove all the postings he had in his blog about the case of the Burmese migrant workers on which the Company has earlier claimed libelous. The order also required him to stop any forms of communications by himself or his servants or agents about the issue.

Although the court's injunction order on the "ex-parte" petition was subsequently reduced, by downgrading the order from the original ex-parte order to just the issue of the 31 Burmese migrant workers and the Company following the conclusion of the 4 March 2011; however, I am deeply concerned by the continued prosecution of Mr. Fernandez.

The issue concerns the complaints of 31 Burmese migrant workers upon violations of their human rights. 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.

The legal action for libel by the Asahi Kosei (M) Sdn. Bhd. Company against Mr. Fernandez threatens human rights defenders who are actively raising the concern for human rights violations on migrant workers. The libel lawsuit 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.

According to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, "everyone has the right to individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international level."

I therefore call for the immediate and unconditional withdrawal of 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. Mr. Takeshi Nishitsuji

President

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 Update
Document ID :
AHRC-UAU-019-2011
Countries :
Issues :
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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.