Sunday, February 19, 2017

INFINEON must stop discrimination against Union leaders and Reinstate Union President?



Joint  Statement – 31/1/2017

INFINEON MUST STOP UNION BUSTING AND DISCRIMINATION AGAINST UNION LEADERS

Reinstate Zulfadlee Thye Abdullah, President of Infineon Technologies Melaka Workers Union

We, the 55 undersigned organisations and trade union are shocked to hear about the wrongful termination of Muhammad Zulfadlee Thye Bin Abdullah, the President of the Infineon Technologies Malaysia Workers Union (Kesatuan Pekerja Pekerja Infineon Technologies (M) Sdn Bhd) at INFINEON in Malacca, which is said to be the largest assembly of INFINEON with a workforce of about 8000 people.  Zulfadlee, an employee since 1998, has been the President of the Union  since 2005.

INFINEON is a German Company that produces, amongst others, electronic and auto components, which are said to be used by major Brands including Apple, BOSCH, Philips, Microsoft, Hewlette Packard, Dell and Continental.

On 13/12/2016, Zulfadlee was terminated on the grounds that he ‘committed the act of malingering’, with reference to a sick leave obtained on 18/10/2016 from a doctor, Dr Aw Cheng Yew  of  Klinik Melaka, which is a panel clinic of the Employer. The basis of the allegation seems to be because he was present at an activity of the Selangor Division of the Malaysian Trade Union Congress(MTUC)  in Putrajaya on the same date when he was on sick leave.  As such, one may assume that maybe the charge was simply pretending to be sick (or faking illness) for the purpose of avoiding work or duty. 

It must be stated that the reason for termination used was not an employment misconduct stated in INFINEON Technologies (Malaysia) Sdn. Bhd’s document entitled Policy for Misconduct and Disciplinary. 

Further, the word ‘malingering’ is not a commonly used word, and as such many are unaware of the meaning of that word. To compound matters, in this case, the word ‘malingering’ allegedly was never even clearly explained to Zulfadlee, whose mother tongue is the Malay language. When such English words are used in a charges levied against a worker, and then not explained clearly, it will have a tendency to be confusing and may result in injustice. 

In law, Zulfadlee was entitled to 22 days of paid sick leave every year, and it must be pointed out that he was examined by a qualified doctor who concluded that he was entitled to   sick leave, and a medical certificate was signed and issued by the said doctor. A sick leave is given only when the doctor, after examining decides a worker is not medically fit to perform his/her duties at work. 

There was no question of Zulfadlee lying or pretending to be sick, for on the subsequent day he went to see a specialist doctor, who allegedly discovered that he had a stone in his bladder and he was then given further sick leave for 3 days on 19/10/2016, 20/10/2016 and 21/10/2016. Despite being on sick leave, Zulfadlee did come to the office for a few hours to do some urgent work on 2 of these days but he was not charged for committing the ‘act of malingering’ for these days.

Being on a sick leave does not  mean that one is to be confined at home and bed rest, and cannot do any other things including also attending some union meeting or activity – a sick leave only means that he is not medically fit for work on the said day, and in law he becomes entitled to paid sick leave. 

On 18/10/2016, Zulfadlee said that he had no plans whatsoever to go to the Putrajaya union activity with his union members who planned to go. It was only after he had obtained medical leave whilst he was sending off the union members heading to Putrajaya, that he was convinced by his fellow union members and suddenly decided to follow them in the bus.

Now, even if an Employer disputes the Medical Certificate issued by the doctor, then the Employer should reasonably have taken action against the doctor and/or the clinic – not with the employee.  It must be pointed out that generally a panel clinic of the employer, are less likely to simply issue Medical Certificates to employees unless the doctor is convinced that the said worker is entitled to sick leave. In this case, the Employer really had no reasonable basis to even suggest that Zulfadlee was ‘malingering’ or lied to obtain the sick leave. In such health matters, the Employer is certainly not competent – only the qualified doctor is.

We do not believe that any failings of a doctor, if there even is, should ever be blamed on a worker, and certainly not be used as justification for termination.

Further, attending or participating in a union activity cannot and should never be an employment misconduct and/or a breach of the employment contract.

ANTI-UNION ACTION & DISCRIMINATORY ACTION AGAINST UNION PRESIDENT

As such, we are of the opinion that the termination of the Union President may really not  be because of an ‘act of malingering’ by an employee, but simply a union busting action targeting the Union President and the Union.

In INFINEON’s letter dated 6/1/2017, rejecting Zulfadlee’s  appeal against the termination it was stated, amongst others, ‘…The basis of our decision was premised on the fact that the Management could not condone nor mitigate punishments for a serious act of misconduct committed by a Union President leading the employees of Kesatuan Pekerja - Pekerja lnfineon Technologies Malaysia itwu,’ This letter was signed by Lee Cheong Chee, the President & Managing Director of lnfineon Technologies Melaka.

The said letter, also did state, ‘…your illustrious career and contributions to the Company has been well acknowledged through your progress during your tenure. While that may ordinarily be a mitigating factor in considering any appeal, the Management has decided that the your act of malingering is deemed to be unacceptable and is aggravated in view of you being the Union President at the point the act of misconduct was committed…’

Besides Zulfadlee, 6 other members of the Executive Committee of the Union, including the Vice President and the Secretary, were also targeted and subjected to disciplinary action – and some of this had ended with a stern warning, whilst only the Union President was terminated.

Considering the fact that out of the 40 over employees that participated in the Union program on 18/10/2016, and only the President and 6 of the Union leaders have been subjected to disciplinary action, it certainly looks that  INFINEON  maybe discriminating against employees who are leaders of the Union, and maybe reasonably said to be an act of ‘union busting’.

The timing of these disciplinary actions and the termination of the Union President, when the Union and INFINEON is starting negotiations concerning the next Collective Bargaining Agreement, whereby the first meeting is scheduled for 23/1/2017 is most disturbing. Members of the Union will most likely be prejudiced by this.

It looks like the Employer’s actions in this case was maybe to instill fear in the Union, its members and other employees, which may affect the effectiveness of the trade union. These actions of the Employer would impact on the duty and obligation of Unions to fight for better rights and working conditions, highlight future wrongdoings, and fight against violation of the worker rights. It is failure to recognize and respect  the freedom of association.

The failure of this Union and/or its members to openly protest the wrongful dismissal of the Union President indicates that the Employer’s strategy to create a docile and compliant union maybe working. It may also seriously affect the upcoming Collective Bargaining Agreement to the  detriment of employees and Union members.

OBLIGATION TO UPHOLD WORKER AND UNION RIGHTS, AND FREEDOM OF ASSOCIATION

INFINEON Technologies (Malaysia) Sdn. Bhd.,a subsidiary of INFINEON, a German company, in this case seem to have acted contrary to the INFINEON’s own policy and Code of Conduct, Organisation for Economic Co-operation and Development (OECD) Guidelines, Electronic Industry Citizenship Coalition Code of Conduct, UN standards and principles; and other relevant standards and good practices.

Brands and corporations that do have INFINEON in their supply chain also have the obligation to ensure that justice be done, and that Codes of Conducts or Policies not be violated by reason of these action/s of INFINEON, vide it’s Malaysian subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, including the discrimination and the wrongful termination of the Union leader.

Justice demands that INFINEON Technologies (Malaysia) Sdn. Bhd should immediately reinstate Zulfadlee without electing to simply just wait for the long drawn out court process in Malaysia, that could take even 5 - 9 years before court may award victory to a wrongfully terminated worker. As such, unless INFINEON immediately reinstates Zulfadlee, an employee of INFINEON for 18 years,  great injustice would be done to this worker who has wrongfully been deprived of his employment and income that is so needed for him and his family to survive.

Unjust Malaysian laws at present, states that if the worker cannot be reinstated, he will be awarded compensation in lieu of reinstatement for just a maximum of 24 months, when previously this compensation would have been payment of all income worker would have earned from date of wrong dismissal until the date of judgment(or reinstatement). The new amended limit is not anymore a deterrent for employers seeking to wrongfully get rid of employees, especially worker leaders.

Further, in the case of a Union leader, the chances of getting employment with any other employer, especially in the same sector, is also most difficult compared to other workers. Termination of strong Union leaders is grossly unjust to the Union and its members. Without immediate reinstatement, great injustice will be done.

Therefore, we

Call for the immediate reinstatement of Zulfadlee Thye Bin Abdullah, the President INFINEON Technologies Workers Union;

Call for the immediate withdrawal of disciplinary action/s against other Union leaders and/or members, and/or for the revocation of any punishment that has already been handed out;

Call on INFINEON and its subsidiary, INFINEON Technologies (Malaysia) Sdn. Bhd, to respect and promote worker and trade union rights, and cease discrimination against Union leaders, and also cease union busting activities.

Call on Apple, BOSCH, Philips and other companies that has INFINEON in its supply chain to immediately  ensure that INFINEON respect the Freedom of Association of Workers, Worker and Trade Union Rights;

Call on Germany to ensure that INFINEON comply with the OECD Guidelines, United Nations and  International Labour Organisation (ILO) standards, principles and best practices, and other similar obligations to ensure that human rights and worker rights are respected, protected and promoted;

Call on INFINEON and INFINEON Technologies Melaka to respect and promote human rights, including worker and trade union rights

Charles Hector
Syed Shahir bin Syed Mohamud
Mohd Roszeli bin Majid
Pranom Somwong

For and on behalf of the 55 organisations, trade unions and groups listed below

ALIRAN
Asociación de Trabajadoras del Hogar a Domicilio y de Maquila–ATRAHDOM,Guatemala C.A.
Association of Human Rights Defenders and Promoters- HRDP
Building and Wood Worker's International (BWI) Asia Pacific
CEREAL Centro De Reflexión Y Acción Laboral (CEREAL), México
Center for Alliance of Labor and Human Rights (CENTRAL) -  Cambodia
Christian Development Alternative (CDA), Bangladesh
Clean Clothes Campaign International Office(CCC)
Club Employees Union Peninsular Malaysia
CWI (Committe For Workers International) Malaysia
Electrical Industry Workers' Union(EIWU)
Electronics Industry Employees Union Southern Region Peninsular Malaysia(EIEUSR)
Electronic Industry Employees Union Northern Region Peninsular Malaysia
GoodElectronics Thailand
IndustriALL Global Union
Institute for Development of Alternative Living (IDEAL)
Kesatuan Eksekutif AIROD
Kesatuan Pekerja-Pekerja Mitsui Copper Foil(MCFEU)
Kesatuan Pekerja-pekerja Perodua EngineManufacturing Sdn. Bhd
Kesatuan Pekerja-Pekerja Perusahaan Otomobil Nasional Sdn Bhd (KPP Proton)
MADPET [Malaysians Against Death Penalty and Torture]
Malaysian Trade Union Congress(MTUC)
Movimentu Kamponezes Timor Leste-Mokatil
National Union of Bank Employees (NUBE)
National Union Employees in Companies Manufacturing Rubber Products (NUECMRP)
National Union of Flight Attendants Malaysia (NUFAM)
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW)
North South Initiative (NSI)
Paper Products Manufacturing Employees’ Union of Malaysia (PPMEU)
Parti Rakyat Malaysia(PRM)
Pertubuhan Angkatan Bahaman, Temerloh, Pahang, Malaysia
Persatuan Komuniti Prihation Selangor & KL
Persatuan Sahabat Wanita Selangor(PSWS)
PINAY (The Filipino Women's Organization in Quebec), Canada
Progressive Voice, Myanmar
PROHAM -Persatuan Promosi Hak Asasi Manusia
Sawit Watch, Indonesia
Solidarity of Cavite Workers (SCW), Philippines
SUARAM (Suara Rakyat Malaysia)
Tenaga Nasional Junior Officers Union (TNBJOU)
WH4C(Workers Hub For Change)
Workers Assistance Center, Inc., Philippines
Yayasan LINTAS NUSA, Batam-Indonesia

Global Women's Strike UK
Legal Action for Women UK
Women of Colour GWS
MTUC Selangor & Wilayah Persekutuan
Pusat Komas
SHARPS, South Korea
GoodElectronics International Network
CIVIDEP, India
Students & Scholars Against Corporate Misbehaviour (SACOM), Hong Kong
Parti Sosialis Malaysia (PSM)
Jaringan Rakyat Tertindas (JERIT)
Community Development Centre (CDC)

Saturday, December 31, 2016

Samsung and Panasonic accused over supply chain labour abuses in Malaysia (Guardian)


* There is always the option to directly employ workers, so the using of workers supplied by labour suppliers('contractors for labour') is just a means to avoid employer obligations...When worker abuses is highlighted - so easy to simply turn around and say...' we did do it, it was the 'suppliers'..? The use of these workers supplied by labour suppliers is a PRECARIOUS EMPLOYMENT PRACTICE. It also results in DISCRIMINATION at the workplace - workers doing the same work end up with different wages and rights. It also weakens Trade Unions and can be said a 'union busting' practice. These 'supplied workers' working under the supervision of the workplace owners are not considered 'employees' of the workplace - rather employees of the 'labour suppliers', as such would not be able to enjoy even the benefits of Collective Bargaining Agreements which will only benefit employees of the workplace...

Samsung and Panasonic accused over supply chain labour abuses in Malaysia

Migrant workers making goods for the global electronics brands claim they are trapped and exploited in Malaysia

Samsung and Panasonic, two of the world’s leading electronics brands, are facing allegations that workers in their supply chains are being duped, exploited and underpaid in Malaysia.

The two companies have launched investigations into allegations of abuse made by Nepalese workers after a Guardian investigation raised multiple concerns about their treatment.

The men said they had been deceived about pay, had their passports confiscated and had been told that they must pay large fines if they wanted to return to Nepal before the end of their contract. They also claimed they were forced to work for up to 14 hours on their feet without adequate rest, and with restricted toilet breaks, in an attempt to settle recruitment fees of up to £1,000 – they said they had to pay this money to secure their jobs.





They said they felt “cheated” and trapped in their factory jobs making or assembling components for household electrical goods sold on the global market. 


“My heart is aching,” said one young man who works in a factory making Samsung microwaves. “I was not given the job I was promised. I am doing very difficult work. I haven’t got the salary they said I would get.”

The Guardian spoke to 30 Nepalese migrants making products for Samsung and Panasonic. Some of those working for Samsung are employed directly by the company, but the majority are hired through a labour supply company. The workers assembling or making parts for Panasonic are employed by subcontracting companies.

Both Panasonic and Samsung forbid their suppliers from confiscating passports or charging migrant workers recruitment fees. Yet all the men interviewed by the Guardian claimed they paid up to £1,000 to recruitment agents in Nepal to secure their jobs in Malaysia. They all also claimed that their passports were confiscated on arrival in the country, illegal under Malaysian employment law.

Workers said this restricts their freedom of movement and leaves them open to detention by the authorities.

Without their passports, the workers said they couldn’t freely leave their jobs and return home without paying fines equivalent to three or four months’ basic salary.

Both Samsung and Panasonic have said they are opening investigations into the conduct of their suppliers following the claims.

The use of labour supply companies and subcontractors is common practice for foreign firms making goods for export in Malaysia but is a system ripe for abuse, according to labour rights groups in the country.

Workers making Samsung products said they were threatened by supervisors at their labour supply company when they said they were unhappy with their work and wanted to return home. “They told us, ‘If you don’t work, or leave without paying, we’ll bury you in Malaysia,’” said one man.

Workers for the labour supply company used by Samsung also claimed they were deceived about the nature and conditions of their work. They said they had been forced to pay illegal fees by recruitment agents used by their labour supply company hours before they departed for their new jobs. Some said the salary they were promised in Nepal was higher than the pay they were now receiving in Malaysia.

“I wouldn’t have come here if I had known the real conditions and salary. I was manipulated,” said one man.

“[The labour supply company in Nepal] are using the name of Samsung to cheat people,” said another worker. “We have been cheated, but we don’t want others to be cheated.”

Other Nepalese workers said they paid between 90,000-115,000 rupees (£685-£875) to a labour recruitment agency in Kathmandu used by Samsung, despite a 2015 cap on recruitment fees set at 10,000 rupees (£75) by the Nepalese government in 2015.

“I paid 115,000 rupees, but the agent only gave me a receipt for 10,000 rupees. He told me that if I was stopped at the airport I should say that that is all I paid,” said one man working at Samsung’s microwave plant. “I knew the agent was cheating me, but what could I do?”

A spokesperson from Samsung said: “As a committed member of the Electronics Industry Citizenship Coalition (EICC), we comply fully with the EICC’s Code of Conduct and have found no evidence of violations in the hiring process of migrant workers hired directly by our manufacturing facility in Malaysia.

Once there is any complaint, we take swift actions to investigate.

“We are currently conducting on-site investigations of labour supply companies we work with in Malaysia and the migrant employees hired by these companies. If any violations are uncovered, we will make immediate corrective actions and moving forward we will suspend our business with companies that are found to be in violation.”




In a factory in the capital, exhausted workers making parts for Panasonic spoke of having to work week after week of 14-hour shifts to try to repay the money they gave to recruitment agents in Nepal. Some said they were still far off paying their debts 15 months after arriving in Malaysia. Others claimed they had been told by their companies they must pay the equivalent of three months’ wages if they left before the end of their contract.

“If I could find a way to go back, I’d leave right now but I am trapped by my debts,” said one Nepalese worker, who makes parts for Panasonic. “95% of workers here would do the same.”

Workers assembling Panasonic products in the southern city of Johor Bahru said that they sometimes only received 700 ringgit (£133) a month – half of what they were promised – after production slowed due to a lack of orders.

“We know our earnings are below minimum wage, but what can we do about it?” said one of the workers.

“We feel terrible because we have a big loan to pay back. You have to work for three years just to pay it off.”

Life beyond the assembly line is difficult too. In accommodation visited by the Guardian, workers were living in a grim hostel in an industrial area in Johor with 14 men crammed into one mouldy room. They all shared one broken toilet and two shower cubicles, which opened directly on to a cooking area with a single gas cooker.

In an emailed statement, Panasonic said, “Panasonic will conduct a full investigation into the claims made by the Guardian. We are taking these allegations very seriously and if, in fact, we discover that one of our suppliers has violated such laws or regulations, we will ensure and require them to take necessary corrective action immediately.

“We expect all of our suppliers to strictly comply with our CSR [Corporate Social Responsibility] policy and declaration. These expectations are outlined in Panasonic’s contracted terms and conditions with each supplier. We do not tolerate breaches of these terms.”

The workers interviewed by the Guardian also complained about conditions inside the factories.

“The work is extremely difficult,” said one worker at a Samsung electronics plant making microwave ovens.

“You get only 45 minutes in a 12-hour shift to eat, and seven minutes every two hours to drink water.”

Other workers making parts and assembling products for Panasonic said that they stood all day without decent breaks. One worker claimed they were only allowed to stop work to go to the toilet twice in a 12-hour shift.

The electronics sector in Malaysia, which accounts for nearly 35% of the country’s export economy, has faced international scrutiny for its treatment of migrant workers. In 2014 a report by supply chain watchdog Verité found that nearly one third of workers in Malaysia’s electronics sector are in forced labour, and called for wide reforms of the policies of foreign companies operating there.

“Brands working in Malaysia have to recognise that the standard operating procedure for labour contractors is debt bondage and this has ramifications,” said Phil Robertson, deputy director of Human Rights Watch in Asia.

“Taking someone from Nepal and putting them in a factory in Malaysia costs money, and if these costs are not being factored into the price of a phone, or a microwave or a speaker, then they are complicit in a system that expects the workers to suffer as a result.” - The Guardian, 21/11/2016

Related:-

FORCED LABOR IN THE PRODUCTION OF ELECTRONIC GOODS IN MALAYSIAA Comprehensive Study of Scope and Characteristics

Immediately Release Siti Noor Aishah Atam from Restrictions Under Prevention Of Crime Act 1959 (POCA)


Media Statement – 20/12/2016
Immediately Release Siti Noor Aishah Atam from Restrictions Under Prevention Of Crime Act 1959 (POCA)
Abolish POCA and All Detention Without Trial Laws and  the Security Offences (Special Measures) Act 2012
We, the 37 undersigned civil society organisations, trade unions  and groups, are appalled to hear about the case of  Siti Noor Aishah Atam, 29 year old Malaysian woman, who was arrested for the alleged possession of 12 books, detained, tried and acquitted by court, and thereafter re-arrested and detained under Prevention Of Crime Act 1959 (POCA). We are shocked that Siti Noor Aishah, despite being acquitted and released by Court, which also denied the prosecution’s application to continue to detain her under the Security Offences (Special Measures) Act 2012(SOSMA) pending appeal, was re-arrested and detained, and have now been imposed with Restriction Orders, which included being fitted with an electronic monitoring device (EMD). 
The case, one of the very few cases of victims  POCA which had gone to trial, for most victims of POCA and other detention without trial laws never get the opportunity to get a trial. There are now more than a thousand victims of POCA, POTA and other detention without trial laws, who have been or are now still detained without trial and/or subjected to Restriction Orders, without any opportunity to even challenge the alleged reasons for their Detention or Restrictions, a gross injustice is being done to them, as many of whom like Siti Noor Aishah Atam would more than likely be innocent. These victims have certainly never been proven guilty. As at Sept 30, 2015, 975 people have been detained under Poca(Malaysiakini, 29/11/2016)
Without the right to judicial review, including habeas corpus application, the risk and possibility that the innocent are all being now denied their liberty and rights is totally unacceptable. It is a denial of the fundamental human rights, including the right to a fair and public hearing by an independent and impartial tribunal’ (Article 10, Universal Declaration of Human Rights). Article 11(1) of the UDHR also states that ‘Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
CASE OF SITI NOOR AISHAH BINTI ATAM
Siti Noor Aishah, who was arrested on 22/3/2016, have been a victim of SOSMA, and now continues to be a victim of POCA.
On March 22, 2016, Siti Noor Aishah , a University of Malaya Masters of Usuluddin (Islamic Studies) student, was arrested for allegedly having in her possession, books on Jemaah Islamiyah (JI), Islamic State (IS) and Al Qaeda (AQ) at her residence at Lot 1241, Jalan Lapangan Terbang Sura, Dungun, Terengganu at 12.25pm, an offence the Penal Code.
On April 19,2016,  she was charged in the Magistrate Court in Kemaman, Trengganu under Section 130JB(1)(a) of the Penal Code which states that ‘whoever-  (a) has possession, custody or control of; or  (b) provides, displays, distributes or sells, any item associated with any terrorist group or the commission of a terrorist act shall be punished with imprisonment for a term not exceeding seven years, or with fine, and shall also be liable to forfeiture of any such item.’ The case was then transferred to the High Court in Kuala Lumpur.
On July 25,2016, she pleaded not guilty and claimed trial at the High Court.
On 29/9/2016, Judicial Commissioner Datuk Mohamad Shariff Abu Samah, at the close of prosecution’s case, the judge acquitted and released her, without requiring Siti Noor Aishah to enter her defence as the court found that the prosecution had failed to prove a prima facie case against the accussed [‘… pihak  pendakwaan  telah  gagal  untuk  membuktikan suatu  kes  Prima  facie  terhadap  OKT…’ (extract from the Court Judgment)]
The Judge, amongst others, in his judgment said, ‘…Apalah ertinya     pemilikan     buku-buku tersebut yang   dikatakan mempunyai  kaitan  dan  unsur-unsur  pengganas  menjadi  suatu kesalahan  keatas  sesiapa  yang  memiliki  buku-buku  tersebut, walhal   pihak   Kementerian   Dalam   Negeri   gagal   menjalankan fungsi    sebenarnya    untuk    mengharamkan    dan    seterusnya menghapuskan buku-buku…’ (What is the meaning when possession of the said books said to have links and elements of terrorism is an offence against those found in possession of such books, when the Ministry of Home Affairs fails to even ban and thereafter destroy such books.)
It was also reported that the Court, after acquitting Siti Noor Aishah, also rejected the application of Deputy Public Prosecutor to continue to detain Siti Nor Aishah in prison pursuant to section 30(1) Security Offences (Special Measures) Act 2012 (SOSMA) whilst waiting for the appeal to be filed by the prosecution against the decision to acquit. (Bernama – Sinar Harian, 29/9/2016)
It was recently reported in the media (Malaysiakini, 29/11/2016), that Siti Nor Aishah was thereafter arrested and detained under the Prevention of Crime Act 1959(POCA) until Saturday(26/11/2016), and has now been fitted with an electronic monitoring device (EMD), and asked to report every Friday at the police station in Bukit Aman for 8 weeks. She is also most likely subjected to a Restriction Orders(or Police Supervision Orders) under POTA – which could include inhibitions with regard to movement, restrictions as to the people she can communicate with, and even restrictions with regard access to the internet and social media.
Security Offences (Special Measures) Act 2012(SOSMA)
This law provides for the uses of ‘special measures’ in security offences cases. After arrest, for the purpose of investigation, the police can normally hold a suspect for 24 hours, and if more time is required, the police need apply to a Magistrate for further remand in a hearing where the suspect can also be represented by a lawyer. The Magistrate will consider the reasons advanced and the submissions, and thereafter, if justified, may allow further remand for a specific number of days. If further remand is needed after that, the police will have to apply again to the Magistrate, and the maximum number of days of remand permitted is 14 days.
However, when the police resort to SOSMA, there is no more the need to apply to the Magistrate for further remand beyond 24 hours, and as such there is no more judicial intervention, which acts as a necessary check and balance to prevent abuse of detention powers by the police. SOSMA only requires the authority of a police officer of the rank of Superintendent or above, to be able to detain a suspect for up to 28 days. In Siti’s case, this provision of SOSMA was most likely used, as she was only brought to court to be charged on 19/4/2016, which is certainly more usual 14 days. SOSMA was also used recently in case of Human Rights Defender Maria Chin.
In the trial, it was also disclosed by the prosecutor in the Judgment, that SOSMA was also used for the purposes of investigation, and it was also used during the trial. SOSMA allows the use of evidence, which in normal trials would not be admissible by reason of  requirements in the Evidence Act and the Criminal Procedure Code. 
PREVENTION OF CRIME ACT 1959(POCA)
POCA is a Detention Without Trial law, like the former Internal Security Act(ISA), which allows for Administrative Detention and/or Restrictions to be imposed on a person. The Act also denies victims of POCA the ability to challenge the reasons and/or justification for the said Detentions/Restrictions/Police Supervision Orders in a court of law. The ousting of the Courts ability to review the reasons of the government for arresting, detaining and/or imposing restrictions only encourages abuse, and injustice against the innocent.
The use of POCA to detain, and now impose restrictions on rights and freedoms of Siti Nor Aishah, especially after the High Court had heard her case, and acquitted her is wrong.
Additionally, given the fact that the court denied the application by prosecution to continue to detain her until the appeal against her acquittal, we are of the opinion that the subsequent use of POCA to arrest and detain her may amount to contempt of court, and certainly a gross disrespect of the court.
The POCA amendments in 2014 and 2015 extended its usage was extended from just persons involved in triad gangs, to now also include persons allegedly involved in drug trafficking, trafficking of human persons, smuggling of migrants and even terrorism offences. It also covers crimes committed by 3 or more persons.
It must also be highlighted, that POCA clearly states that the detention under POCA ‘...shall be without prejudice to the taking of any criminal proceeding against that person, whether during or after the period of his detention...’ That means that a person detained on the basis of some allegation, can at a later date also find himself again being charged in court for a crime based on the same allegations.
POCA, the Prevention Of Terrorism Act 2015(POTA) and other laws that allows for detention/restrictions without trial  clearly violates human rights, and it must be abolished.
THEREFORE, WE
CALL for the immediate and unconditional release of Siti Noor Aishah Atam from any Detention or Restriction(Police Supervision) orders under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws;
CALL for the immediate and unconditional release of all persons currently being detained/restricted under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws;
CALL for the repeal of Prevention Of Crime Act 1959(POCA), Prevention Of Terrorism Act 2015(POTA)    any such Detention Without Trial laws;
CALL for the repeal of Security Offences (Special Measures) Act 2012(SOSMA)
Charles Hector
For and on behalf of the 37 undersigned civil society organisations, trade unions  and groups
ALIRAN
AJAR Timor-Leste
Association of Domestic Home and Maquila Workers. ATRAHDOM- Guatemala
Association of Human Rights Defenders and Promoters- HRDP, Myanmar
Banglar Manabadhikar Suraksha Mancha(MASUM), India
BERSIH
Center for Prisoners' Rights, Japan
Center for Alliance of Labor and Human Rights (CENTRA), Cambodia
Christian Development Alternative (CDA), Bangladesh 
Clean Clothes Campaign(CCC)
Community Development Centre (CDC)
Electronic Industry Employees Union (EIEU) Southern Region, Peninsular Malaysia
IDEAL (Institute for Development of Alternative Living)
Japan Innocence and Death Penalty Information Center
JERIT (Jaringan Rakyat Tertindas)
JKOASM (Jaringan Kampung Orang Asli Semenanjung)
Kesatuan Kebangsaan Anak Kapal Kabin Malaysia(NUFAM)/National Union of Flight Attendants Malaysia
MADPET(Malaysians Against Death Penalty and Torture)
Malaysian Physicians for Social Responsibility
National Union of Transport Equipment & Allied Industries Workers (NUTEAIW), Malaysia
North South Initiative
Odhikar, Bangladesh
OHMSI (Oriental Hearts and Mind Study Institute), Malaysia
Pemuda Persatuan Hokkien Selangor & KL
Persatuan Komuniti Prihatin Selangor & KL (PRIHATIN) 
Persatuan Sahabat Wanita Selangor
Philipping Alliance of Human Rights Advocates or PAHRA
Programme Against Custodial Torture & Impunity, India
PROHAM - Society for the Promotion of Human Rights, Malaysia
Pusat Komas
Saya Anak Bangsa Malaysia(SABM)
SUARAM(Suara Rakyat Malaysia)
Tenaganita
WH4C (Workers Hub For Change)
Women's Centre for Change, Penang (WCC)
Yayasan LINTAS NUSA Batam _ Indonesia
Kuala Lumpur and Selangor Chinese Assembly Hall's (KLSCAH) Civil Rights Committee

Tuesday, June 14, 2016

WH4C and others say STOP HARASSING THAI HR DEFENDERS PORNPEN, ANCHANA AND SOMCHAI



Joint Statement – 13/06/2016
Statement on the Reprisals against Human Rights Defenders, Ms. Pornpen Khongkachonkiet, Ms. Anchana Heemmina, and Mr. Somchai Homlaor

We, the undersigned civil society groups, are gravely concerned about the legal action taken by the Royal Thai Army for criminal defamation and Computer Crimes Act violations against Woman Human Rights Defenders (WHRD) Ms. Pornpen Khongkachonkiet, Ms. Anchana Heemmina, and HRD Mr. Somchai Homlaor.  Ms. Pornpen, is the Director of the Cross Cultural Foundation – an organization which monitors and documents cases of torture and ill-treatment in Thailand. Mr. Somchai, is the President of the Cross Cultural Foundation, and Ms. Anchana is director of Duay JaiGroup (Hearty Support Group) – a local organization based in Thailand’s ‘Deep South’, which supports people who suffer from the justice system in national security cases. 


All three are co-editors of a report, Torture and ill treatment in The Deep South Documented in 2014-2015[1] documenting 54 cases of inhumane treatment in detention, launched on 10th February 2016. The research and report was partly funded by the United Nations Voluntary Fund for Victims of Torture, established under the General Assembly resolution 36/151 in 1981, thus under the United Nations (UN) Human Rights Council Resolution 12/2 these HRDs and their colleagues are “individuals who cooperate with the United Nations, its representatives and mechanisms in the field of Human Rights.” 

Pornpen Khongkachonkiet


On 8th June 2016, Internal Security Operations Command Region 4 (ISOC 4) gave information to Ms. Pornpen through a phone conversation that ISOC 4 sought the power of attorney from the Royal Thai Army and submitted a complaint to Yala Mueang Police Station on 17th May 2016 for criminal defamation and computer-related violations by the three HRDs. The charges are for alleged criminal defamation under Article 328 of the Thai Criminal Code, and violation of the Computer Crimes Act (2007), Article 14(1)[2]. We are disturbed regarding information that authorities have already interrogated six witnesses. The Police case file is No. 704/2559. 
Anchana Heemmina
This judicial action has been taken despite the Human Rights Defenders’ best efforts to engage authorities on the evidence of torture and ill-treatment presented in the report. Namely, the report was sent to Army Lt Gen Wiwat Pathompak, Commander of the 4th Army Region, on 8th January 2016, one month before its publication. However, high-ranking military government officials have publicly dismissed the accuracy of the report and questioned the intentions of the civil society organisations who compiled the report. Furthermore, Ms. Anchana, WHRD working in Thailand’s ‘Deep South’, faced summons to an Army camp, lengthy questioning by Army officers, and close physical surveillance and intimidation by unidentified, uniformed men[3].
Somchai Homlaor
We deem this action by the Royal Thai Army to be a prompt reprisal against civil society groups seeking to bring to the authorities’ attention the continued abuse of power and ill-treatment of detainees in Thailand. The Royal Thai Army has taken these actions at a time when it the Thai military government has renewed the Thailand’s international commitments to abolishing the use of torture. On 11th May 2016, at the United Nation’s Universal Periodic Review (UPR) of Thailand 12 UN member states issued recommendations directly relating to the prevention of torture and access to justice for survivors of torture. 

Furthermore, on 24th May 2016 the Thai military government issued a Cabinet Resolution stating that they will pass a Prevention of Torture and Enforced Disappearance Act. It is troubling that the Royal Thai Army has ordered the legal pursuit of HRDs who have been supporting victims of torture as well as pushing at many levels for policy reform and state action to prevent torture and provide justice to survivors. 
We deem the Royal Thai Army’s action to be an unreasonable, arbitrary, and heavy-handed attempt to silence all complaints of allegations of torture against the authorities. By quashing Ms. Pornpen, Ms. Anchana, and Mr Somchai’s efforts to support torture victims to publicly complain about Human Rights violations by authorities, the Royal Thai Army is seeking to make it more than impossible for torture victims to voice their complaints. Moreover, this is a deplorable act by the Royal Thai Army as it aims to further intimidate existing and potential victims of human rights violations to not report these violations. 




Instead of suppressing the work of Human Rights Defenders, such as Ms. Pornpen, Ms. Anchana, and Mr. Somchai, the Royal Thai Army should, as New Zealand recommended at the UPR, “Promptly investigate and prosecute all allegations of torture and extrajudicial killings,” and as Canada recommended, “Create an independent body to investigate all torture allegations, including in Thailand’s Deep South, and bring perpetrators to justice.”

This judicial harassment constitutes a direct infringement of Ms. Pornpen, Ms. Anchana, and Mr. Somchai’s right to work as a Human Rights Defender in Thailand. As stated in Article 1 of the UN Declaration on Human Rights Defenders “Everyone has the right to (individually and in association with others) promote and to strive for the realization of Human Rights and fundamental freedoms at the national and international level.” We believe that the filing of this criminal legal case against Ms. Pornpen, Ms. Anchana, and Mr. Somchai was undertaken with the purpose of retaliation and that it is in response to the three HRDs peaceful and legitimate activities to hold authorities to account for cases of human rights violations, including torture, in Thailand’s ‘Deep South.’
We call on the Royal Thai Army to:
-   Immediately and unconditionally withdraw the legal action against Ms. Pornpen, Ms. Anchana, and Mr. Somchai. Such legal action against the legitimate work of HRDs is against the public interest.
-      Ensure that no further retaliation is carried out or allowed to happen in the future against HRDs, ill-treatment and torture victims, their colleagues and families. 

We call on the Thai military government to:
-      Respect the universally recognized rights, duties and obligations of everyone and organizations to highlight information about Human Rights violations and injustices to the public, as stated in the UN Declaration on Human Rights Defenders; 
-     Ensure that all persons affected by torture and other human rights violations receive justice, including first and foremost the right to complain which must be respected at all times. 
-    Ensure the implementations of recommendations it accepted during the recent UPR with regard to HRDs.
Signed by:
Organisations
Thailand

Aanglumphong Conservation Groups and Archaeological Site กลุ่มอนุรักษ์สิ่งแวดล้อมอ่างลำพอกและโบราณสถาน สุรินทร์
Assembly of the Poor สมัชชาคนจน กรณีเขื่อนปากมูล
Centre for Community Rights to Manage Natural Resources, Chi Basin ศูนย์พิทักษ์สิทธิการจัดการทรัพยากรชุมชนลุ่มน้ำชี
Center to Study and Develop Law for Human Rights ศูนย์ศึกษาและพัฒนานักกฎหมายเพื่อสิทธิมนุษยนชน
Centre to Study and Ecology Habitation of Community Culture in Phetchabun ศูนย์ศึกษาและฟื้นฟูนิเวศวัฒนธรรมชุมชนเทือกเขาเพชรบูรณ์
Chi Basin Network, Yasothon เครือข่ายน้ำชี จังหวัดยโสธร
Community Resource Centre (CRC) มูลนิธิศูนย์ข้อมูลชุมชน
Campaign Committee for Human Rights (CCHR)คณะกรรมการรณรงค์เพื่อสิทธิมนุษยชน (ครส.)
Empower Foundation เอ็มพาวเวอร์
E-saan Human Rights and Peace Information Centre ศูนย์ข้อมูลสิทธิมุษยชนและสันติภาพ
E-saan Land Reform Network เครือข่ายปฎิรูปที่ดินภาคอีสาน
E-saan Network on Natural Resources and Environmental เครือข่ายทรัพยากรและสิ่งแวดล้อมภาคอีสาน
Foundation for Muslim Attorneys Center มูลนิธิเพื่อศูนย์ทนายความมุสลิม
Foundation for Women มูลนิธิผู้หญิง
Gender equality promoting foundation มูลนิธิส่งเสริมความเสมอภาคทางสังคม
Human Rights Lawyers’ Association (HRLA) สมาคมนักกฎหมายสิทธิมนษยชน
Land Watch Working Group กลุ่มจับตาปัญหาที่ดิน
Mplus Foundation
Namoon Environmental Conservation Group กลุ่มอนุรักษ์สิ่งแวดล้อมบ้านนามูล-ดูนสาด
Network of Indigenous Peoples in Thailand (NIPT) เครือข่ายชนเผ่าพื้นเมืองแห่งประเทศไทย (คชท.)
Network of Thaiban People Deprived of Rights เครือข่ายไทบ้านผู้ไร้สิทธิ์ สกลนคร
People’s Empowerment Foundation
Prorights Foundation มูลนิธิส่งเสริมและคุ้มครองสิทธิมนุษยชน
Southern Peasant Federation of Thailand (SPFT) สหพันธ์เกษตรกรภาคใต้สกต
Saiburi River Association สมาคมลุ่มน้ำสายบุรี
Thai Committee for Refugees Foundation (TCR)
Thai Development Support Center (TDSC) ศูนย์เผยแพร่และส่งเสริมงานพัฒนา(ผสพ)
Thai Working Group for ASEAN Human Rights Mechanism คณะทำงานไทยเพื่อกลไกสิทธิมนุษยชนอาเซียน
Togetherness for Equality and Action (TEA) โรงน้ำชา
Udonthani Environmental Conservation Group กลุ่มอนุรักษ์สิ่งแวดล้อมอุดร
Union for Civil liberty (UCL) สมาคมสิทธิเสรีภาพของประชาชน
WARTANI Media Agency สำนักสื่อ Wartani
WE PEACE สมาคมผู้หญิงเพื่อสันติภาพ
Women Struggle for Livelihood กลุ่มหญิงสู้ชีวิต.
WeMove ขบวนผู้หญิงปฎิรูปประเทศไทย
Women Network for Advancement and Peace เครือข่ายผู้หญิงเพื่อความก้าวหน้าและสันติภาพ
Work and Environment Related Patient's Network of Thailand (WEPT สภาเครือข่ายกลุ่มผู้ป่วยจากการทำงานและสิ่งแวดล้อมแห่งประเทศไทย)
Beyond Thailand

Association of Human Rights Defenders and Promoters (HRDP, Myanmar)
Centre for Independent Journalism (Malaysia)
Center for Sustainable Development in Mountainous Areas (CSDM, Vietnam)
Center for Women's Global Leadership (USA)
LBH Masyarakat (Community Legal Aid Institute, Indonesia)
Malaysians Against Death Penalty and Torture (MADPET)
Malaysian Humanist and Rationalist Movement (MyHARAM)
National Free Trade Union (Sri Lanka)
North South Initiative (Malaysia)
PINAY (Filipino Women’s Organization in Quebec)
PUSAT KOMAS (Malaysia)
Safety and Rights Society (Bangladesh)
The Vietnam Committee on Human Rights (France)
Think Centre (Singapore)
Vietnam Indigenous Knowledge Network (VTIK)
Vietnamese Women for Human Rights (VNWHR)
Workers Hub For Change (WH4C, Malaysia)

Regional/International

Amnesty International
ASEAN Youth Forum
Asia Indigenous Peoples Pact (AIPP)
Asia Pacific Forum on Women, Law and Development (APWLD)
AWID
Civil Rights Defenders
FIDH, within the framework of the Observatory for the Protection of Human Rights Defenders
Focus on the Global South
FRIDA | The Young Feminist Fund
International Labor Rights Forum (ILRF)
Migrant Forum in Asia (MFA)
Nazra for Feminist Studies
Network of Patani's Citizens Outside the Motherland
Protection International
Southeast Asian Press Alliance (SEAPA)
The Asian Forum for Human Rights and Development (FORUM-ASIA)
UPR Info AsiaUrgent Action Fund for Women's Human Rights
Urgent Action Fund Latin America
Women Living Under Muslim Laws
World Organisation Against Torture (OMCT), within the framework of the Observatory for the Protection of Human Rights Defenders

Individuals

Ms.  Kanungnit Makchuchit  คนึงนิจ  มากชูชิต
Ms. Naiyana  Waikham นัยนา  หวายคำ
Ms. Chantawipa   Apisuk จันทวิภา อิสุข
Mr. Jumpol  Apisuk จุมพล อภิสุข
Mr. Bordin Saisaeng Researcher, Institute of Human Rights and Peace Studies, Mahidol University บดินทร์ สายแสง สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล
Chompunut Chalieobun ชมพูนุท เฉลียวบุญ
Dr. Eakpant Pidavanija Lecturer, Institute of Human Rights and Peace Studies, Mahidol University เอกพันธุ์ ปิณฑวณิช สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล
Mr. Ismail Hajiwaechi นายอิสมาอีล ฮายีแวจิ 
Assistant Professor Dr Naruemon Thabchumpon, Political Science Faculty, Chalulongkron University ผศ.ดร. นฤมล ทับจุมพล คณะรัฐศาสตร์ จุฬาลงกรณ์มหาวิทยาลัย
Lecturer Ngamsuk Rattanasatian Lecturer, Institute of Human Rights and Peace Studies, Mahidol University งามศุกร์ รัตนเสถียร สถาบันสิทธิมนุษยชนและสันติศึกษา มหาวิทยาลัยมหิดล
Mrs. Ruengrawee Pichaikul นางเรืองรวี พิชัยกุล
Sor Rattanamanee Polkla, Lawyer
Thaweesak Pi, Social Activist นายทวีศักดิ์ ปิ นักกิจกรรมทางสังคม
Victor Bernard
William Nicholas Gomes, Human Rights Defender and Freelance Journalist, UK
Yuyun Wahyuningrum, Senior Advisor on ASEAN and Human Rights, Human Rights Working Group (HRWG, Indonesia)
ANNEX 1 - Human Rights Defender Profiles

Ms. Pornpen is a leading Human Rights Defender in Thailand who has been involved in various Human Rights issues both in Thailand and the region, including women’s rights, indigenous rights and preventing forced disappearances. Her work serves the public interest by ensuring that authorities are held accountable and pressuring authorities to unconditionally respect the Human Rights of all. As Director and President of the Cross Cultural Foundation, Ms. Pornpen and Mr. Somchai have constantly been monitoring and documenting cases of torture and Human Rights violations in Thailand’s southernmost provinces and other parts of the country

Mr. Somchai is a seasoned and respected Human Rights lawyer in Thailand, who has been fighting to defend people’s Human Rights for the past 25 years. He was a Commissioner for the Law Reform Commission of Thailand until it was disbanded by the current military regime. Furthermore, as president of the Cross Cultural Foundation he has been a key figure forging bridges across Thai society. Cross Cultural Foundation organises educational activities, as well as research and legal support to promote people’s Human Rights, especially in Thailand’s southernmost provinces which are in a state of prolonged armed conflict. In September 2014, both Ms. Pornpen and Mr. Somchai, as well as their organization, faced a criminal defamation and computer-related crimes charge filed by Army Task Force 41. The case was eventually dropped by decision of the state prosecutor in June 2015 following an international campaign denouncing the Thai Army’s harassment and intimidation of these HRDs for their legitimate and crucial Human Rights work.

Ms. Anchana is Director of Duay Jai Group which has been working with victims of ill-treatment in national security cases since January 2010, in Thailand’s southernmost, conflict-affected regions. Following the release of the report on torture cases, on 14th February, Col. Suratep, Head of the Civil Society Organisations unit under the Internal Security Operations Command ('ISOC'), contacted Ms. Anchana and other activists who were involved in compiling the report and summoned them for a discussion. Ms. Anchana presented herself at Sirinthon Army Camp in Yala Province for the discussion with seven security officers. The meeting lasted two and a half hours, during which the officers questioned Ms. Anchana about the cases in the torture report. The officers expressed their discontent with the report and requested the human rights defender to henceforth submit all of her publications to the ISOC prior to their release. Ms. Anchana refused to do so. Thai Lawyers for Human Rights (TLHR)[4] reported that at about 5 pm on Friday, 19th February 2016, a group of ten men in green uniforms visited the home of Ms. Anchana, in Songkhla Province, but only Ms. Anchana’s mother was home. Without presenting any warrant, they claimed to be border police officers and asked about Ms. Anchana’s work and her personal information. The activist’s mother reported that the men took pictures of her and the house. She added that before they left they told her to inform Ms. Anchana not to use Line, a chat application, or Facebook.


[2]               Computer Crimes Act, Article 14.1
“Whoever commits the following offences, shall be punished with imprisonment not exceeding five years and fin not exceeding on hundred thousand baht or both:
(1) input, into computer system, forged computer data in whole or in part or false computer data in a manner likely to cause injury to another person or the public;”
[3]               See Annex 1 – Human Rights Defender Profiles for more details.