ITUC - Malaysia: Japanese Firm Must Drop Defamation Charges Against Human Rights Defender

Malaysia: Japanese Firm Must Drop Defamation Charges Against Human Rights Defender

and Respect the Rights of Migrant Workers

16 August 2011: On February 14, 2011, the Malaysian subsidiary of Japanese electronics firm Asahi Kosei filed a $3.2 million defamation suit against human rights defender Charles Hector after he posted on his blog reports he received from Burmese migrant workers detailing violations of their labour and human rights at the company.

The International Trade Union Confederation (ITUC) calls on the company to drop the charges, which appear to have no purpose other than to silence critics by threat of financial ruin. Further, the lawsuit has the potential to chill the speech of other workers and worker advocates who would otherwise speak out against violations of fundamental rights committed by other domestic and multinational corporations in Malaysia. The ITUC also calls upon Asahi Kosei (M) Sdn Bhd to hire its workers directly, rather than through an outsourcing agency, and to respect Malaysian and international standards on both labour and migration.

Thirty-one Burmese migrants working at Asahi Kosei (M) Sdn Bhd alleged being paid wages lower than what was promised when they agreed to migrate to Malaysia; numerous illegal (and large) wage deductions; loss of cooking utensils, electricity and even accommodation for raising employment-related grievances; and being threatened with termination and deportation of workers when they lodged complaints about these violations. Hearing this, Mr. Hector intervened on the workers’ behalf, seeking additional information and a reply to the workers’ allegations from the company. Hearing no reply, Mr. Hector posted the allegations to his blog on 8 February to pressure the company to address workers’ complaints. The company filed suit against him six days later.

One argument that the company has put forward is that it is not responsible for the workers, as they are actually supplied to the company through a third-party. Although Asahi Kosei (M) Sdn Bhd does not pay the workers directly, the workers at the factory are under their direct control and supervision, and use the tools and equipment of the factory. There is little question that Asahi Kosei (M) Sdn Bhd is, under an objective assessment of the arrangement, the employer – regardless of the contract. Indeed, ILO Recommendation 198, which sets forth criteria for ascertaining the existence of an employment relationship, suggests that an employment relationship does exist in this case. Further, we understand that the outsourcing company through which Asahi Kosei (M) Sdn Bhd procured the migrant workers was not legally registered in Malaysia under the law regulating private employment agencies.

The court dates for Mr. Hector have been set for 23-26 August. The ITUC adds its voice to urge that the company immediately drop its defamation claim against Mr. Hector. The ITUC also calls upon the company to respect the rights of workers, regardless of their contractual status, and strongly encourages it to hire workers directly. Further, the ITUC calls upon the Malaysian authorities to investigate the labour violations alleged and to take action accordingly.

Source: International Trade Union Confederation Website

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - some responses

Asahi Kosei libel suit against Malaysian labour activist Charles Hector - June 2011

In February 2011 the Malaysian subsidiary of Japanese machine parts manufacturer, Asahi Kosei, sued Malaysian labour activist Charles Hector for defamation for statements the activist had posted on his blog and Twitter page regarding the plight of Burmese workers at the company's factory. The trial has been set for 28-29 June. In the intervening period a number of NGOs criticised the company calling upon it to drop the lawsuit and address the concerns that Hector raises.

On 23 June Human Rights Watch issued a statement about the case, which was reported by the Associated Press. That article states that Asahi Kosei was invited to comment, but declined:

"Company chastised for suing Malaysia rights lawyer", Sean Yoong, AP, 23 Jun 2011

"...The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding...$3.3 million...in damages. Hector alleged on his blog in February that 31 Myanmarese factory workers for the company had experienced unlawful salary deductions and were threatened with deportation...Human Rights Watch complained about the large sum the company is seeking, saying it could 'intimidate labor and human rights defenders all over Malaysia.'...Asahi Kosei's representatives in Malaysia declined to comment, saying they want to wait for the High Court in Malaysia's central Selangor state to hear the case. The company contends it was not responsible for the workers because they were supplied by an employment agency and were not under the company's direct payroll at its factory on the outskirts of Kuala Lumpur. The company also said in its lawsuit that it was not aware of any attempted deportation of the workers..."

On 27 June, the eve of the opening of the trial, the NGO Article XIX made this plea to the Malaysian Court to consider Hector's rights to freedom of expression:

"Malaysian Blogger Defamation Case: Cause for Concern", Agnes Callamard, Article XIX, 27 Jun 2011

"Ahead of Malaysia human right defender and blogger - Charles Hector’s defamation trial on 28-29 June 2011, ARTICLE 19 calls on the Malaysian Court to consider the case in line with international freedom of expression standards. Given the fundamental importance of the right to freedom of expression, and its recognition in Article 10 of the Malaysian Constitution, ARTICLE 19 urges the Court to ensure that Malaysian defamation law is interpreted, to the extent possible, in a manner that respects Hector’s freedom of expression..."

The following is a selection of earlier NGO criticism of the company:

"International Campaign for Responsible Technology concerned by Asahi Kosei", Ted Smith, Coordinator, International Campaign for Responsible Electronics, 24 Mar 2011

"To: Asahi Kosei Japan Co. Ltd... I am writing to you regarding the flagrant human rights violations undertaken by Asahi Kosei against Malaysian labor activist Charles Hector...Before any posting [by Hector regarding the situation of the Burmese workers], an email was sent to the company for clarification/verification, which contained also these words, “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 subsequently commenced a legal suit six days later. The punitive lawsuit...accentuates the harsh reality of Burmese migrant workers in Malaysia...It is a matter of public interest to ensure the grievances of any persons whose human rights have been violated are heard. Without it, there is no access to justice...I would appreciate a reply acknowledging receipt of this letter...Sincerely, Ted Smith..."

"Malaysian Bar unanimously supports rights defender sued by Asahi Kosei", Aliran, 19 Apr 2011

“...the Malaysian Bar unanimously carried a motion in support of human rights defender Charles Hector....In the motion, the Malaysian Bar refers to... the Declaration on Human Rights Defenders...The Bar also references Malaysian law...The motion states that public interest 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. The Bar declares that ‘...it is best that the company does not continue to go after the ‘whistle blower’ but rather to commence the necessary investigations and...ensure that all rights of workers that work in the company are not violated, and justice is upheld’... [Includes full text of the motion]

"Stop legal action against Malaysian human rights lawyer and blogger", FORUM-Asia, 27 Apr 2011

"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...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...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..."

Source: Business & Human Rights Resource Centre

http://www.business-humanrights.org/Documents/asahikoseilibelsuit

NON OF COMPANY INVOLVED HAS DONE THE RIGHTS THINGS PLEASE TAKE ACTION BY SIGNING THE PETITION HERE :

https://www.change.org/petitions/ford-chrysler-and-sony-dont-buy-from-factories-that-fight-against-human-rights

AND HERE:

http://www.thepetitionsite.com/319/--if-gte-mso-9xml-wworddocument-wviewnormalwview-wzoom0wzoom-wtrackmoves-wtrackformatting/

The full trial is now fixed for August 24-26 2011

Migrant Workers(Documented) 2010 - 1,817,817 from Indonesia, Bangladesh, Nepal, Burma...

Migrant Workers(Documented) 2010 - 1,817,817 from Indonesia, Bangladesh, Nepal, Burma...

Appreciation to Senator Ramakrishnan, who have send me recent statistics on migrant workers in Malaysia, that was obtained as a response to a Parliamentary question raised. The answer is in Bahasa Melayu - and the rough English Translations are mine.

Like Senator Rama, I do hope that other Members of Parliaments(MPs), Senators and State Assembly Persons will also share the information to the general public when they get it from the government through Parliamentary questions and other means. If it concerns human rights, workers and migrants, just send it to me at chef@tm.net.my and/or easytocall@yahoo.com, and I will certainly help make this information public by highlighting it in my blog, etc..

We still need to fight for all written questions and their answers to be made available to the public on the Parliamentary Website - now it is not, and this is an improvement we should have towards greater transparency and accountability. Too many answers given by the government to elected people's reps end up in files - and the information just do not reach the public. Use your blogs MPs, Senators, ADUN - sent it out to people who will get it out to the public... Pakatan Rakyat can also compile and publish all written questions and answers...

PEMBERITAHUAN PERTANYAAN DEWAN NEGARA SESI JULAI 2011

Notice of Question in the Malaysian Senate's session July 2011

PERTANYAAN : BERTULIS

Question : Written

DARIPADA : Y.B. SENATOR DR. S. RAMAKRISHNAN

From

Soalan/Question

Dr. S. Ramakrishnan minta MENTERI DALAM NEGERI menyatakan:

Dr S. Ramakrishnan asks the Home Minister to state:-

(a) statistik pekerja asing mengikut negara asal mereka dan sektor pekerjaan kerana terdapat pendatang asing ini yang menyalahgunakan pas pelajar dan pas lawatan sosial dengan melakukan pekerjaan yang tidak bermoral seperti pelacur dan pengemis; dan

statistics of migrant workers according to their country of origin and sector of work as there are foreign migrants that abuse their student passes and social visit passes by doing immoral work like prostitutes and beggars, and

(b) apakah tindakan kerajaan untuk membanteras perniagaan secara haram yang dilakukan oleh pendatang asing ini di negara kita.

what is the government action to curb illegal businesses done by foreign migrant in our country

Jawapan

Answer

Saya mengucapkan terima kasih kepada Yang Berhormat Senator di atas soalan yang dikemukakan.

I wish to thank the Senator for the question that has been submitted

Mengikut statistik daripada Jabatan Imegresen Malaysia, bermula dari 1 Januari 2010 sehingga 31 Disember 2010, terdapat seramai1,817,817 warganegara asing yang memegang Pas Lawatan Kerja Sementara (PLKS) yang aktif.

According to the statistics obtained by the Malaysian Immigration Department, begining 1 January 2010 until 31 December 2010, there are 1,817,817 foreign nationals that are holding Social Visit (Temporary Employment) Passes that are active.

Warganegara asing hanya dibenarkan bekerja dalam enam (6) sektor seperti berikut:

Foreign nationals are only permitted to work in six(6) sectors as follows:

i. Pembantu rumah [Domestic Worker]

ii. Pembinaan [Construction]

iii. Pembuatan [Manufacturing]

iv. Perkhidmatan [Services]

v. Perladangan [Plantations]

vi. Pertanian [Agriculture]

Lima buah negara sumber yang mempunyai pekerja asing paling ramai di Malaysia dari 1 Januari 2010 sehingga 31 Disember 2010 adalah seperti berikut:

Five(5) source countried that have the most number of migrant workers in Malaysia as from 1 January 2010 until 31 December 2010 are as follows:-

Negara Sektor	INDONESIA	BANGLADESH	NEPAL	MYANMAR	INDIA
Pembantu rumah	189,391	64	63	114	497
Pembinaan	151,333	50,303	3,050	12,221	3,488
Pembuatan	127,127	144,332	209,446	116,478	7,982
Perkhidmatan	28,587	22,002	26,502	19,368	38,648
Perladangan	214,594	20,480	2,032	3,462	16,954
Pertanian	81,777	82,294	10,323	8,861	27,543
Jumlah	792,809	319,475	251,416	160,504	95,112

English table

Country Sector	INDONESIA	BANGLADESH	NEPAL	MYANMAR	INDIA
Domestic Workers	89,391	64	63	114	497
Construction	151,333	50,303	3,050	12,221	3,488
Manufacturing	127,127	144,332	209,446	116,478	7,982
Services	28,587	22,002	26,502	19,368	38,648
Plantations	214,594	20,480	2,032	3,462	16,954
Agriculture	81,777	82,294	10,323	8,861	27,543
Total	792,809	319,475	251,416	160,504	95,112

Berhubung dengan tindakan untuk membanteras perniagaan secara haram oleh pendatang asing di negara kita, perkara ini adalah di bawah bidang kuasa Kementerian Perumahan dan Kerajaan Tempatan yang mengeluarkan lesen untuk sesuatu perniagaan.

With regard the actions to curb illegal businesses by foreign migrants in our country, this is under the jurisdiction of the Housing and Local Government Ministry that issues licences for a particular business.