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

Company chastised for suing Malaysia rights lawyer (AP)

Associated Press

Company chastised for suing Malaysia rights lawyer

By SEAN YOONG , 06.23.11, 05:33 AM EDT

KUALA LUMPUR, Malaysia -- A company's multimillion-dollar lawsuit against a rights lawyer who complained about how it treated migrant workers in Malaysia could scare activists across the country into silence, an international rights group warned Thursday.

The Malaysian subsidiary of Japanese machine components maker Asahi Kosei has sued Charles Hector for defamation and is demanding 10 million ringgit ($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.

Hearings are scheduled to begin June 28.

Human Rights Watch complained about the large sum the company is seeking, saying it could "intimidate labor and human rights defenders all over Malaysia."

"A company's right to protect its reputation should not become a way to cut off important discussions of matters of public concern," the New York-based group said in a statement.

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.

Activists have long voiced concerns about the living conditions of hundreds of thousands of migrant laborers who mainly have menial jobs in Malaysian factories, plantations, construction sites and restaurants. Most are from poorer countries in Asia such as Indonesia, the Philippines and Bangladesh.

"Migrant workers frequently receive low wages, suffer from dirty and dangerous working conditions, and are prohibited from changing employers," Human Rights Watch said.

Asahi Kosei did not appear to dispute Hector's claim of rights abuses involving the workers but asserted he was wrong about the company's relationship with the workers, Human Rights Watch said.

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.

The Malaysian Bar Council, which comprises thousands of lawyers, expressed support earlier this year for Hector, saying Asahi Kosei's lawsuit was "a deplorable and coercive act." - Forbes.com, 23/6/2011, Company chastised for suing Malaysia rights lawyer

Malaysian Bar Press Release: Defend human rights defenders (Charles Hector) and safeguard migrant workers.

Press Release: Defend human rights defenders and safeguard migrant workers Monday, 21 February 2011 10:55am

Asahi Kosei (M) Sdn Bhd’s threat to bring a RM10 million defamation lawsuit against Charles Hector, a Member of the Malaysian Bar, is a deplorable and coercive act. The Japanese-owned Malaysian company has demanded this sum over a blog article by Charles Hector in which the latter alleges that, in response to grievances raised by 31 of their workers from Myanmar, the company threatened the workers with termination of employment and possible deportation back to Myanmar. The complaints ranged, it was alleged, from non-payment of agreed wages, unlawful deductions, and monetary penalties for absences from work. We call on both the Malaysian and Japanese authorities to launch immediate investigations into the authenticity of the allegations that Charles Hector has brought to light, and to act immediately to prevent the committing or continuation of any human rights abuses against migrant workers. Instead of harassing them and threatening them with incarceration, sedition or, in this case, defamation, state and non-state actors would do well to study the allegations made by human rights defenders like Charles Hector on behalf of voiceless migrant workers. They should also carefully study the terms and conditions of work to which migrant workers are subject, the conditions under which they live, and the restrictions under which they are placed, to ensure that these conform to internationally-accepted standards. The case also brings to light the practice, permitted by the Immigration Department and the Ministry of Human Resources, of allowing selected companies who have no labour operations themselves to nonetheless recruit foreign workers from overseas, and then to outsource these workers to third parties for a fee. To avoid any further incidents of abuse against migrant workers, or allegations of the same, the Malaysian Bar calls upon the Government to quickly ratify and implement the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was adopted by the UN General Assembly on 18 Dec 1990, and to give full effect to the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers, made on 13 Jan 2007. The Malaysian Bar also calls on the Government to support and uphold the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, otherwise known as the Declaration on Human Rights Defenders, which was adopted by the UN General Assembly on 9 Dec 1998. In particular, we urge the Government to take all necessary measures to ensure the protection of these human rights defenders from any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of their legitimate exercise of the rights referred to in the Declaration. This incident gives the Government a clear opportunity to improve its less-than-sterling record of protecting those who stand up for human rights. Ragunath Kesavan President Malaysian Bar 21 February 2011

http://www.malaysianbar.org.my/press_statements/press_release_defend_human_rights_defenders_and_safeguard_migrant_workers.html

$3.2m lawsuit for defending Burmese migrants (DVB, 16/2/2011)

Democratic Voice of Burma, 16/2/2011, $3.2m lawsuit for defending Burmese migrants

Lawyer Charles Hector, who is facing a $3.2 million lawsuit (WH4C)

By JOSEPH ALLCHIN
Published: 16 February 2011

A Malaysia-based Japanese multinational is lining up a multi-million dollar defamation lawsuit against a lawyer who is defending a group of Burmese workers threatened with deportation.

Electrical components’ company Asahi Kosei has denied allegations lodged by lawyer Charles Hector that it attempted to deport two workers back to Burma. The two men are among 31 who complained that their employers at the company had broken contractual obligations, including a refusal to pay the agreed salary.

Hector, who is defending the 31, went public with the allegations after receiving no response to a letter sent to Asahi Kosehi on behalf of the workers. He mustered the support of some 77 organisations in multiple countries who composed a media statement on the 11 February, as well as writing a post on his blog. It was after this that Asahi Kosei responded with their MYR10 million ($US3.27 million) legal threat.

“The attempt to go against human rights defenders personally is an attempt to suppress the public interest function that human rights activists play in highlighting violations of human rights visited on marginalised people by the bigger, more powerful employer companies,” said Pranom Somwong of the Workers Hub for Change (WH4C).

According to Malaysian government statistics, there are close to 100,000 registered Burmese workers in the country, comprising some five percent of the total registered workers. Rights group say however that hundreds of thousands additional migrants from Burma are unregistered. Given the sketchy legal status of many, violations of labour rights are believed to be common.

The situation between the 31 Burmese and their employers turned nasty on 7 February, a week after they filed their complaints, when a mob escorted by police arrived at their hostel in the Balakong township of Selangor, Malaysia, and threatened them. The mob then cut the electrics and walked off with household appliances, such as the hostel’s television and cooking utensils.

Mirroring a recent incident in Johor in Malaysia, the police allegedly nabbed two of the workers’ leaders, Thiha Soe and Aung San. They believed they were being taken to Kuala Lumpur International Airport, WH4C says, but managed to escape.

The following day the workers submitted a complaint to the Human Rights Commission of Malaysia (SUHAKAM) and were preparing a complaint for the labour ministry when on 9 February they were given a new contract to sign. Accompanying the contract however was an ultimatum that if they refused to sign, they would be deported to Burma immediately.

Twenty-nine of the workers signed under pressure but Thiha Soe and Aung San refused. They were then separated and handed over to the recruitment agents who took them to unknown locations, possibly with a view to sending them back to Burma.

Asahi Kosei makes parts for a number of international brands, such as JVC, Seiko, Hitachi, Mitsubiushi, Philips and Sharp. It has denied all allegations, and told Hector that it had made all payments to the recruitment agents, thereby passing the blame onto them. But a subsequent letter sent by the veteran lawyer to the company was ignored, prompting him to go public with the case.

“The fact of the matter is that workers in a company should be the responsibility of the said company, and they cannot just avoid responsibility by saying that these are not their own workers but workers of some other company,” said Pranom.

Related post:-

Asahi Kosei threathens legal action against Charles Hector

Asia-Japan Women's Resource Center (AJWRC) makes it 82 - Asahi Kosei statement

Syed Shahir : Discontinue Threats and Action Against Charles Hector, Blogger and Human Rights Defender, for highlighting plight of workers.

Media Statement – 18/2/2011

Discontinue Threats and Action Against Charles Hector, Blogger and Human Rights Defender, for highlighting plight of workers.

The Union is appalled by the reaction of Asahi Kosei (M) Sdn.Bhd., a subsidiary of Asahi Kosei Japan Co. Ltd, in going after persons who highlighted the plight of Burmese migrant workers who work in the company’s factory. We call for the immediate withdrawal of the threat of a legal suit demanding RM10,000,000-00 from Mr. Charles Hector for highlighting worker rights and human rights violation that were happening to the said 31 workers.

In response to legitimate grievances raised by the said workers, which included non payment of wages as agreed, wrongful imposition of a ‘fine’ for absence from work, and unlawful deductions from wages, the response was to use threats on these workers, deprivation of electricity and other utensils at the living quarters of these workers, and the threat to terminate and even send them back to Burma.

Now, the company seem to be denying all allegations, even to the extend of saying that these are not their workers, and that these were not workers under the ‘direct payroll’ of Asahi Kosei (M) Sdn. Bhd. They allege that all the affected workers were supplied by an outsourcing agent, and in short, they seem to say that they are not responsible for these workers or what happened to them.

It is our position that all workers working at any factory and/or workplace must be directly employed by the said company operating the said factory. It matters not how you got your workers, but the moment they do start working they become your workers, and the employer, in this case Asahi Kosei (M) Sdn. Bhd., is fully responsible for these workers. The company should pay salary directly to the worker, and ensure that all workers working for them enjoy all rights, benefits and other entitlements due to workers under the employer-worker agreements, collective bargain agreements covering the said factory, and existing rights guaranteed under the Malaysian law to workers.

Workers working in a factory should also have the right to join the said factory’s in house union, and also regional/state/national unions covering the sector in which the factory operations come under.

It is very wrong, and certainly anti-worker anti-trade union if employers can shirk responsibilities justly owed by the said employer, by stating that these migrant workers were not under the direct payroll of the company, but under the employ of some other person and/or company.

Workers working at any particular factory should all be paid directly by the said company, and not through any other third party. All workers who work in a particular factory should be accorded equal treatment, and that includes equal pay for equal work, and also equal entitlement of rights.

The Malaysian Federal Constitution guarantees equality, and even the Employment Act 1955, in section 60L, clearly promotes anti-discrimination of workers, and gives the right of all workers, whether local and/or foreign, the right to lodge complaints in the event of discrimination on the basis of nationality of the said worker.

The power that workers and trade unions have when it comes to dealing with their employers is worker action, which includes strikes, and if Malaysian government permits a new class of workers to be working at a workplace, who are workers of some other third party, then it just weakens the power of workers and/or their unions in demanding for better rights and benefits from their employers.

The Malaysian government tried to legalize the practice of using workers of some third parties at the workplace by the introduction of ‘contractors of labour’, through D.R.25/2010 Employment (Amendment) Bill 2010, that was tabled in Parliament in July 2010 but due to public pressure, this Bill was withdrawn.

Malaysian Trade Union Congress have also came out repeatedly against this practice of using workers of third parties, and has called for an immediate revocation of licences of all labour outsourcing companies. Since demands made by unions to the Malaysian government, has yet to bear fruit, maybe it is time for MTUC and other trade unions to take this obviously pro-employer government to court on this matter.

It may be alright for agents and companies to assist companies in identifying and providing workers for companies, but the moment the companies accept these workers, there must immediately be an employment agreement and relationship with all these workers directly and the said company. The workers thereafter are the workers of the said company, and the company shall be fully responsible for the recognition and protection of all worker rights.

Any good company that respects universally accepted human rights and worker rights will not resort to using workers of another at their factories, and will not shirk their responsibilities to their workers with claims that they are not their workers, and when there are allegations worker rights violations to try divert this responsibility to workers to some other third party.

The current action of Asahi Kosei (M) Sdn. Bhd., in attempting to go after human rights defenders, worker rights activists and advocates, in this case Mr Charles Hector, with threats of a legal suit is so wrong and against public interest. The intention here seems to be an attempt to silent concerned persons and organizations from highlighting worker rights and human rights violations in an effort to stop further violations, and ensure that justice is done.

Allegations of human rights worker rights violation should rightly be dealt with by companies through negotiations with workers and/or trade unions, using the available mechanisms that are available, and not by targeting those that highlight these violations be it bloggers, media agencies, civil society organizations or even individuals, who do have a moral obligation and duty to bring to public notice any perceived wrongdoing, human rights violations and worker rights violations.

We note also that this matter of rights violation at Asahi Kosei, is the subject matter of a Joint Media Statement, currently endorsed by about 80 civil society organizations.

We call for an immediate and unconditional withdrawal of this threat of a legal suit and/or any legal action (if it has already been commenced) against Charles Hector.

We call on Asahi Kosei(M) Sdn. Bhd., to also take direct and full responsibility for all workers working in their factory, and not try to shift blame to some other third party. We hope that Asahi Kosei(M) Sdn. Bhd., do the needful, including reinstating the 2 migrant workers that have been stopped from working by reason of their refusal to sign a new ‘contract’ forced on them.

Syed Shahir Syed Mohamud

Executive Secretary of National Union of Transport Equipment & Allied Ind.Workers

(Former President of Malaysian Trades Union Congress- MTUC)

Syed Shahir can be contacted: Tel. 603- 55192421/55193860. Fax: 603-55106863

84 NGOs : Asahi Kosei (M) Sdn. Bhd must respect Human Rights and Worker Rights Reinstate Thiha Soe and Aung San Without Loss of Benefits

Media Statement - 11/2/2011 (84)

Asahi Kosei (M) Sdn. Bhd must respect Human Rights and Worker Rights

Reinstate Thiha Soe and Aung San Without Loss of Benefits

We, the undersigned 84 organizations, groups and networks are shocked at how Asahi Kosei (M) Sdn Bhd has unjustly treated its workers, in particular the 31 Burmese Migrant Workers, working at the factory at Lot 3377, Jalan Perusahaan Utama, Taman Industri Selesa Jaya, 43300 Balakong, Selangor Darul Ehsan, Malaysia.

On or about 31/1/2011, 31 Burmese migrant workers complained about non-compliance by the employer with their agreement. The workers alleged that the employer was paying them far less than what was promised. They also expressed disappointment in the wrongful deductions from their wages, which included deduction for hostel charges when the agreement was that the employer shall provide free accommodation. They also raised their disagreement with the deduction of RM50-00 for every day that a worker does not come to work, when the daily rate of pay is only RM20. They also wanted paid medical leave, which really is already a legal right in Malaysia.

In response, the workers informed us that on 7/2/2011 a gang of persons came and threatened them at their hostel. The police allegedly came with these persons. Before they left, these persons took all cooking utensils and materials, television, cooking gas, refrigerator, table fan and rice cooker) used by the workers. They switched off the electric main switch, and left the workers in the dark with no electricity. These persons reasonably can be assumed to be workers/agents of the employer.

Two workers, without their consent, were allegedly taken to the Kuala Lumpur International Airport (KLIA) with the impression that the employer will be sending them back to Burma (Myanmar). Fortunately, the said 2 workers managed to escape and run away.

On 8/2/2011, the workers lodged a complaint with the Malaysian Human Rights Commission (SUHAKAM) and also were preparing the formal paperwork required to lodge a complaint with the Labour Department.

On 9/2/2011, the employer had a meeting with the said 31 workers, whereby they proposed:-

a) an increase the salary to RM23 per day (whereby previously it was RM20),

b) that there will be no more allowances (previously RM2/day was paid as shift allowance and RM30 as monthly allowance)

c) that if worker is absent for 2 days in one month, they will deduct RM-50 (previously for ever day absent, the employer deducted RM50)

d) Hostel Charges shall be reduced to RM30 per month (previously it was RM50 per month)

The employer then gave the workers an ultimatum that they sign the new contract now, or be terminated and sent back to Burma immediately. The workers were not given any opportunity or time to consider the proposal, or to discuss the matter further.

Finally, all workers save 2, cowed under pressure and signed the new contract. The 2 workers who did not sign are Thiha Soe (PP No: A 458011) and Aung San (PP No: A432863), whereby Aung San was the worker who signed the complaint for and on behalf of all the workers when the complaint was lodged at the Human Rights Commission on 8/2/2011.

Thiha Soe and Aung San were then handed over by the employer to the recruitment agent, possibly to send them back to Burma. Both workers have been separated and taken to different undisclosed location. Both workers do not want to be sent back to Burma, and want to continue working at Asahi Kosei(M) Sdn Bhd factory in Balakong.

Asahi Kosei(M) Sdn Bhd, a subsidiary of Asahi Kosei Japan Co. Ltd., which makes Die-Cast Aluminium Parts for HDD(Computer Parts), VTR, And Automotive parts for, amongst others, Hitachi Ltd Automotive Systems, Hitachi Seisakusho, Denso(Toyota), Kawasaki Heavy Industry, Hitachi(Thai), Modenas , Seiko Instrument, Hitachi Global Storage, Matsushita Kotobuki, Matsushita Electronics, Toshiba, Maxtor, Seiko Epson, Kanematsu Device, Sony, Hitachi, Matsushita, JVC, Mitsubishi Electric, Philips, Sharp, Sanyo, Toshiba, Thomson, Yaskawa and Hitachi Mexico. It is sad that some companies with declared code of conducts and standards are seen to be associated with companies that violate worker and human rights.

We the undersigned 84 organizations, groups and networks

a) Call for Asahi Kosei(M) Sdn Bhd to immediately reinstate Thiha Soe and Aung San without any loss of benefits, and if they have already been sent back to Burma to cause that they be brought back to Malaysia to work;

b) Call for Asahi Kosei(M) Sdn Bhd to apologize to its workers for the wrongs it did, and to pay fair compensation/damages for their actions/omissions that violated rights of their workers;

c) Call for Malaysian government and/or the relevant Ministries/Department to take necessary action against Asahi Kosei(M) Sdn Bhd and the said recruiting agent concerned to ensure that justice is done for the workers;

d) Call on the Malaysian government to legislate and make actions of preventing workers access to justice an offence with a substantial penalty, that will deter employers resorting to termination and/or deportation as a threat and/or means to avoid legitimate claims by their workers;

e) Call on Local Councils and State authorities, who do issue permits and allow factories to operate within their jurisdiction, to ensure that such factories do not violate human rights and worker rights. Asahi Kosei (M) Sdn Bhd operates in the state of Selangor;

e) Call on the Malaysian government to ensure that no migrant worker is sent back to their country of origin before first verifying that all outstanding and/or potential claims and disputes between worker and employer (and/or agent or other relevant party) in Malaysia have been fully and finally settled.

f) Call on Hitachi, Sony, Philips and other companies who do have a Code of Conduct and/or who proclaim that they hold human rights and worker rights as important, who have been listed as customers of Asahi Kosei (M) Sdn Bhd and/or Asahi Kosei Japan Co. Ltd to seriously re-evaluate their relationship with such companies that clearly do not respect human rights and worker rights.

g) Call on consumers and/or investors to take into consideration human rights, including worker rights of companies and their supply chain when they do invest and/or purchase their consumer products.

Charles Hector

Pranom Somwong

Ko Tun Tun

For and on behalf of the following 84 organizations

Abra Tinguian Ilocano Society - Hong Kong (ATIS-HK)

Abra Migrant Workers Welfare Association (AMWWA)

ALIRAN, Malaysia

All Burma Students League

APFS Labor Union, Japan

Asia Pacific Mission for Migrants (APMM), Hong Kong

Asia-Japan Women's Resource Center (AJWRC)

Association of Concerned Filipinos in Hong Kong (ACFIL-HK)

Association of Indonesian Migrant Workers, Hong Kong

Asia Pacific Students and Youth Association (ASA)

BAYAN Hong Kong

BAYAN USA

Campagne Vêtements Propres, Belgium

Centre d'appui aux Philippines - Centre for Philippine Concerns, Canada

Cordillera Alliance in Hong Kong (CORALL-HK)

Building and Wood Workers International (BWI)

Burma Campaign Malaysia

Burma Partnership

Centre Communautaire des Femmes Sud-Asiatique, Montréal, Canada

Centre d'appui aux Philippines - Centre for Philippine Concerns, Canada

Cuyapo Association Hong Kong

Democratic Party for New Society (DPNS), Burma

Empower, Thailand

FICAP-Aichi

Filipino Friends in Hong Kong

Filipino Migrants Association (FMA)

Filipino Migrant Center (FMC) in USA

Filipino Migrant Workers' Union - Hong Kong (FMWU)

Filipino Women Migrant Workers Association (FILWOM)

Filipino Women's Organization in Quebec, Canada

Free Burma Coalition, Philippines

Friends of Bethune House (FBH), Hong Kong

GABRIELA Hong Kong

GABRIELA-Japan

GABRIELA-Nagoya

Globalization Monitor (GM), Hong Kong

GoodElectronics Network

Health Equity Initiatives, Malaysia

HMISC (Hsinchu Catholic Diocee Migrants and Immigrants Service Center), Taiwan

IMA Research Foundation, Bangladesh

International Metalworkers' Federation (IMF)

Johor Texitle And Garments Workers Union

KAFIN-Nagoya

KAFTI (Japan)

Kilusang Mayo Uno, Philippines

Legal Support for Children and Women (LSCW), Cambodia

LIKHA Filipino Migrant Cultural Organization

MADPET - Malaysians against Death Penalty and Torture

May 1st Coalition, USA

Migrante B.C. (Canada)

Migrant Care, Indonesia

MIGRANTE Europe, Netherlands

Migrante International

MIGRANTE-Japan

Migrante - Middle East

MIGRANTE-Nagoya

MIGRANTE Sectoral Party - Hong Kong

Mission Volunteers (MOVERS)

National Human Rights Society (HAKAM), Malaysia

National Union of Transport Equipment and Allied Industries Workers(NUTEAIW)

Network of Action for Migrants in Malaysia (NAMM)

ＮＧＯ Jinken, Seigi to Heiwa Rentai Forum Fukuoka (NGO Solidarity Forum for Human Rights, Justice and Peace in Fukuoka)

Pangasinan Organization for Welfare, Empowerment and Rights (POWER)

Persatuan Kesedaran Komuniti Selangor (Empower)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS)

PHASE TWO (People for Health and Safety in Electronics), Scotland

Philippine Society in Japan

Pinatud a Saleng ti Umili (PSU)

Project Maje ,Portland, Oregon USA

Pusat Komas

Quê Me: Action for Democracy in Vietnam, France

Rage & Football Collective, Japan

Suara Rakyat Malaysia (SUARAM), Malaysia

Thai Committee for Refugees (TCR)

Think Centre, Singapore

Transient Workers Count Too (TWC2), Singapore

United Filipinos in Hong Kong (UNIFIL-MIGRANTE-HK)

United Indonesians Against Overcharging, Hong Kong

Vietnam Committee on Human Rights, France

WARBE Development Foundation, Bangladesh

Workers Assistance Center, Philippines

Workers Hub For Change (WH4C)

World Forum for Democratization in Asia

Yaung Chi Oo Workers Association (YCOWA), Thailand

* After the 1^st issue on 11/2/2011, more groups have endorsed it.

Open Letter from the Asian Human Rights Commission to the Asahi Kosei (M) Sdn. Bhd.

FOR IMMEDIATE RELEASE
February 18, 2011

AHRC-OLT-002-2011

An Open Letter from the Asian Human Rights Commission to the Asahi Kosei (M) Sdn. Bhd.

Company

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

Dear Mr. Nishitsuji,

MALAYSIA: Protest against a threat of litigation against human rights lawyer, public interest advocate and blogger Mr. Charles Hector Fernandez

The Asian Human Rights Commission (AHRC) is writing to draw your attention regarding the instructions to T.S. Teoh & Partners, your legal representative, on the possibility of taking legal action for libel against Mr. Charles Hector Fernandez, a blogger and lawyer, regarding the posts in his blog you claim to be libellous.

In the demand letter dated February 11, 2011, but which was served on Mr. Fernandez on February 14, you claimed that the content of his post in his blog charleshector.blogspot.com, on February 8, titled ' Hopefully ASAHI KOSEI (M) SDN. BHD wont terminate/deport workers who claim rights'; and on February 9, titled ' URGENT:- Stop ASAHI KOSEI (M) SDN. BHD from sending Thiha Soe (PP No: A 458011) back to Burma, were "very serious libel on our clients and have caused them much distress and embarrassment".

Your Company also demanded a payment of RM10,000,000.00 (USD3,279,307) within seven days from him to 'vindicate our clients reputation', to "remove the said postings and a full written and unequivocal public retraction and written apology in terms to be approved by us and an undertaking not to repeat these allegations".

As of today, the post that is subject of your complaint can still be accessed online. We understand that from the very beginning of this issue, Mr. Fernandez had been trying to draw your attention to the plight of workers who are complaining. Mr. Fernandez acted on legitimate complaints, like any other compassionate individuals would do, to hear and comment on the grievances of victims like them. On the same day the articles were posted, Mr. Fernandez sent emails to your Company asking for you to intervene. However, he has not received any response.

While we understand that legally your Company has the right to take legal action for the protection of your interests we urge you to reconsider this path. Your Company, who has been doing business and providing employment in Malaysia, would rather have more to gain and more contributions should you withdraw the legal action on Mr. Fernandez for the following reasons:

Narrating facts, evidence vs. narrating with malice
The content of Mr. Fernandez posts were purely narration of facts based on the information given to him by the Burmese migrant workers. He acted on behalf of the workers who are foreigners in Malaysian soil to assist them in obtaining remedies. In his posts, he asked questions and did not make declarations, wrote the term 'allegedly' and expressed human emotions of hope that your Company would respond to the workers' plight.

As you are aware, the migrant workers are from Burma. Most of them could not speak the language that is spoken in Malaysia; thus, if these workers could not even speak the language, we certainly could not expect them to know all the legal and complaint mechanisms therein, if there is anything that we could call effective in a real sense that is available in Malaysia.

The role on which Mr. Fernandez took on this case is very important. Where the state mechanisms are not known to victims, he has helped to inform the workers how to deal with it; and where information about complaints of violations are mostly unreported, he blogs on them for other people to intervene on behalf of the workers. We would not have known the case of these workers had it not been from his blog posts.

The complaint of the Burmese workers was only made possible to be put on record, particularly with the Malaysian Human Rights Commission (SUHAKAM), because there are persons who assist in documenting their case. There was someone who could tell the workers the complaint mechanism available in a country where they are foreigners and in a place where they are most vulnerable from exploitation and abuse. In most cases, despite the endemic cases of violations on migrant workers, they prefer not to complain, to keep quiet and to just forget about what had happened to them for practical reasons.

As you are aware, the workers, which you argue are the responsibility of the employment agencies from where you get their service, are from Burma. They came to Malaysia and agreed to terms, often out rightly violating minimum protection to migrant workers, because they needed the job. They needed money to support their families living in Burma, a country where most of their people would prefer leaving than staying. Burma is one of the many countries where employment opportunities could not be found and the people suffer from its own government who do not protect them.

Workers lack protection: inside and outside their country
As you are aware, if citizens coming from developed countries are in trouble in another country, they have their mechanism where their Embassies and Consulates would contact and communicate with their citizens in trouble. They invest human resources, time, money and expertise to protect and to represent the interest of their own citizens regardless of whether they are at home or on foreign soil. Their mechanism of protection and assistance extends beyond the borders of their own country.

But the Burmese migrant workers whom Mr. Fernandez is assisting do not have this protection and assistance mechanism from their own government. A government who could not protect their own citizens in their own soil could not be expected to protect their citizens who are in trouble in foreign countries. These workers were not provided with assistance on their complaints or asked what help they needed, for example legal assistance on labour and immigration proceedings; as should be done by governments.

The wrongful deportation, as Mr. Fernandez had it described in his blog, of the Burmese migrant workers was a statement of fact and reflects the realities of the extreme difficulties these workers would have to deal with their government. How possible it is to deport a person back to his country when it is done in a procedure that was questionable? When a person in foreign countries had nothing but himself anything can be done on him. He has no protection at all. The Burmese workers, too, are themselves aware and know full well that they can never expect their own government to help them remedy their plight.

Implications of the legal action
We understand that any aggrieved party, like your Company, has the legal right to pursue complaints should they feel that their rights are violated. The AHRC is a strong advocate of effective complaints mechanism in Asian countries, particularly helping the victims of human rights violations. Your company has the right to take legal action in the same manner the victims of human rights violations do against officers of the State.

However, there is an enormous difference between upholding the person's or the entities lawful right to complain for its self preservation as against the right to complain to have the basic recognition of a fundamental right. The latter has far tremendous and deep consequences, not only on the persons or entities, but it affects the entire people in the society within their own country once they are suppressed. Needless to say, the reason why the violations of human rights, in its unspeakable terms, goes largely unreported and is not exposed to the public in Malaysia is because of the lack of recognition by their own society and their government to the fundamental principle of human rights: Freedom of Expression.

In Malaysia, laws have been used as a tool to prosecute persons who purely narrate facts, to prosecute and impose rigorous imprisonment on persons who only intend to initiate discourse on the conditions they face in their own country. They are charged, prosecuted and punished for expressing their thoughts and opinions, not because what they say was wrong or malicious but to suppress them from exposing the realities and the human conditions in their own country. In most countries, including Malaysia and Singapore, this type of legal action attacks not only the individual, but any sort of discourse on human rights and democracy.

Thus, we urged your Company not to be part of this concerted effort to suppress the struggle of the Malaysian people for recognition of the principles of Free Speech and Expression in Malaysia. We urged your Company to help them to have this fundamental right recognized not only in books and laws in their own society. By pursuing the legal action on Mr. Fernandez you are already helping in abusing a system of justice.

We urged your Company to uphold the principles of Corporate Responsibility but not abusing the legal process. In this way you can contribute to social progress in countries where you are allowed to do business to protect and uphold the interest of the people.

Yours sincerely,

Wong Kai Shing

Executive Director

Asian Human Rights Commission, Hong Kong

---------

You can also read and respond to this Appeal:

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
http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-033-2011

# # #

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

International Human Rights Day 2010 - Download our pre-print PDF version of the annual reports here.

-----------------------------

Asian Human Rights Commission

#701A Westley Square,

48 Hoi Yuen Road, Kwun Tong, Kowloon,

Hongkong S.A.R.

Tel: +(852) - 2698-6339

Fax: +(852) - 2698-6367

URL: humanrights.asia

twitter/youtube/facebook: humanrightsasia