Joint statement by Human Rights Now and FORUM-ASIA

23 May 2011

Stop legal action against Malaysian human rights defender for highlighting rights of migrant workers

The Asian Forum for Human Rights and Development (FORUM-ASIA) and Human Rights Now express their great concern regarding the case of Mr. Charles Hector Fernandez, a Malaysian human rights lawyer, activist and blogger. We were informed that Asahi Kosei (M) Sdn. Bhd., subsidiary of Asahi Kosei Japan Co. Ltd., filed a defamation law suit against Mr. Hector for raising concerns on his blog about alleged human rights and labour rights violations of 31 Burmese migrant workers.

On 8 and 9 February 2011, Mr. Hector uploaded several posts to his blog http://charleshector.blogspot.com/ on the grievances raised by the 31 Burmese workers. These workers were supplied by an outsourcing agent to work at Asahi Kosei (M) Sdn. Bhd., which is based in Malaysia. The workers alleged that their wages were unlawfully deducted and monetary penalties were made for absences from work. When the workers sought for compensation and fair treatment, they were threatened with termination of employment and possible deportation back to Burma. The workers are paid by an outsourcing agent, even though Malaysian Deputy Prime Minister Tan Sri Muhyiddin Yassin stated in 2010 that "employers ... should be responsible for their foreign workers. Outsourcing companies are only responsible for bringing them in. After that, employers must assume full responsibility."

Before posting about the workers' complaints on his blog, Mr. Hector sent an email to Asahi Kosei (M) Sdn. Bhd. for clarification and verification. The email explicitly requested that "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 Mr. Hector went ahead and posted the complaints of the Burmese migrant workers on his blog, advocating for the protection of the 31 workers in general and those workers who were facing immediate deportation in particular.

On 14 February 2011, Mr. Hector received a letter from the law firm, T.S Teoh & Partners, on behalf of the Asahi Kosei (M) Sdn. Bhd. in which they accused him of having "committed defamation" for publishing "untrue allegations" about Asahi Kosei (M) Sdn. Bhd. The company demanded Mr. Hector to pay 10 million Malaysian ringgit (3,309,600 USD) within seven days, to immediately withdraw the posts and to write an apology which should be published on his blog within 24 hours, and appear in all major English newspapers to be circulated nationwide within three days.

A week later, on 21 February 2011, Mr. Hector received an ex-parte court order obtained by Asahi Kosei's lawyers, requesting Mr. Hector to remove all the said blog posts immediately and to stop from making further public statements on his blog or other media about the legal action being taken against him and the plight of Burmese migrant workers.  

On 11 April 2011, the court affirmed, after three hearings, a previous narrow order which restricted Charles Hector from communicating through his blog and Twitter account on the case of the 31 Burmese migrant workers until the end of the trial. The next hearing is scheduled on 25 May 2011 and the trial is set for 28 and 29 June 2011.

We are gravely concerned with the response of Asahi Kosei (M) Sdn. Bhd. to file a defamation suit against Charles Hector instead of replying to his email to clarify the matter and investigating the allegations of the workers.

On 12 March 2011, the Malaysian Bar unanimously approved a motion in support of Mr. Hector. In their motion, the Bar had emphasized: "public interest also places an obligation on any person that knows of any human rights violations to not just stand by but to take the necessary steps to see that such violations end, and to ensure that the victims do get justice. This principle is also recognized, and is also evident in many laws in Malaysia, including the Whistle Blowers Protection Act 2010, the Human Rights Commission of Malaysia Act 1999, and the Criminal Procedure Code."

We believe that as a human rights defender, Mr. Charles 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, which has sent their recommendations to the Labour Department about the case.

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. The legal action against Mr. Hector threatens free speech in Malaysia, by sending the wrong message to other human rights defenders, organizations and 'whistle blowers' who report such violations and might cause them to refrain from exposing abuses committed by businesses in Malaysia.

Moreover, Article 6 of the Declaration on Human Rights Defenders recognizes that "everyone has the right, individually and in association with others ... [to] freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms...". The government of Malaysia has the corresponding obligation to take all necessary measures to protect defenders like Mr. Charles Hector against any retaliation as a consequence of his legitimate right to free speech and use it to expose human rights violations.

We strongly call on Asahi Kosei (M) Sdn. Bhd. and Asahi Kosei Japan Co. Ltd. to

1.      Withdraw the legal action against Mr. Charles Hector immediately and unconditionally;

2.      Launch immediate investigations into the authenticity of the allegations that Charles Hector has brought to light;

3.      Act promptly to prevent any human rights abuse against migrant workers employed by the company. Asahi Kosei has the responsibility to ensure that all legally guaranteed worker's rights and benefits are enjoyed equally by all workers of Asahi Kosei.

We also call on the Malaysian and Japanese Government to

1.      Ensure that Charles Hector as a human rights defender can freely conduct his legitimate activities that promote and protect human rights, in accordance with the UN Declaration on Human Rights Defenders;

2.      Act against attempts by employers to evade their responsibility to protect their workers' rights under the guise of employment relationship.

For further information please contact

Ms. Cecile Gaa of the Human Rights Defenders Department, Asian Forum for Human Rights and Development (FORUM-ASIA), email:  hrd@forum-asia.org Tel. no. + 66 26532940 ext. 402

Ms. Kazuko Ito, Secretary General, Human Rights Now, email: office@hrn.or.jp