Charles Hector: Case update and Legal Defence Fund

Charles Hector, human rights defender, is in the midst of a hugely significant legal suit initiated by Asahi Kosei (M) Sdn Bhd. We present the latest updates on the case and welcome contributions to his legal defence fund.

The firm has taken legal action against Hector over his blog posts that highlighted the plight of Burmese migrant workers at the factory of the company.

The fund will be used for all matters connected with the case. Any balance in the fund when the suit is over will be given to Charles Hector for use in his ongoing work with migrant workers.

Payments can be made by bank transfer to:

Persatuan Aliran Kesedaran Negara
Bank account number: 107 246 109 510.
Malayan Banking Berhad, Green Lane branch, Penang, Malaysia.
(If you are outside Malaysia, please include the “SWIFT” code for our bank: MBBEMYKL)

Please also email us at aliran (at) streamyx (dot) com to indicate that it is a donation to Hector’s Legal Defence Fund.

Donations may also be made by cheque or bank draft made payable to Persatuan Aliran Kesedaran Negara. Mail your cheque/bank draft to us at 103, Medan Penaga, 11600 Jelutong, Penang, Malaysia, indicating clearly that it is a donation to the Hector Legal Defence Fund.

Case summary

Charles Hector Fernandez, a human and labour rights lawyer and defender, is being sued for RM10m (US$3.3m or 2.3m euros) for posting on his blog complaints by 31 Burmese migrant workers about working conditions at Asahi Kosei (M) Sdn Bhd.’s factory in Selangor, Malaysia.

The migrant workers have also lodged a report with Suhakam and the Labour Department regarding their working conditions.

The management of Asahi Kosei instituted legal action for defamation against Charles Hector, despite his enquiries with the company about the migrant workers’ complaints (which went unanswered) before posting facts about the issue on his blog (http://charleshector.blogspot.com/).

An injunction, obtained ex parte by the company on 17 February 2011, barring Charles Hector from further discussion of the Burmese migrant workers’ problems at their plant remains in place to date.

The case continues.

Update (23 August 2011)

Court of Appeal at Putrajaya (Civil Appeal No B-02 (NCVC) 1709-2011)

• Charles Hector was represented by lawyers Francis Pereira, Sharimini Thiruselvam
• Asahi Kosei Sdn Bhd was represented by lawyer John Fam, Freeda Santhiago, and Tan Tai Hwa
• Malaysian Bar (Holding a Watching Brief) was represented by Daniel Lo
• Charles Hector was also present

The Court of Appeal (panel of three judges) dismissed Charles Hector’s application to stay the proceedings of the High Court until after the Appeal to the Court of Appeal is heard .The relevant appeal at the Court of Appeal was fixed for hearing on 5 October 2011.

The main argument was that if a stay was not granted, and the trial proceeds at the High Court, then the appeal will be rendered nugatory. Why? Even if the appeal is allowed on 5 October, certainly the 31 workers who would be joined as parties would be prejudiced because the trial had started.

In a stay application, the Court of Appeal is not supposed to look at the merits of the appeal fixed for hearing on 5 October; they are not supposed to consider whether that appeal will be successful or not. The only question being whether stay be granted until after the appeal is heard and disposed off.

Not only did the Court of Appeal dismiss this application, they also ordered Charles Hector to pay RM10000 as cost to the Plaintiff (Asahi Kosei). This was exorbitant considering that even in a full appeal that the court earlier heard, the cost that had to be paid was RM5000, and this was a simple small application which Charles Hector was forced to make when the Court of Appeal fixed the hearing date of the appeal on 5 October.

Lawyers did try to get this appeal to be heard before 24 August 2011 – but the earliest date that Court of Appeal could give was 5 October 2011, and that is what forced the need to make this stay application.

After the hearing, before cost was awarded, the court asked the company’s lawyer how much they wanted, and they asked for RM10000, and then they asked Charles Hector’s lawyer, who said that reasonably it should not be more than RM2000 – and then the court made the order that Charles Hector pay RM10000. One would have expected that the court would have asked the cost be some figure in between – but the Court of Appeal gave the company what they asked for. (Comment:- If the Court of Appeal was free to hear the Stay Application, it could very well have heard the Appeal on 23 August 2011 instead of fixing it for 5 October 2011)

Now, the trial at the High Court in Shah Alam is expected to proceed on 24-26 August.

Notes
Appreciation goes out for the solidarity and presence of civil society representatives, members of the Burmese migrant community, a representative of the Finnish embassy who represented the European Union (EU) and a representative from the Norwegian embassy, who also came on behalf of the European Union on 27 June 2011.Also present was Ms Sudha, from the Observatory on a mission to observe this trial, and also a Human Rights Commissioner. Media were also present in numbers.

Important past dates

February 2011
14 – Charles Hector receives company’s lawyers letter of demand.
14 – Company filed court action, and applies for an ex-parte interlocutory injunction
17 – Hearing of application and court grants ex-parte order
21 – Charles Hector receives order and court documents (becomes aware for the first time that company had filed suit and applied for an order)

March 2011
4 – First hearing date of Company’s inter-parte application for an interlocutory injunction.
1st hearing date for Charles Hector’s application to set aside ex-parte order of 17 February 2011
21- Second hearing date for both applications
30 – Third hearing date for both applications

April 2011
11 – Court allows company’s application for interlocutory injunctions until end of trial, but narrowed it to just the said 31 named migrant workers, and prohibited Charles Hector from communicating via his blog (http://charleshector.blogspot.com/) and tweeting. It also dismissed Charles Hector’s application to set aside judgment of 17 February 2011, ordering costs for the two applications, and also with regard the order of 17 February 2011.

May 2011
25 – Hearing of Charles Hector’s application to join the 31 workers as parties in the suit
June 2011
10 – Court dismisses Charles Hector’s application to join the 31
16 – Charles Hector appeals to the Court of Appeal with regard to the 10 June decision
20 – Charles Hector files stay of proceeding pending appeal application
24 – Court hears the application for stay of proceedings
27 – High Court dismisses stay application – but then grants adjournment of full trial.

August 2011
9 – Court of Appeal fixes appeal to be heard on 5 October (forcing the need to file an application to stay proceedings at the Court of Appeal)
23 – Court of Appeal dismisses stay application and orders Charles Hector to pay costs of RM10000.

Trial dates are now fixed for 24-26 August 2011)

URGENT NEED – We need volunteers who will be able to come and take down notes during the trial, so that those who do not attend will also know what happened in court.

Update (10 June 2011)

Asahi Kosei (M) Sdn Bhd –V- Charles Hector Fernandez (Case No: 22 NCVC – 173 – 2011) came before Judge Lim Yee Lan at the NCVC Court in the Shah Alam Court Complex, Selangor, Malaysia, on 10 June 2011. At this hearing, the court’s decision on the application to join the 31 Burmese migrant workers as co-defendants with Charles Hector was given. The application for joinder was made on 25 May 2011. This hearing was held in chambers as before, when the legal action started.

The Court dismissed the application made by Francis Pereira, Charles Hector’s counsel. Judge Lim Yee Lan’s decision was read out by the Registrar. Charles Hector filed an application to the Court of Appeal to overturn this decision on 16 June 2011. Another application to stop the trial (stay of proceedings) until a decision on the appeal has been reached has also been made by Charles Hector’s lawyers.

The hearing of the application to stay proceedings is set for Friday, 24 June 2011 at the NCVC Court at 9.00am. Pending the outcome of this application, the date for full trial to begin remains at 28-29 June 2011 at the same venue in Shah Alam High Court.

Charles Hector was represented by his lawyers as he was unable to attend this 10 June hearing due to his father’s passing away that morning.

Aliran extends sincere condolences to Charles Hector and his family.

Comment

Why the 31 Burmese migrant Workers should be joined as co-defendants:

Migrant workers – Another principal party to the case

The application to join the 31 Burmese migrant workers who had consulted Charles Hector as co-defendants was made because:

1. The first-hand information received by Charles Hector came from them.
2. They are the alleged victims of human and labour rights violations by the company . This makes them also a principal party in this case.

In view of these two factors, it is appropriate that they should be joined as co-defendants to prove their allegations. The basic principle in evidence is that the ‘accuser’ must prove the truth of his/ her accusations and it is not for the ‘accused’ to prove his innocence or disprove any accusation against himself/herself unless in his/her own defence. This applies to all cases and to any litigant who makes an allegation against the opposing party.

It is expedient for the court to grant an order to allow the 31 migrant workers involved in this case to remain legally in Malaysia for the duration of the trial and possible appeals, even if their work permits expire when litigation is still going on. Otherwise, the 31 Burmese migrant workers remain vulnerable to deportation upon expiry of their permits although they are key parties in this case and the trial should not continue without them. And chances are that this could lead to a miscarriage of justice.

Generally, migrant workers are required to return to their countries of origin when their work permits expire or are cancelled by the immigration authorities upon the request of the employer. Those remaining in the country without valid permits can be arrested, detained and deported. However, exceptions can be made under the circumstances. Courts have the power to make such orders as has been done in other cases of migrant workers whose cases are pending in the Labour Court.

Identity of the ‘actual employer’

The other issue in this case relates to the identity of the ‘actual employer’ of the 31 migrant workers. The Company (Plaintiff) denies that they are the employers of these workers, although these migrant workers are directly under their control and doing work for them during working hours. Instead, Asahi Kosei claims that the company that out-sourced the workers are the workers’ employers.

Charles Hector contends that Asahi Kosei is in fact, the ‘actual employer’ of the 31 Burmese migrant workers. The employment relationship then arises between the workers and the company. The company must be responsible for all the workers working in their factory. Asahi Kosei is therefore the ‘actual employer’ of the 31 Burmese migrant workers.

These are some of the crucial issues on which this case hinges on and the honest and truthful answers to them will affect the credibility of both parties. At this stage, the paramount hope is that Charles Hector Fernandez will get a fair trial in open court for justice to be served.

Wider issue – Denial of freedom of expression

Freedom of expression as a fundamental freedom and basic human right (Article 19 Universal Declaration of Human Rights and Article 10 Malaysian Federal Constitution) is also a central issue in this case.

Charles Hector’s blog has served many readers (over 1 million hits since 2008) as a reliable and educational source of information on human rights issues in Malaysia as well as internationally. The suppression of such a useful resource will be a loss to many human and workers’ rights advocates, defenders and others.

In addition, suppression of Charles Hector as a blogger would be a threat to free expression and information of all online professional and citizen journalists who provide a rich ongoing discussion on a range of issues with views and responses from all corners of the globe. This would be a suppression of information and knowledge that could benefit millions of people who obtain information from the internet daily. Moreover, self-censorship already practised in Malaysia, particularly amongst the mainstream media to maintain their publishing licenses under the Printing Presses and Publications Act, will be even more widely practised.

The human rights aspects of this case so far seems to have been ignored in preference to protection of business interests as the overriding issue. It is hoped that the pending defamation trial will not turn a blind eye to this crucial question of freedom of expression and information accorded to all Malaysian citizens under Article 10 (1) of the Federal Constitution and Article 19 of the Universal Declaration of Human Rights.

All embassies, human rights and migrant advocates, civil society organisations and journalists are invited to come to the NCVC Court in Shah Alam at 9.00am on 24 June 2011 to know the outcome of the application for a stay of proceedings pending the outcome of the appeal to join the 31 migrant workers as co-defendants with Charles Hector.

9 May 2011: Postponement

We were informed this morning that the hearing of Asahi Kosei’s defamation suit against Charles Hector on 13 May has been postponed to 25 May 2011 at 9.00am at the Shah Alam High Court.

11 April 2011, 10.00am Shah Alam High Court

It so happened that fewer people, amongst them, reps from the CSOs were able to make it for this crucial hearing; far fewer were waiting in the gallery today. Two EU Delegation reps and one Belgian Embassy rep were present to monitor the case.

The hearing began a little later than 10.30am as Hector’s counsel, Francis Pereira was delayed by a traffic jam on the way to the Shah Alam High Court. On his arrival, Judge Lim Yee Lan entered the court room and again declared this as a hearing in chambers which excluded those in the public gallery. We were again asked to leave the court room despite this decision being of public interest.

All in the public gallery including the EU and Belgian Embassy monitors left the courtroom. There were four journalists from the Malay press waiting outside, including one from Bernama.

After about an hour, both parties emerged from the courtroom. It was a tense moment for those waiting outside but the result was equally disappointing for Charles Hector, his lawyers and supporters as the judge had ruled in favour of the plaintiff, Asahi Kosei. This meant that the exparte injunction remained in place with unchanged terms and would continue to apply until the end of the defamation trial. Thus a precedent has been set regarding such exparte injunctions and Hector’s gag remains in force.

The company, however, did not appear overjoyed at this initial victory and made their way to the lifts without any public comment to the journalists, who ran after them. Hector’s lawyer was left to make a press statement in which he explained the situation to the press.

The dates set for the defamation trial are 13 May 2011 – to join the Burmese migrant workers involved as co-defendants with Hector. The trial proper is set for 28-29 June 2011.. Other dates are only for case management which are procedural.

Important dates

13 May 2011 – Joinder of Burmese migrant workers as co-defendants.

28-29 June – Defamation trial

Comment

This decision by the High Court is open to appeal in the Court of Appeal, as grounds for appeal exist. It seems unusual that this issue which does not only affect Charles Hector as a blogger and human rights defender, but other rights advocates and bloggers in general including the general public, have been confined to a chambers hearing excluding persons and organisations on whom this court decision will have future repercussions. This decision is a serious public interest matter.

This would mean that in future, any party, particularly those with large financial resources can freely apply for an injunction to gag anyone they feel has offended them or libeled them without need to show concrete evidence of the truth of what has been published about them or that they have been given a chance to correct the information published, in blogs or any other form of publication.

This conclusion is arrived at on the basis that Charles Hector had in fact, given Asahi Kosei the opportunity to reply to his enquiry as to the truth of the information given to him by the 31 Burmese migrant workers who were working for the plaintiff company at that time.

“We call on member of foreign diplomats , trade unions ,civil society , media and justice loving people to continue to monitor and observe the hearings and trial to ensure that Charles Hector will have a fair and just trial before an open, competent and impartial tribunal.

We thank you for your attention and the commitment in this case against a Human rights Defender for highlighting injustices and human rights violations.”
– ‘In Defence of Charles Hector’ Campaign Team

7 April 2011, 2.30pm Shah Alam High Court

Charles Hector’s counsel, Francis Pereira, had applied to Judge Lim Yee Lan to decide on their application to set aside the exparte injunction against Charles Hector that the court had granted to Asahi Kosei (M) Sdn. Bhd. on 17 February 2011. At the last hearing in chambers on 30 March, the application was heard and the Judge informed both sides that she would be giving her decision on whether or not the exparte injunction should be set aside. The decision was to be announced today, 7 April.

This is a crucial decision that may set a precedent for the continuance or setting aside of an exparte injunction in similar future cases.

The lawyers attending were the same counsel for both sides with two other colleagues assisting. The Bar Council, represented by Daniel Lo, held a watching brief

The gallery was reasonably crowded with reps from CSOs and media. Notably, representatives from the European Union Delegation and the Belgian Embassy were also present to monitor the case and hear this significant decision.

After a short wait, we were told that Judge Lim Yee Lan was on medical leave that day. Counsel for both sides including the Bar Council held a conference with the Registrar; a new date was set for judgment to be given, i.e. on Monday, 11 April, at 10.00am in the same court room.

Update (30 March 2011)

The hearing today began at 2.40pm before Judge Lim Yee Lan at the Shah Alam High Court. Lawyers present were Francis Pereira and Sharmini Thiruchelvam for Charles Hector, and John Fam, Freeda Santhiago, and Tan Tai Hwa for Asahi Kosei (Malaysia) (the Company), and Andrew Khoo and Daniel Lo holding a watching brief for the Bar Council.

There were about nine people sitting in the gallery who were representatives of civil society organisations. To our surprise, the judge decided to clear the gallery soon after she arrived stating that the hearing was one “in chambers”and not in open court, although it was in the court room. The reason for this, later learned, was that her ‘chambers’ were too small to accommodate all the lawyers present, including those from the Bar Council. Lawyers for neither party in the case had raised any objection to the presence of the civil society representatives in the gallery.

Nevertheless, on the judge’s insistence, we had to leave the court room. For the duration of the hearing that ended at 4.45pm, the NGO and Company reps who came a little later waited outside the court room in anticipation of the outcome of proceedings at the end of the day.

The time spent outside the court room, however, was not wasted, as civil society reps busied themselves with getting other relevant information in connection with the issues involved in the case. On this occasion, a journalist from the Chinese daily Sin Chew also turned up but remained outside the court room throughout the hearing.

Implications

The defamation suit against Charles Hector for voicing out problems faced by migrant workers seems to have acquired an increased significance since Asahi Kosei, via their lawyers, went so far as to reportedly threaten two Japanese unions for supporting Charles Hector and the migrant workers.

But concerned NGOs for whom these proceedings signify a potential threat to human rights and fundamental freedoms as well as to their role as rights advocates, defenders and activists remain in avid discussion of the implications of this case and its possible outcomes. In a recent development, the company had threatened to cite Charles Hector for contempt of court for updates of his case posted on another blogsite publicising the cause.

Although a company has a constitutional (Art 8 Federal Constitution) as well as a universal right to equal treatment before the law (Art.7 UDHR), as do all persons residing within Malaysia’s borders, it still has an obligation to respect the human rights of others without discrimination. Where rights are claimed, duties apply.

However, the steps Asahi Kosei(Malaysia) has taken – attempting to suppress Charles Hector’s right to freedom of expression and information, and discussion and debate of this issue by other parties in other forums – exhibit a complete disrespect and disregard for universal human rights and values, human dignity, fairness and justice.

In view of the path Asahi Kosei (Malaysia) has chosen to take in dealing with this issue, which has far reaching implications on future advocacy by civil society organisations, rights defenders, advocates, activists and whistleblowers across the globe, it begs the question as to whether the company will threaten to sue the over 100 civil society organisations, individual bloggers and activists, trade unions and other concerned parties from around the globe who have endorsed two public statements, made their own press statements or supported Charles Hector’s cause in one way or another.

Civil society, rights defenders and advocates have a large stake in this issue and must stand together in support of the fundamental freedom of expression and information to act without fear or favour for the elimination of human rights violations and for the protection of the defenceless and voiceless in the international community.

It is for Asahi Kosei (Malaysia) to weigh the wisdom of continuing to shore up its ego. The company may still ‘save its face’ by honourably dropping the demand of RM10 million and the defamation case against Charles Hector and opting for positive action by peaceful and amiable engagement with workers under its control and for whom they have an overall responsibility.

The next hearing date for Charles Hector’s case is on Thursday, 7 April 2011 in the Shah Alam High Court at 2.30pm. This hearing is only for the judge’s decision on the injunction against Charles Hector; so it may not take so long to know the outcome!

Update (21 March 2011)

Asahi Kosei Sdn Bhd –V- Charles Hector Fernandez (Case No: 22 NCVC – 173 – 2011) came before Judge Lim Yee Lan at the Shah Alam, Selangor, Malaysia NCVC Court at the Shah Alam Court Complex at about 2.30pm, 21 March 2011.

Charles Hector (Defendant) was represented by lawyers Francis Pereira (with Taneswaran, pupil in Chambers)

Asahi Kosei Sdn Bhd (Plaintiff) was represented by lawyer John Fam (counsel), Freeda Santhiago, and Tan Tai Hwa

Malaysian Bar (Watching Brief) represented by Andrew Khoo

The Judge called both parties to her chambers to discuss the case but asked Mr Andrew Khoo (Bar Council) to leave. We do not think that this was right, as the Malaysian Bar holds a Watching Brief, and Andrew should have been allowed to be present at these proceedings.

The case hearing today was on the injunction* obtained by the Company (Asahi Kosei Sdn Bhd) on 17 February 2011. Charles Hector had applied to have this injunction cancelled. This was an inter-partes hearing involving both opposing parties. This hearing took place in the judge’s chambers.

It was disclosed that the court wished to begin the defamation suit as soon as possible without need to decide on Charles Hector’s application to set aside the exparte injunction obtained by the Company on 17 February 2011, in order to save time.

But the suggstion was challenged by Charles Hector’s lawyers and a date for hearing the application to set aside the injunction was set for 30 March 2011 at 2.30pm at the same venue.

The Court’s decision of 17 February 2011 to grant a “holding over order”* remains in place until then. The judge went on to set dates for the defamation suit which are 19-21 April. Both sides then handed over outlines of their submissions (arguments) to the judge as well as to the opposing side.

Holding over order*

This order still bars Hector from publicly discussing this case even though it is confined to talking about the issue concerning the named 31 workers in Charles Hector’s affidavit (statement made on oath), either through his blog (Charles Hector blog or via twitter. Despite this watering down of the company’s initial injunction, Charles Hector’s right to freedom of expression is still restricted.

Why the Company’s injunction should be withdrawn:

• The company’s application for an injunction against Charles Hector should not have been granted by the court (on 17 February 2011) in the first place, as the defendant (Charles Hector) was not aware that legal action was being taken against him and was not given the chance to participate in the initial exparte (application by one side only) hearing of this application on 17 February 2011.
• The injunction granted wrongly orders Charles Hector to pay the company’s costs for the application.
• In applying for the order, the company has a duty to disclose all information and facts, which they apparently did not do. There is a possibility that the information given to the court in that application was not entirely true and was likely to mislead the court into granting the said order.
• Charles Hector wants the order cancelled as it justifies the plaintiff’s action against him and makes him liable to pay costs. In applications made without the knowledge or the participation of the opposing party, costs should normally be by paid by the applicant – in this case, the company/plaintiff
• As for the company’s application for a new order (interim injunction) at this inter-parte hearing, Charles Hector’s lawyers are of the opinion that this new order should not be granted particularly in a defamation case where the defence is one of justification and fair comment. Courts usually will not grant such interim injunctions which violate universally guaranteed freedom of expression.
• Charles Hector’s lawyers disagreed with the suggestion to maintain the exparte injunction granted to the Company on 17 February 2011 as it would have been very prejudicial to him.

The court did not proceed with the full hearings today as there was another case scheduled on the same date. The hearing, which was to begin at 2.00pm, started at only around 2.30pm due to the company’s lawyers’ late arrival in court.

This is the second postponement of the hearing, which is a disappointing outcome for Charles Hector, his lawyers and those who went to support him. The hearing was postponed from 4 March to 21 March and now to 30 March 2011.

Charles Hector’s right to freely communicate and highlight injustices through his blog and twitter continue to be violated. He has also been subjected to a broader gag order that prevents all forms of communications on matters concerning Burmese migrant workers and Asahi Kosei since 21 February 2011, when the 17 February order was delivered to him.

The company’s delaying tactics

Charles Hector’s lawyers disclosed that his defence and counter-claim have already been filed; he is seeking declarations, among other things, that when a company receives workers supplied to them by ‘outsourcing’ agents, the receiving company becomes their employer. The company then has duties/obligations of an employer to these workers.

The company has also filed their defence to the counter claim and a reply to Charles Hector’s defence but has not been efficient in keeping its undertakings on dates they specified. These appear to be delaying tactics by the company as revealed by their actions below.

At the 4 March hearing, the company’s lawyers said they would file and serve their affidavits in Reply in three days – but this was done only on 14 March 2011 afternoon. This caused Charles Hector to rush to file his affidavit in reply on 17 March 2011 to prevent a postponement of the hearing fixed for 21 March 2011.

The company also filed another two affidavits on the morning of 21 March 2011 – and to avoid delay, Charles Hector’s lawyers were ready to proceed with the hearing on 21 March 2011. Unfortunately, the court was not ready to proceed and postponed the case to 30 March 2011. Charles Hector’s affidavit in reply to the two new affidavits would be filed and served latest by Friday, 25 March 2011.

We are very concerned that the 31 workers may hurriedly be sent back to Burma, and this will be prejudicial to Charles Hector’s case as, they are key witnesses who will be prevented from giving crucial evidence in this case. Of the 31 Burmese migrant workers, Asahi Kosei has allowed only 26 of them to return to work in their factory. Two remain in hiding, afraid that if detained they would be deported to Burma. One may have already been repatriated to Burma. Nothing is known of another two.

Charles Hector’s lawyers applied to court to ask Asahi Kosei to give an undertaking that these workers would not be deported or ‘disappeared’ before completion of the trial. The company denies the capacity to give this undertaking. The court suggested that the ‘outsourcing agent’ would be able to give that assurance and asked Charles Hector’s lawyers to make the necessary application for this.

It may be necessary for Charles Hector’s lawyers to make more applications to the court to ensure that these 31 workers remain in Malaysia when the trial begins. All we can do is hope that they will be brave enough to tell the truth, and hopefully justice will prevail.

We wish to thank representatives from civil society organisations, members of the Burmese migrant community, and the Bar Council who were present today. We deeply appreciate and value your continued support and show of solidarity. Thank you also for the many well wishes we received from friends and colleagues in the struggle for human rights and justice. We are happy to inform you that, so far, we have received two international responses to our appeal for donations to the “Charles Hector Legal Defence Fund” and hope for more donations that are badly needed to sustain the action and the campaign to protect labour and human rights in Malaysia.

You can read more and follow developments and updates on Charles Hector’s case at http://indefenceofcharleshector.blogspot.com/

* Injunction – This is a temporary order granted by the court usually to prevent a party from doing something until the end of the full trial. In this application, the court does not go into the full merits of the case or make any final decision on the case. Even if the court grants/disallows the company’s application, it does not mean that all is lost for Charles Hector and/or the company. The important decision is the final decision which will be made after the full trial, after the court has listened to witnesses, considered all documents, heard lawyer’s submissions and applied the law. Of course, if parties are not happy, an appeal to the Court of Appeal can be made.

Important past dates

February 2011
14 – Charles Hector receives company’s lawyer’s letter of demand
14 – Company files court action and applies for an ex-parte interlocutory injunction
17 – Hearing of application; court grants ex-parte order
21 – Charles Hector receives order and court documents (becomes aware for the first
time that company had filed suit and applied for an order)

March 2011
4 – First hearing date of company’s inter-parte application for an interlocutory
injunction. First hearing date for Charles Hector’s application to set aside ex-parte order of 17 February 2011
21 – Second hearing date for both applications

Next hearing will be on 30 March 2011 at 2.30 pm

Update (4 March 2011)

The case on 4 March 2011 was fixed for the inter-parte (between two parties) hearing with regard to the ex-parte (one party – the company) injunction obtained on 17 February 2011, and also the hearing of Charles Hector’s application to cancel the said ex-parte (company’s) injunction.

The injunction was not cancelled but was restricted to stopping discussion of the case on Hector’s blog and over the social network, Twitter.

Hector has also put in his defence and made a counter claim for a declaration that employers who acquire workers from an out-sourcing company are to treat these workers as the receiving company’s own workers and have the same obligations towards the workers as if they were workers employed directly by them (the receiving company).

The Malaysian Bar Council also sent lawyers to hold a watching brief for this case.

A warm thank you to all the civil societies, human rights groups, the Bar Council of Malaysia, and Burmese community that sent reps to the hearing in support of the Burmese workers and Charles Hector. Your support is much needed and deeply appreciated.

The next hearing date for Charles Hector’s case will be on 21 March 2011 at 2.00pm in the High Court at Shah Alam, Selangor, Malaysia.

A gentle reminder : Please donate to Charles Hector’s Legal Defence Fund as money is badly needed for this important case that will affect the right to freedom of expression to advocate, protect and defend human and workers rights in future and workers rights to redress through the legal system in Malaysia.

Update (February 2011)

Dear Friends,

An injunction was taken out by Asahi Kosei’s lawyers on 17 February 2011, stopping Charles Hector from making further public statements in his blog or other media about the legal action being taken against him and the migrant workers’ problems with the company.

The company had also filed a defamation action against Hector on 14 February – a few days before the expiry of the seven-day deadline that firm had given him to respond, as stated in its Letter of Demand.

The Hearing date for this case will be on 4 March 2011 at Shah Alam High court  Suit No  22 NCVC-173-2011 at 8.30am. Please attend the trial, if possible, to support Hector and the workers’ cause.

Thank you for your support.

In solidarity,
Aliran

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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