Civil society groups around the world have been in touch with Japanese embassies in their respective countries to express concern about a defamation lawsuit by a Japanese multinational corporation against a Malaysian human rights defender.
First day of the global week of action:
- International migrants alliance (IMA) sent their letter to Consulate General of Japan in Hong Kong also coordinating with their member and network organizations in Hong Kong to send their petition letters.
- Health Equity Initiatives (HEI) sent their letter to Embassy of Japan in Malaysia
- Australian manufacturing workers’ union (AMWU) sent their letter to consulate general of Japan in Sydney
- Center on research on multinational cooperation (SOMO)together with clean clothes campaign ( CCC), MAKEITFAIR and Good Electronics sent their letter to Japanese embassy in Amsterdam
- FAIR TRADE CENTRE sent their letter to Japanese embassy in Stockholm
- Human Rights Watch sent the letter to Embassy of Japan and Permanent Representative of Japan to the United Nations in the United States of America
- Migrant Forum in Asia (MFA) called for their members and alliance to take part in global campaign
- Finnish makeITfair project partners Finnwatch and Pro Ethical Trade sent the letter to the Embassy of Japan in Finland
- Asian Human Rights Commisison ( AHRC) sent their letter to Consul-General of Japan in Hong Kong
- Legal Support for Women and Children( LSCW) together with other Mekong Migration Network member in Cambodia (ADHOC,CWCC,CWPD) sent their letter to Japanese embassy in Cambodia.
- People Solidaries on behalf of Clean Clothes Campaign (CCC) and Good Electronic network partner in France sent their letter to Ambassador of Japan in France
- Asian migrant Centre (AMC) sent their letter to Consulate-General of Japan in Hong Kong,
- International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW) sent their letter to The Japanese Ambassador in Washington D.C.
- Migrant Assistance Program, Chiang Mai, Thailand together with Burma Relief Centre (BRC),Estelle Cohenny, Foundation for Education and Development (FED), Geoff Thant, Hall Andy, IPSR, Mahidol University, Htoo Chit, Director, Foundation for the Health and Knowledge of Ethnic Labour,Khin Ohmar, Coordinator, Burma Partnership,Lanna Action for Burma (LAB),Omsin Boonlert,Moe Swe, Yaung Chi Oo Workers Association (YCWOA), Naing Aung, Secretary General, Forum for Democracy in Burma, Reena Arora, Sai Myint Thu, Secretary, Network for Democracy and Development,Studio Xang Art for Migrant Children met and submitted their letter to Vice Consul of Consulate of Japan, Chiang Mai. (Details at http://indefenceofcharleshector.blogspot.com/2011/08/chiangmai-hr-defender-meet-and-hand.html)
- In Bangkok , The Action Network for Migrants (ANM, Thailand) together with Try Arm (Self-Managed Worker Cooperative), Thai labour campaign, Asia Pacific Forum on Women, Law and Development ( APWLD), Shan women action network ( SWAN), Burmese association in Thailand (BAT), students and other activists, trade union read the letter and submitted the letter of concern to Mr Yukihiko Kaneko, First Secretary, Embassy of Japan in Thailand.
- It has been reported that Malaysian Bar have met and discussed their concerns with the Embassy of Japan in Malaysia
- Aliran sent the letter of concern to the Embassy of Japan in Malaysia both in KL and consular in Penang
- National Union of Transport Equipment and Allied Industries workers , Malaysia affiliate of International Metalworkers’ Federation (IMF)sent the letter of concerns to Japan embassy in Malaysia
- Representative from Campagne Vêtements Propres – (Clean Clothes Campaign – French-Speaking Belgium)met with the Japanese embassy in Brussels, Belgium
Other international action and solidarity:
- The International Metalworkers’ Federation (IMF), which represents the collective interests of 25 million metalworkers from more than 200 unions in 100 countries, sent the letter to Mr Takeshi Nishitsuji President of Asahi Kosei (M) Sdn Bhd called on Asahi Kosei to drop its defamation lawsuit, including its astronomical compensation claim, against human rights defender Charles Hector. You can view the letter at http://www.sweatsoap.com/component/docman/doc_details/41-imf-calls-on-asahi-kosei-to-drop-lawsuit-against-charles-hector
- The International Trade Union Confederation (ITUC) calls on Asahi kosei; Must Drop Defamation Charges Against Human Rights Defender and Respect the Rights of Migrant Workers see here http://www.ituc-csi.org/malaysia-japanese-firm-must-drop.html
- In Hong Kong, the ATNC Monitoring Network, mainly members from Labour and China and Globalization Monitor, and SACOM went to Hitachi’s office for protest
An Assistant Manager at Hitachi reiterated that it was not an issue in Hong Kong and refused to respond. See more here http://indefenceofcharleshector.blogspot.com/
The In Defence of Charles Hector campaign team is calling for a global week of action on 15-19 August 2011 during which groups around the world could request meetings with Japanese embassies to express concern about a Japanese firm’s lawsuit against the activist-lawyer.
Several court hearings in the US$3.2 million defamation case against human rights defender and activist Charles Hector by Asahi Kosei have taken place in the last five months. The case was filed on 14 February 2011 and is now fixed for full trial on 24-26 August 2011.
In addition to the various petitions against the company and its buyers, the Asian Human Rights Commission (AHRC), Forum-Asia, Frontline, Article 19, the Observatory for the Protection of Human Rights Defenders, the World Organisation Against Torture, FIDH, Human Rights Watch and many other civil society groups have also expressed concern.
Representatives from the European Union have been attending and monitoring the legal proceedings so far. Representatives of the Norwegian, Royal Belgium and Danish embassies in Malaysia have also been present at hearings. Thirty-one MPs signed an early day motion in the UK Parliament regarding the action against Hector. Note that the workers’ complaints have not yet been resolved by any authorities despite the workers having lodged complaints with the Labour Department and the Human Rights Commission of Malaysia since February 2011.
Another two weeks to go for full trail, but Asahi Kosei still refuses to drop the case and none of the companies involved have done the right thing.
On 12 February 2011, Charles Hector sent a letter together with the public statement issued by 77 organizations concerned about this case, and but there has been no response from the Japanese government so far.
We are now calling for a global week of action on 15-19 August 2011 for trade unions, migrant associations, Burma support groups, workers/human rights and campaign organisations and justice-loving people to seek a meeting with Japanese embassies in their respective countries. The aim is to express concern and request these embassies to do everything possible to get Asahi Kosei to immediately withdraw the lawsuit against Charles Hector and to ensure the immediate reinstatement, with full rights and benefits, of all the affected Burmese workers. Five workers have not been taken back to work at the Asahi Kosei factory since February.
Below is a proposed letter to be sent to the respective Japanese embassies seeking a meeting. Please do adapt or make changes accordingly. Further below is a background of the alleged violations at Asahi Kosei and its retaliatory lawsuit.
Do lets us know if you can join the global action and please send us a copy of the letter you sent to the Japanese embassy as well as information about the outcome and photos of the meeting. It would be great if you could media attention in your country!
Let’s work together again to put pressure on Asahi Kosei to drop the case against Human Rights Defender Charles Hector and ensure all affected workers get justice!
In Defence of Charles Hector campaign team
To contact us please send email to hrdef.chector (at) gmail (d0t) com
Visit the website
_ August 2011
Your Excellency _____________
Asahi Kosei’s US$3.2m legal suit against Malaysian human rights defender Charles Hector
We write to express our deep and continuing concern about the US$3.2m libel suit filed by Asahi Kosei (M) Sdn Bhd against Mr Charles Hector, a human rights activist, lawyer and blogger.
Hector had highlighted complaints about human rights and workers’ rights violations by 31 Burmese workers who were working at Asahi Kosei.
The Japanese government is not a party to this civil suit, but we are concerned over the ‘silence’ and ‘inaction’ on the part of the government of Japan, an OECD member. This silence will be perceived as implied consent and support for this attack by a Japanese company against human rights defenders, in this case Charles Hector, for highlighting human rights violations.
We would like to reiterate the Malaysian Bar’s call made on 21 February 2011, when it called on “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”.
We also call on the Japanese 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 Recognised Human Rights and Fundamental Freedoms, commonly 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.
Therefore we would like to respectfully seek a meeting with your Excellency to discuss further our concerns on (any day between 15-19) August as the full trial is now scheduled for 24-26 August.
Background of alleged violations at Asahi Kosei and retaliatory lawsuit
Despite being notified about serious developments affecting workers at Asahi Kosei, the company took no action to resolve them. Instead, Asahi Kosei has filed a US$3m defamation suit against lawyer and human rights defender Charles Hector in retaliation for notifying the company and the public about ongoing concerns of serious violations of workers’ rights.
Charles Hector is a Malaysian lawyer. He has previously been a member of the Malaysian Bar Council. For many years, Hector has represented workers and migrants in various cases. Hector runs a blog, which details many of the abuses that migrant workers are facing, and he advocates for legal changes to improve the situation of the several million migrant workers in Malaysia.
After having received the complaint from the workers, Hector proceeded to communicate with Asahi Kosei on 8-9 February 2011 to seek the clarification about alleged threats of terminations and deportations of workers. He urged the company to ensure that the Burmese workers’ rights were respected. When he received no reply from the company, Hector began to document the allegations on his blog and advocate for protection of the 31 workers in general and the workers facing immediate deportation in particular. It had been previously documented that when migrant workers begin to exercise their rights, they face immediate deportation back to their country of origin. For instance, three workers at Sinometal were sent back to Burma on 19 January 2011 after they had protested againt their working conditions.
The source of the information was the affected migrant workers from Burma. Before any posting, an email was sent to Asahi Kosei, giving the company the opportunity to respond to the allegations of the workers, which contained also the 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 on 14 February 2011. The company’s main argument is that the workers are not their workers but are workers supplied by an ‘outsourcing agent’, and as such they are not responsible for the workers. Asahi Kosei said that “all payments of salaries were duly paid to the said agent as per their agreement”. The workers, they said were not under their direct payroll. Asahi Kosei tries to avoid an employment relationship with workers working at their factories under their control and supervision, using the tools of the factory producing the products of the factory. They claim they have no responsibility to these workers, even when information that these worker’s rights are being violated comes to their notice.
This avoidance of employment relationships and responsibility to workers who are working in the factory has been frowned upon by human rights and workers’ rights advocates. Today, even the International Labour Organisations(ILO) holds a similar position and has come out with Guidelines and Recommendations towards ending such avoidance of an employment relationship by some companies. (See THE EMPLOYMENT RELATIONSHIP: An annotated guide to ILO Recommendation No. 198 (http://www.ilo.org/public/libdoc/ilo/2007/107B09_141_engl.pdf), the said ILO Recommendation No. 198 is also annexed to this document]
Note also that there have been discussions, government studies and even Japanese Court decisions on the subject, and in brief the court will actually look at the facts of the case – not just the words of any contract. The Japanese courts have judged that there exists an employment relationship when the actual work circumstance lends itself to an employment relationship regardless of the provisions of the contract (SAGA TV Case: Fukuoka High Court Judgment 7 July 1983, Hanrei Jiho No.1084, p.126; SEN-EI Case: Saga District Court Takeo Branch Judgment 28 March 1997, Rodo Hanrei No.719, p.38).
Who actually hands over the salary is also less important compared to who you really work for, where you work producing whose products, and under whose control and supervision. All these factors, when considered, clearly show that Asahi Kosei is indeed the employer and is responsible for the 31 migrant workers. When informed about violations affecting these workers, the proper cause of action was to investigate and respond accordingly to ensure that injustice and violations end and the workers get justice, not going after the Human Rights Defender that highlighted these violations.
It must also be pointed out that in Malaysia, these practices are against current law. Malaysian law does not allow for ‘contractors of labour’ who can supply to principals like Asahi Kosei. Workers could be obtained through private employment agencies, created and regulated by the Private Employment Agencies Act, but sadly these ‘outsourcing agents’ from whom Asahi Kosei got these workers are not private employment agencies. Hence, the only thing that could be are really agents of Asahi Kosei – and as such the Asahi Kosei is certainly liable for the actions of their agents, and all the 31 migrant workers are employees of Asahi Kosei.
In Malaysia, for migrant workers, the employer’s responsibility extends beyond working hours, to include all the time the workers are in Malaysia. They also have to be responsible for board and lodging, including the general security and welfare of these workers.
Some of the complaints/grievances of these 31 workers, and the anti-justice responses that have visited them, which have been highlighted, include:-
a) Non-payment of wages, as what was agreed when the migrant workers agreed to come to Malaysia to work for Asahi Kosei;
b) Wrongful deduction from wages, where deductions permissible are all stated in law, and these wrongful deductions include RM50 for accommodation, RM50 penalty for a day’s absence (when they already do not get paid wages for the day, where normal wages is about RM20), and several other deductions;
c) Forcibly trying to immediately send back two of the migrant workers on 7 February 2011 to Burma, without even trying to resolve matters or using available legal avenues of access of justice;
d) Depriving the workers who raised grievances of cooking utensils, electricity and even accommodation,
e) Taking away of another two workers to be processed to be sent back to Burma on or about 9 February and 10 February 2011, when they refused to agree to the new ‘agreement’. These two workers did go to the National Human Rights Commission and Labour Department to lodge complaints on behalf of the 31.
We would also like to refer to the code of conduct of the Electronics Industry Citizenship Coalition EICC, which includes a call “to uphold the human rights of workers and to treat them with dignity”. It also refers to the Universal Declaration of Human Rights and International Labour Standards. In particular, we would like to stress that it has become internationally recognised that a company is responsible for the workers who work on its production sites, even if they are not directly employed but hired through an employment agency.
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 various well known Japanese brands (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) and international brands.
Most (if not all), including Hitachi as an example, have codes of conduct that imposes obligations to ensure the protection of human rights and workers’ rights, including anti-discrimination not just with regard to workers in the Asahi Kosei factory – but also workers in companies that supply Asahi Kosei the requirements for what is manufactured and produced in Asahi Kosei.
The most recent has been the Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework by the Special Representative of the UN Secretary- General. This framework touches on the issue of human rights and transnational corporations and other business enterprises and was accepted by the Human Rights Council. It clearly recognises human rights defenders and their rights. Hence, the commencement and the continuation of a legal action against a human rights defender by this Japanese company is deplorable and contrary to universal human rights standards and is certainly against the promotion and protection of rights.
It is sad that some companies with declared codes of conduct and standards are seen to be hypocrites by reason of their continued association with companies where workers’ and human rights have been violated. After five months, human rights defender Charles Hector is still facing a trial, which is now fixed for full trial at the end of August 2011.
It must be pointed out that the worst violation by Asahi Kosei has been the threatening, commencing and still continuing legal action claiming US$3.2m against human rights defender Charles Hector. This has resulted in many calls from various quarters for the immediate withdrawal of the suit and for Asahi Kosei to focus its attention on trying to ensure justice for the 31 migrant workers.
Asian Human Rights Commission (AHRC), Forum-Asia ,Frontline, Article 19, the Observatory for the Protection of Human Rights Defenders, World Organisation Against Torture, FIDH, Human Rights Watch and many other civil society groups have already issued public statements, urgent appeals and petitions. There have also been other petitions against the company and its buyers.
The European Union is concerned, and has been attending and monitoring the case since February 2011. Representatives of the Norwegian, Royal Belgium and Danish embassies in Malaysia have also been monitoring and attending the hearings. Thirty one MP signed as Early Day motion 1800 in the UK Parliament on the issue.
We have been informed that Charles Hector sent a letter on 12 February 2011 to the Japanese government informing them about the rights violations against the 31 migrant workers in Asahi Kosei, together with a joint statement of concern from 77 organisations around the world. This letter was sent to the Japanese embassy in Kuala Lumpur, Malaysia, but to date there has been no response from the government of Japan.
We believe that the protection of human and worker rights is important. Human rights defenders play a most important role towards this objective. Most essential is their role, ability and right to be able to highlight situations of injustice and rights violations, without fear or favour. This enables others to act to end violations and injustice as soon as possible.
Legal action against human rights defenders does nothing to resolve matters but only serves to deter future disclosures of rights violations to the detriment of human and workers’ rights. In this case, where the victims are 31 foreign workers, who are not only prejudiced by language. The fact is they cannot and will not be able to access avenues of justice if they are made ‘illegal’ by errant employers or caused to be sent out of the jurisdiction of Malaysian law, tribunals, courts and other avenues of justice prematurely. The importance of human rights defenders highlighting their plight speedily becomes all the more important. In this case, there were attempts to send at least four of the workers back to Burma speedily when they raised grievances. Since then, these four and another migrant worker have not been taken back as workers in Asahi Kosei, and they certainly are at great risk.
This case against a human rights defender is the first case involving a private corporation, not a state body or a state-linked company. It is a worrying trend as it will affect the rights/duties/obligations of not just Charles Hector but also other human rights defenders in Malaysia, the region and the world.