Myanmar workers’ problems: Stop intimidation of activist blogger

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Over 70 civil society groups have issued a joint statement  calling on a Japanese multinational corporation to stop intimidating activist-blogger Charles Hector, who had highlighted the plight of Myanmar migrant workers in the company’s plant in Malaysia. The Asian Human Rights Commission has separately expressed its outrage.

We, the undersigned civil society groups, are gravely concerned over the demands and threat of legal action for defamation against human rights lawyer, activist and blogger Charles Hector by Asahi Kosei (M) Sdn. Bhd. According to a letter to Hector from the firm’s lawyers dated 11 February 2011, the company is demanding RM10 million from him within seven days as damages for libel. Failing which, he is being threatened with a defamation suit.

The company was reacting to postings in Hector’s blog that highlighted the plight of 31 Burmese migrant workers in Asahi Kosei who raised their grievances to their employer, and the reactions thereafter that included threats, termination and even attempted deportation back to Burma, Asahi Kosei is also demanding from Hector the removal of the blog postings and a public apology to the company to be published on his blog and in all major national English newspapers.

According to the joint media statement titled “Asahi Kosei (M) Sdn. Bhd must respect Human Rights and Workers’ Rights. Reinstate Thiha Soe and Aung San without Loss of Benefits” which 82 migration and human rights organisations worldwide have endorsed (as at 16 February 2011), the Myanmar workers had made many complaints regarding non-payment of agreed wages and unlawful deductions from their wages as well as alterations of terms and conditions of work.

The workers, who confirmed the facts of their complaints, also alleged that they had been harassed by management “agents” (employees) and forced to agree to unfavourable terms and conditions including paying a penalty of RM50 per day of absence (RM50 for two days under new contract terms), which was far more than their basic pay of RM20 per day (RM23 per day under new contract terms). The workers also wanted paid medical leave, which is an entitlement in law. The migrant workers concerned were also preparing to lodge a complaint with the Labour Department to help resolve the problems they claimed to face.

Hector disclosed in a blog posting on 15 February that he had sent two e-mails on 8 and 9 February to the company raising the workers problems with them but he did not receive any reply from Asahi Kosei to refute the contents of the two e-mails or to deny its involvement in the dispute. Sadly, the company’s first and only response was made through its lawyer’s letter of 11 February, as mentioned above.

Asahi Kosei also claimed through its lawyers that it is not the employer of the Myanmar workers concerned and has no obligation to pay their wages directly to them or to supply accommodation or household appliances and utilities to them. The firm claims that the outsourcing agent (who has not been identified by the company) is the real employer of the migrant workers and thus has responsibility over them.

Asahi Kosei, therefore, alleges that Hector has committed libel by publicising the issue in his blog and naming the firm as the employer of the Myanmar migrant workers concerned.

We, the undersigned groups, call on Asahi Kosei (M) Sdn. Bhd. to review and withdraw its demand and intended legal action against Charles Hector. It is against public interest to go after human rights activists, bloggers and media personnel who highlight any alleged human rights violations. Moreover, the company was given the opportunity to inform Hector of any inaccuracies in the information given to him when he made enquiries in two emails to the firm. The company has not explored all avenues in resolving the problem faced by the workers amicably before resorting to this demand and threat of legal action; it should focus its attention on resolving these problems.

In our view, Asahi Kosei’s action is unreasonable, arbitrary and heavy handed; aimed at the suppression of free expression and workers’ complaints. The company also appears to be pushing its responsibility for the workers to a dubious unknown and unnamed party and, directly or indirectly, obstructing the right of workers to legally resolve their labour problems through the proper channels available to both workers and employers.

It would also be commendable for Asahi Kosei to immediately reinstate the two workers and engage in the dispute resolution process according to Malaysian labour laws, with Labour Department intervention as legally provided in this country.

Likewise, we urge all employers to engage in the dispute resolution process according to employment legislation and to adhere to all relevant labour and other legislation in Malaysia which apply to local as well as migrant workers in this country. Employers should recognise and respect the rights of all workers, their human rights and human dignity.

We reiterate that all workers, including migrant workers, are human beings with inherent rights and fundamental freedoms. They are not commodities to be imported, exploited and deported at the whims of employers or their recruitment and outsourcing agents.

16 February 2011

Endorsed by:

  1. Aliran
  2. MagickRiver
  3. Centre for Policy Initiatives
  4. Centre for Orang Asli Concerns
  5. Parti Sosialis Malaysia
  6. Saya Anak Bangsa Malaysia (SABM)
  7. Civil Society Committee of Lim Lian Geok Cultural Development Centre
  8. LLG Cultural Development Centre Bhd
  9. Persatuan Pendidikan Sekolah-Sekolah Persendirian (Cina), Pulau Pinang
  10. Borneo Resources Institute, Malaysia (Brimas)
  11. Citizens International (Penang)
  12. Asian Migrants Centre
  13. Building and Woodworkers International (Switzerland)
  14. Women Institute for Reseach Development and Advancement (WIRDA)
  15. International NGO Forum on Indonesian Development
  16. Writers Alliance for Media Independence (Wami)
  17. Persatuan Kesedaran Komuniti Selangor (Empower)
  18. Thai Committee for Refugees (TCR)
  19. Human Rights Education Institute of Burma
  20. Human Rights Working Group-Indonesia
  21. International Movement for a Just World
  22. Norwegian Burma Committee
  23. Workers Assistance Center, Philippines
  24. Semarak Cerlang Nusa – Consultancy, Research, Education for Social Transformation (SCN-CREST), Indonesia
  25. Commission for the Disappeared and Victims of Violence (KontraS), Indonesia
  26. Judicial System Monitoring Programme (JSMP), Timor Leste
  27. Union Network International-Malaysian Liaison Council (UNI-MLC)
  28. Free Burma Coalition – Philippines (FBC-Phils)
  29. Initiatives for International Dialogue (IID), Philippines
  30. KKSP Foundation, Indonesia
  31. Health Equity Initiatives
  32. Migrants Trade Union (MTU)
  33. NGOs in Myanmar Web Portal
  34. Myanmar Youth Knowledge Initiative
  35. SOS (Save Ourselves), Penang
  36. Penang Watch
  37. MEO-Net
  38. Forum for Democracy in Burma
  39. Project Maje, Portland, Oregon, USA
  40. MAP Foundation, Thailand
  41. Burmese Relief Center, Japan
  42. Migrante International, Philippines
  43. Bar Council Malaysia
  44. Koalisi Perempuan Indonesia Untuk Keadilan dan Demokrasi (Indonesian Women’s Coalition for Justice and Democracy)
  45. Lee Siew Hwa, blogger
  46. Consumers’ Association of Penang
  47. Sahabat Alam (Friends of the Earth) Malaysia
  48. Third World Network
  49. Teras Pengupayaan Melayu
  50. Think Centre, Singapore
  51. Khmer Institute of Democracy
  52. Publish What You Pay,  Indonesia
  53. Chin Democracy and Human Rights Network, South Korea
  54. Solidaritas Perempuan-Women’s Solidarity for Human Rights, Indonesia
  55. Yaung Chi Oo Workers Association (YCOWA)
  56. Centre of Democracy and Human Rights Studies (Demos), Indonesia
  57. Burma Partnership
  58. Task Force on Asean and Burma
  59. Solidaritas Indonesia untuk Burma (SIB)
  60. Mario Art, Blogger, www.martoart.multiply.com
  61. Women’s Aid Organisation (WAO)
  62. Housing Rights Task Force Cambodia
  63. Transient Workers Count Too (TWC2), Singapore
  64. The National Human Rights Society (Hakam)
  65. Persatuan Kesedaran Komuniti
  66. Cambodian Centre for Human Rights (CCHR)
  67. Pergerakan Indonesia
  68. Human Rights Education Institute of Burma (HREIB)
  69. Centre for Trade Unions and Human Rights, Philippines
  70. Centre for Human Rights of Islamic University of Indonesia/Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia (Pusham UII)
  71. Cambodian Human Rights and Development Association (Adhoc)
  72. Burma Centre, Delhi
  73. Myanmar Ethnic Rohingya Human Rights Organisation Malaysia (Merhrom)
  74. MAUAH (Working Group for Asean Human Rights Mechanism, Singapore)
  75. Tanjung Bunga Residents’ Association (TBRA)
  76. People’s Forum on Burma, Japan
  77. Burmese Rohingya Association in Japan (BRAJ)
  78. Taman Sri Nibong Residents’ Association
  79. Friends of Pakatan Rakyat UK
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Open letter from the Asian Human Rights Commission to Asahi Kosei (M) Sdn Bhd

18 February 2011
AHRC-OLT-002-2011

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 11 February 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 8 February, titled ‘ Hopefully Asahi Kosei (M) Sdn Bhd won’t terminate/deport workers who claim rights’; and on 9 February, 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 to 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.

READ MORE:  Closing the inequality gap in migration

As you are aware, the workers, whom 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 outrightly 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 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 of 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 is 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 recognised 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

Media statement

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.

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Now, the company seem to be denying all allegations, even to the extent 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 bargaining 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 the 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 better rights and benefits from their employers.

The Malaysian government tried to legalise 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.

The Malaysian Trades Union Congress has 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 have not yet borne 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 all right 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 workers’ rights.

Any good company that respects universally accepted human rights and workers’ 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 of workers’ rights violations to try and 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 silence these persons and organisations from highlighting workers’ rights and human rights violations.

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

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, will do what is necessary, including reinstating the two 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, National Union of Transport Equipment & Allied Ind.Workers
Former President of Malaysian Trades Union Congress (MTUC)

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