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

Dear friends,

We wish to share with you the following joint statement from Human Rights Now and FORUM-ASIA.

Asian Human Rights Commission
Hong Kong

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FOR IMMEDIATE RELEASE
AHRC-FST-033-2011
May 25, 2011

A Joint Statement from Human Rights Now and FORUM-ASIA forwarded by the Asian Human Rights Commission
 
MALAYSIA: Stop legal action against Malaysian human rights defender for highlighting rights of migrant workers
 
23 May 2011

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 … 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

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Australia in controversial refugee swap (DVB, 9/5/2011)

Australia in controversial refugee swap

By JOSEPH ALLCHIN
Published: 9 May 2011

Burmese are seen among detained migrants at Malaysia's Semenyih camp (Reuters)

Australia has struck a deal with the Malaysian government to accept thousands of refugees, mostly Burmese, living in the country in return for Malaysia taking on the burden of hundreds of boatpeople that arrive in Australia each year.

Canberra’s Labour government announced that it will send around 800 asylum seekers to camps in Malaysia over the next four years, whilst taking 4,000 UN-processed refugees who live there in crowded camps awaiting resettlement.

Australia will foot the bill for the deal, paying Malaysia a reported $AUS300 million ($US322.8 million). Immigration minister Chris Bowen said in a statement that the main message of the so-called Regional Cooperation Framework was for asylum seekers heading to Australia to “[not] get on that boat.”

Thousands of asylum seekers arrive by boat in northern Australia each year after gruelling, often hazardous, sea journeys. But the deal, Bowen said, “will help put people smugglers out of business and prevent asylum seekers making the dangerous journey to Australia by boat.”

Under the arrangement, a statement said, those send to Malaysia would be placed at the “back of the queue” for resettlement. This comes despite the falling numbers of ‘boatpeople’, as sea-bound refugees are often termed – the Independent newspaper notes that 940 asylum seekers arrived by boat this year compared with some 2,000 in the corresponding period last year.

The agreement was a result of the 4th Bali Process Regional Ministerial Conference on people trafficking in March. Activist Pranom Somwong alleged that the deal used anti-trafficking rhetoric, when in actual fact the Australian government was seeking to placate a distinctly anti-immigrant sentiment amongst Australia’s population, many of whom, including Prime Minster Julia Gillard and leader of the opposition Tony Abbot, are recent immigrants themselves.

The two, both of whom or who’s families arrived under Australia’s previous immigration policy, termed “White Australia”, which officially ended in 1973, have themselves been accused of racism.

Ian Rentoul, from the Refugee Action Coalition of Australia, earlier told DVB that “the racism of the Labour party is quite disguised”, whereas “the racism of the Liberals is very much on display”. Liberal leader Abbott is famous for statements such as “the great prize of Australian citizenship is insufficiently appreciated and given away too lightly”.

Gillard defended herself from critics when she told the Australian Broadcasting Corporation: “For people to say they’re anxious about border security doesn’t make them intolerant. It certainly doesn’t make them a racist – it means they’re expressing a genuine view.”

Of the bilateral agreement, Abbot told the BBC that “Today we’ve seen a panicked announcement from a government which is proving yet again that it’s both untrustworthy and incompetent,” despite the policy being appropriated from Abbot’s right leaning Liberal party.

Australia has been criticised in the past for the practice of offshore detention camps started by former Liberal party Prime Minister John Howard, who built various immigration centres in the Pacific nations of Papua New Guinea and Nauru. He said in 1988 that “it would be in our immediate-term interest and supporting of social cohesion if it [Asian immigration] were slowed down a little.”

These centres have also been under the spotlight, with the thousands detained each year often kept in conditions that have sparked numerous protests, with one Burmese man earlier this year setting himself alight.

Malaysia-based human rights lawyer Charles Hector has asserted that Malaysia is already home to roughly five million undocumented migrants, with those unfortunate enough to find themselves in detention centres also regularly protesting the dire conditions.

The Malaysian government is routinely criticised for its refusal to become a signatory to the UN High Commissioner for Refugees (UNHCR). Elaine Pearson, deputy Asia director of Human Rights Watch (HRW), earlier told DVB that detainees were subject to malnutrition and disease, whilst government officials had profited from the trade in people. The US government has repeatedly condemned Malaysia’s track record on human trafficking.

Recent cases have also painted a negative picture of the Malaysian justice system. Lawyer Hector is currently in court facing charges of defamation for publicly defending Burmese migrant workers who were not receiving their contractual dues. The company in question, Asahi Kosei, hit back by saying that the workers were not employed by them, but rather brokers, a system that critics say abrogates legal responsibility from employers. - Democratic Voice of Burma, 9/5/2011, Australia in controversial refugee swap

Charles Hector's case mentioned in UK House of Commons Hansard

Charles Hector's case mentioned in UK House of Commons Hansard -9/5/2011

An extract from the Hansard of the House of Commons containing references to Charles  Hector's case, at columns 988W-989W. 

  The relevant section is also set out below.

Malaysia: Human Rights

Paul Blomfield: To ask the Secretary of State for
Foreign and Commonwealth Affairs whether he has
made representations to the government of Malaysia
concerning Mr Charles Hector Fernandez; what his
most recent assessment is of the situation of human
rights campaigners in Malaysia; and if he will make a
statement. [54621]

Mr Jeremy Browne: The EU Delegation in Kuala
Lumpur has met with Charles Hector Fernandez and
has been following his trial on behalf of member states.
The Malaysian Government is not a party to the case,
which is a civil matter between Mr Fernandez and a
Japanese company. The UK has therefore made no
representations to the Malaysian Government, but our
high commission in Kuala Lumpur continues to monitor
the trial.

Malaysia has a national framework for the protection
of human rights enshrined in its constitution. However,
we remain concerned that human rights defenders who
challenge the Government can suffer harassment and
arrest. EU missions in Kuala Lumpur met local human
rights defenders in March 2010 and maintain a dialogue
with them. Our high commission also maintains contacts
with human rights defenders and regularly speaks to
them and to the national human rights commission
(SUHAKAM) on a range of human rights issues.

Malaysian Detention Centres are already overcrowded - so why accept to house asylum seekers already in Australia?

Malaysian Detention Centres are already overcrowded - so why accept to house asylum seekers already in Australia?

Malaysian detention centers currently housing alleged undocumented migrants, which would include asylum seekers and others, are already overcrowded - and detainees and civil society have been protesting for better and more humanitarian detention conditions. 

When complaints of detainees fall on 'deaf' ears of the detaining authority and Malaysian government, there have been 'protests' - some of which have even resulted in fires and breakouts. Most recent have been the protests in the Lengeng Detention Centre. [See earlier posts:-Lenggeng Immigration Depot breakout - Investigate the root causes]

 

When asylum seekers reach Australia and claim for asylum, Australia should be housing these asylum seekers in Australia while the Australian government processes their applications....It is odd that they do not want to house them in Australia and was seeking other countries to house them...

Malaysia also have hundreds of thousands of asylum seekers and refugees that come to Malaysia  seeking asylum and refugee status - but whilst their application are being processed by the relevant bodies, they are all in Malaysia. Malaysia does not try to 'group them and dump them' in some other country....

There are already about 5 million undocumented migrants in Malaysia, which also includes tens of thousands of asylum seekers and refugees - so, I am shocked to learn that Malaysia has agreed to accept about 800 more asylum seekers from Australia. (This number would increase as more and more asylum seekers go to Australia). 

Why does Malaysia do this? The report says that in response Australia will accept 4,000 refugees per year. As a member of the UN, Australia already has an obligation to accept asylum seekers and refugees - and we already have tens of thousands of persons already accorded refugee status still waiting to be re-located in a 3rd country, like Australia who has the space and the capability to accept refugees. We have even more persons (maybe over 100,000 more) still waiting for asylum seeker/refugee status.

Even after persons get refugee(or asylum seeker status), and those still in the process of application are not provided housing and board in Malaysia, and they are just left to fend for themselves. Not having the right to legally work, and given the fact that Malaysian law does not recognize refugees and asylum seekers, they are all treated as 'undocumented' migrants who will be subject to arrest, detention and even deportation. 

Malaysia already has its own problems - and it makes no sense that Malaysia has now agreed to accept these persons who went to Australia seeking asylum and refugee status.

Further, would it also not be discriminatory and prejudicial when these persons in Australia seeking asylum are Malaysians - surely the return of Malaysian asylum seekers to Australia would be an act of 'non-refoulement' ...and an act contrary to universal principles and law.

Australia must revoke this agreement and keep their asylum seekers, now already in Australia, in Australia - not send them to some other country.

 

May 07, 2011

Malaysia, Australia Agree On Cooperative Transfer Of Asylum Seekers

KUALA LUMPUR, May 7 (Bernama) -- In a move to combat people smuggling and irregular migration in the Asia-Pacific region, Malaysia and Australia today announced a new bilateral arrangement which entails among others, an agreement for a cooperative transfer of asylum seekers.

In a statement issued by both governments, they said that under the new arrangement, asylum seekers arriving by sea in Australia would be transferred to Malaysia.

In exchange, Australia would expand its humanitarian programme and take on a greater burden-sharing responsibility for resettling refugees currently residing in Malaysia, the statement said.

Both prime ministers agreed that the core elements of the arrangement would include the transfer of 800 irregular maritime arrivals, who arrived in Australia after the date of effect of the arrangement, to Malaysia, for refugee status determination.

"In return, over four years, Australia will resettle 4,000 refugees already currently residing in Malaysia," the statement added.

The statement added that the transferees would not receive any preferential treatment over asylum seekers already in Malaysia.

"Transferees will be provided with the opportunity to have their asylum claims considered and those in need of international protection will not be refouled," it said.

Both governments also pledged to treat transferees "with dignity and respect and in accordance with human rights standards."

Australia would fully fund the arrangement, it added.

Both leaders said the bilateral agreement signed by both of them was part of the Regional Cooperation Framework agreed to at the Bali Process Ministerial Conference in Bali, Indonesia on March 30 this year.

They said that both countries were working closely with the United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM) to operationalise the arrangement.

Najib and Gillard said the complex nature of irregular migration, which they said was closely linked to the crimes of human trafficking and people smuggling, cannot be solved by acting alone but "must be tackled by countries forming cooperative arrangements under the auspices of regional and international frameworks."

They said the implementation of this one-off pilot project would be important "to undermine the business model of transnational criminal syndicates" particularly in people smuggling and human trafficking in this region.

The Malaysian and Australian governments had asked senior officials to finalise a memorandum of understanding in the near future to set out detailed arrangements, the statement added.

-- BERNAMA

Australia must call off asylum seeker “outsourcing” deal with Malaysia

Press Release : Australia must call off asylum seeker “outsourcing” deal with Malaysia

On 7.5.2011, Australia and Malaysia announced a bilateral agreement which sought to transfer up to 800 asylum seekers who have arrived in Australia by sea to Malaysia while their asylum claims are being process by the UNHCR. In return, Australia will resettle 4,000 refugees currently residing in Malaysia over a period of four years.

While Australia’s agreement to accept more refugees for resettlement is commendable, Lawyers for Liberty is however extremely shocked and concerned by Australia’s plan to forcefully deport asylum seekers and “outsource” its international obligation to protect refugees as defined under international law including the 1951 Refugee Convention which Australia is a party to.

Let there be no doubt: Malaysia has a horrendous track record – infamous for its ill and brutal treatment of refugees and other undocumented migrants and has been consistently ranked as one of the world’s worst place for refugees to be in.

Malaysia is not a state party to the Refugee Convention and in the absence of a comprehensive national legal and administrative framework for the protection of refugees, this transfer deal will certainly violate the rights of the refugees including the right not to be forcefully deported; the right to life, liberty and security of the person; and the right to freedom from torture or cruel, inhuman, or degrading treatment or punishment.

In Malaysia, refugees and asylum seekers are still treated as undocumented migrants and subjected to harsh immigration laws and policies. Without documents, they are unable to work legally and live in perpetual fear of raids, arrest and harassment. Consequently, they live in the margins of society, constantly in hiding and living in poverty.

When arrested they are detained at detention centres for several months (sometimes even years) before being charged, jailed, whipped (men only) and deported, mainly to the Thai border – and some find themselves sold to human traffickers.

In May and September 2009, eight Burmese detainees died in two detention centres due to Leptospirosis, an infectious disease caused by water or food contaminated with animal urine. Detention conditions are deplorable and inhumane – overcrowding, sweltering, lack bedding, poor hygiene and sanitation, insufficient and poor quality food, irregular access to clean water and medical treatment, all of which fall far short of minimum international standards. Serious abuse by detention centre staff is also common, including arbitrary beatings.

The then Home Minister Datuk Seri Syed Hamid Albar reported to Parliament that between 1999 and 2008, there were 2,571 detainee deaths in prisons, rehabilitation centres and immigration detention centres. In December 2008, former Suhakam Commissioner Datuk Siva Subramaniam said 1,300 foreigners died in detention during the past six years due to lack of medical treatment and neglect.

How can the Australian government be blind to Malaysia’s severe and brutal treatment of undocumented migrants and refugees and “outsource” its responsibility, without seriously undermining the rights, well being and safety of the refugees?

Australia, being a state party to the Refugee Convention, instead of working hand in hand with Malaysia to punish and deter refugees, should strive to formulate policies that are protective of refugees and consistent with its international obligation. It can start by calling off this terrible outsourcing deal.

Issued by Lawyers for Liberty

9 May 2011

Fadiah