Migrant Rights and a Million Dollar Lawsuit

An abridged version of this article was first published on the Doha Centre for Media Freedom on 11/09/2011.

The penalty for ‘whistle blowing’

On August 25th 2011, a Malaysian High Court concluded that Charles Hector Fernandez, a Malaysian human rights advocate, would pay about $1 million in damages to Asahi Kosei, a Japanese electronics firm, as part of a civil defamation settlement. He will also address a half page apology to the company to be published in leading Malaysian newspapers.

The official charge against Charles was creating “ malicious falsehoods” against Asahi, which constitutes as ‘libel’ under Malaysian laws. But his actual crime is that of being a whistle blower who documented and reported labor violations against 31 Burmese migrant workers employed by Asahi. Charles detailed the Burmese workers’ claims on his human rights blog. His penalty was a punitive lawsuit by Asahi demanding $3.3 million dollars from Charles for trying to malign their reputation and a public apology, which has led to the current outcome.

Sedition to defamation: public and private restrictions on freedom of speech

It was an act instated in 1948 to curb critical speech against British colonial rule in the Federation of Malay – present day Malaysia.

Today, the infamous Sedition Act remains a parliament-imposed restriction on freedom of speech that has been granted and consistently extended under the auspices of the federal constitution of Malaysia.

So any critical speech against a branch, instrument or figure of the government can be punishable by law when deemed malignant and a threat to national interests. Now, apply the same principle to the private sphere, where accusations against a company or individual of unethical behaviour, can be taken to the courts even if documented and corroborated with testimonies. This is what Charles Hector is currently facing as a whistleblower on human rights abuses against migrant workers by Asahi Kosei. Asahi has charged Charles with committing ‘libel’ which applies exclusively to the private sphere, but the company’s behaviour alarmingly resembles that of a governmental body with constitutional privileges.

The story behind the case

Charles’ blog entry was based on complaints by the 31 migrant workers that they were being compensated a significantly lower wage than agreed upon. The workers reported to Charles that when they addressed the issue with their employer, they were threatened with termination and deportation. The migrant workers were supplied to Asahi by an ‘outsourcing’ agent. According to most civil rights activists, the very existence and continuing operation of such outsourcing companies that supply workers to the owner-operator are in violation of current employment laws in Malaysia, where third party outsourcing agents are illegal and do not possess permits.

Charles is candid in his assessment of the state of free speech in Malaysia. ‘Deplorable’ is his unhesitant verdict. “Whilst Malaysia’s Federal Constitution guarantees freedom of speech, opinion and peaceful assembly, it is taken away by the requirement of permission from the police, permits and licenses from government bodies,” he elaborates.

That this case has successfully made it to the courts in Kuala Lumpur is a heavy blow to an already precarious human rights situation for migrant workers in the country. It is a veiled threat to free speech and access to information that are vital for demanding accountability from wrong doers. In this case the parties to be questioned are Asahi, as a foreign company that should be meticulous in following labor laws, and the government that has turned a blind eye towards illegal outsourcing agents. In determining the validity of the lawsuit, the courts have not considered the illegal status of the outsourcing company that provided the workers to Asahi and Asahi’s own complicit involvement in an illegal practice by hiring the workers through the agent. And so the lawsuit has continued for months upon Charles’ refusal to retreat his blog entry that documented complaints by the 31 workers.

Government compliance

Charles and his family are not alone in their disbelief over the lawsuit. Civil society groups across the globe from Human Rights Watch to the Asian Foundation for Human Rights have condemned the case as a bullying tactic to shut the mouths of activists, journalists and media challenging the ethics of multinational giants that carry weight and influence in policy making circles. It is a move that they all agree should not be condoned by the government, especially when related to the rights of its own citizen over the interests of a foreign-owned company that is treading murky waters.

As part of efforts to eradicate corruption and promote transparency in Malaysia, the government instated the Whistleblowers Act in 2010 to protect individuals and organisations that uncover fraudulent practices inside the country. So the imperative question in this case is: Why has the act not been applied to Charles and the 31 migrants workers as whistleblowers?

Asahi claims that they have no legal obligations towards the treatment of these workers who carried out paid duties at their factory as these individuals were supplied by a third party. Hence, Charles must either officially retract his statements or pay the sum for the purported libel.

To counter Asahi’s demands that Charles remove the postings from his blog and publicly apologise for his ‘condemnable’ and condemning comments, 70 international human rights groups have asked the company to retract the libel case.

“It is against public interest to go after human rights activists, bloggers and media personnel who highlight any alleged human rights violations,” the Asian Human Rights Commission and others explain in their joint letter.

But the lawsuit against Charles is exemplary of the current state of the judicial process in Malaysia, where individual speech is curbed when deemed necessary, police have an inordinate amount of power and corporations profitable to the economy behave like political heavyweights.

Charles explains that government compliance in this case is evident through its deliberate “inaction” and its failure to “enforce existing laws and allowing practices that attempt to evade/disguise real employment relationships.” By not reacting to Charles’ accusations of ill-treatment of migrant workers and allowing the defamation case to continue in the court where Asahi is the initiator of a libel suit and not a defendant in a labor abuse case, the responsible ministries have implicitly endorsed the case.

Asahi is clearly attempting to shut down future questions over ‘ethical practices’ from other prying activists and journalists. And the case is perhaps one that the government has been entertaining as a solution to the increasing criticism of the ‘migrant situation’ over the years.

Migrant Workers: commodities without protection

With an estimated 1.7 million migrant workers, only 700,000 of whom are documented, Malaysia constitutes the largest market for foreign workers in Southeast Asia. As a relatively affluent country in the region, the country attracts migrants from surrounding conflict ridden and poverty afflicted countries, such as Burma. Whilst the market demand for these workers has continued over the years, the government has done little to protect the rights of non-Malaysian employees. These workers are needed but not necessarily wanted and this attitude can be seen both societally as well as well as in the government’s inadequacy in applying human rights laws to these segments.

Horror stories of overcrowded detention centres where illegal migrants are confined for months without legal aid are not new to the country. Mass hunger strikes and setting ablaze of facilities by frustrated migrant detainees have been reported in the media in recent years. Cases of employers confiscating passports of foreign workers are widespread. However, activism in relation to migrant rights remains a sensitive and ‘difficult to access’ field even for Malaysian citizens.

Similar to its neighbour Singapore, Malaysia has maintained a highly restrictive environment for civil society groups, where local NGOs have to undergo a burdensome and bureaucratic process of registration and where international NGOs are often successfully curtailed by the government in their activities. Similar restrictions has been formally and informally applied to media coverage of migrant issues.

For instance Charles points out, “joint media statements on issues affecting migrant workers are almost never carried by mainstream media in Malaysia.” The absence of a unified voice amongst national media outlets against this rampant problem is clear evidence of a domineering government policy that inevitably encourages similar violations by individuals, businesses and corporations.

Impact on activism

Charles is not alone in realising that the very initiation of this lawsuit, which has stretched over several months now, will have a severe impact of the psyche and morale of those wanting to expose wrongdoings in their communities.

“This will certainly have a very great implication on the situation of human rights, worker rights, environmental rights and other rights, for it will instil greater fear in the hearts and minds of those who not only become aware of rights violations, who may then choose to sit idly for fear of being sued for millions of dollars.”

Based on his current court battle, Charles explains that apart from the heavy penalties levied upon individuals, it is mainly “the torment, anguish and cost of fighting such a case in court that is an expensive affair beyond the means of most persons.” Hence, an effective tactic for curbing critical speech.

The lawsuit might in some cases prevent the general public from reporting human rights abuses, but it has certainly not deterred Charles from continuing his efforts. Charles will continue championing human rights, justice, peace, migrant issues and equitable labor laws in Malaysia. He is here to stay, and a multi-million dollar threat is unlikely to stop him. Meanwhile, he patiently awaits a response from Asahi and the government of Malaysia in relation to the 31 migrant workers.

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