Background of alleged violations at Asahi Kosei and retaliatory lawsuit Despite being notified about these serious developments

affecting workers, who are working at Asahi Kosei, the company took no action to hinder them. Instead, Asahi Kosei has filed a three-million dollar defamation lawsuit against a lawyer and human rights defender Mr. Charles Hector in retaliation for notifying the company and the public about the ongoing concerns of serious human rights violations in defense for these workers rights. Mr.Charles Hector is a Malaysian lawyer. He has previously been a member of the Malaysian Bar Council. For many years, Mr. Hector has represented workers, migrants in various cases. Mr. 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, Mr. Hector proceeded to communicate to Asahi Kosei on February 8, 9, 2011 to seek the clarification from company on all alleged threats of terminations and deportations of workers, urging the company to ensure that the Burmese workers rights were respected. When he received no reply from the company, Mr. 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 has been previously documented that when migrant workers begin to exercise their rights they face immediate deportation back the country of origin. For instance three workers at Sinometal were sent back to Burma on January 19, 2011 after they had protested their working conditions.1 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 are 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 6 days later on 14/2/2011. The companys main argument is that the said workers are not their workers, but are workers supplied by an outsourcing agent, and as such they are not responsible for the said 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 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 workers rights are being violated comes to their notice. This avoidance of employment relationships, and responsibility to workers who are working in the factory have been frowned upon by human rights and worker rights advocates, and today even the International Labour Organisations(ILO) is of a
1

http://www.dvb.no/news/migrants-missing-after-rights-case/13768

similar position, and has come out with Guidelines and Recommendations towards ending such avoidance of an employment relationship by some companies.2 Note also that there have been discussions, Government studies and even Japanese Court decisions on the said 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 exits an employment relationship when the actual work circumstance lends itself to an employment relationship regardless of the provisions of the contract 3 who actually hands over the salary is also less important, compared to who really you work for, and where you work producing whose products under whose control and supervision, and all this factors, when considered clearly shows that Asahi Kosei is indeed the employer and is responsible for the said 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 which Asahi Kosei got these workers from are not private employment agencies. Hence, the only thing that could be are really agents of Asahi Kosei and as such Asahi Kosei is certainly liable for the actions of their agents, and all the said 31 migrant workers are employees of Asahi Kosei. In Malaysia, being migrant workers, the employers 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, that 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 days 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 2 of the migrant workers on 7/2/2011 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,
2
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]

(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).

e) Taking away of another 2 other workers to be processed to be send back to Burma on or about 9/2/2011 and 10/2/2011, when they refused to agree to the new agreement, when these 2 were workers that 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 calls to uphold the human rights of workers and to treat them with dignity and refers to Universal Declaration of Human Rights and International Labour Standards. In particular, we would like to stress that it has become internationally recognized that a company is responsible for the workers who work in 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 different well know Japanese brands 4 and international brands, most (if not all), including Hitachi as an example, have codes of conduct that imposes obligations to ensure protection of human rights and worker rights, including anti discrimination not just with regard to workers in Asahi Kosei factory but also workers in companies that supply Asahi Kosei the requirements for what is manufactured/produced in Asahi Kosei. The most recent 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 on the issue of human rights and transnational corporations and other business enterprises, which was accepted by the Human Rights Council, also clearly recognized the human rights defender and their rights. As such the commencement and the continuation of a legal action against Human Rights Defender by this Japanese company is deplorable and contrary to universal human rights standards, and certainly against the promotion and protection of rights. It is sad that some companies with declared Code of Conducts and Standards are seen to be hypocrites by reason of their continued association with companies where worker and human rights have been violated, and after five months, Human Rights Defender Charles Hector is still facing a trial, that is now fixed for the commencement of 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 the legal action claiming USD3.2 million against Human Rights Defender, Charles Hector and this has resulted in many calls from various quarters for the immediate withdrawal of the suit, and that Asahi Kosei focuses its attention in trying to ensure justice for the said 31 migrant workers.
4

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.

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, commenced Urgent Appeals and petitions. In addition there have also been various petitions against the company and its buyers. The European Union is also concerned, and have been attending and monitoring this case since February. Representatives of the Norwegian, Royal Belgium and Danish embassies in Malaysia have also been monitoring and have been present at hearings. 31 MP signs Early Day motion 1800 in UK Parliament addressed issues of Human Rights in Malaysia especially the case of Human Rights Defender Mr. Charles Hector. We have been informed that Charles Hector also did send on February 12 2011 a letter to inform the Japanese government about this rights-violation situation of 31 migrant workers in Asahi Kosei, together with a Joint Statement of concerns from 77 organisations around the world. This letter was sent to the Japanese embassy in Kuala Lumpur, Malaysia, and 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 role towards this objective, and most essential is their role, ability and right to be able to highlight situations of injustices and rights violations, without fear or favour, to enable others to act to end violations and injustices soonest. Legal actions against Human Rights Defender do nothing to resolve matters, but only serve to deter future disclosure of rights violations to the detriment of human and worker rights. In this case, where the victims were 31 foreign migrant workers, who are not only prejudiced by language and the fact that they cannot and will not be able to access avenues of justice if they are made illegal by errant employers, or caused to be send out of the jurisdiction of Malaysian law, tribunal, courts and other avenues of justice prematurely, the importance of highlighting by Human Rights Defenders speedily becomes more important. In this case, there were attempts to send at least 4 of the workers back to Burma speedily when they raised grievances. Since then, these 4 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 and it is worrying trend as it will impact on the rights/duties/obligations of not just Charles Hector but also other human rights defenders in Malaysia, the region and the world.