Discontinue legal action againts Pornpen Khongkachonkiet, Human Rights Defender

Joint Statement – 25/08/2014

Statement on the Judicial Harassment of Leading Human Rights Defender, Ms.Pornpen Khongkachonkiet

We, the undersigned civil society groups, are gravely concerned about the criminal legal action taken for defamation and libel against the Cross Cultural Foundation, headed by Ms. Pornpen Khongkachonkiet, by the Army’s Task Force 41. Ms. Pornpen, Director of the Cross Cultural Foundation – an organization which monitors and documents cases of torture and ill-treatment in Thailand – received a police warrant on Sunday 24th August 2014. The Thai Royal Police warrant is dated from 8th August. Major General Leekit Katchodnok, acting on behalf of the Army’s Task Force 41, filed a legal suit against Ms. Pornpen for libel and defamation. The army accuses the Cross Cultural Foundation for damaging the reputation of the army by publishing an open letter exposing a claim to torture. According to the warrant Ms. Pornpen must present herself at the Yala Police Station, in southern Thailand, on August 25th.

Ms. Pornpen is a leading Human Rights Defender in Thailand who has been involved in various Human Rights issues both in Thailand and the region, including women’s rights, indigenous rights and preventing forced disappearances.  Her work serves the public interest by ensuring that authorities are held accountable and pressuring authorities to unconditionally respect the Human Rights of all. As Director of the Cross Cultural Foundation, Ms. Pornpen has constantly been monitoring and documenting cases of torture and Human Rights violations in Thailand’s southernmost provinces.

We deem the army’s action to be an unreasonable, arbitrary and heavy handed attempt to silence all torture complaints against authorities. By quashing Ms. Pornpen’s efforts to support torture victims to publicly complain about Human Rights violations by authorities, the army is seeking to make it more than impossible for torture victims to voice their complaints. Moreover, this is a deplorable act by the army as it aims to further intimidate existing and potential victims of human rights violations to not report these violations. Instead of suppressing the work of Human Rights Defenders, such as Ms. Pornpen, the army should investigate all torture complaints and take all necessary measures to resolve the problem of continuing Human Rights violations.

This judicial harassment constitutes a direct infringement of Ms.Pornpen’s right to work as a leading Human Rights Defender in Thailand. As stated in Article 1 of the UN Declaration on Human Rights Defenders “Everyone has the right to (individually and in association with others) promote and to strive for the realization of Human Rights and fundamental freedoms at the national and international level.” We believe that the filing of this criminal legal case against Ms. Pornpen was undertaken with the purpose of intimidation and that it is in response to Ms. Pornpen’s peaceful and legitimate activities to hold authorities to account for cases of Human Rights violations, including torture, in southern Thailand.

We call on the army to:

Immediately and unconditionally withdraw the legal action against Ms. Pornpen. Such legal action against the legitimate work of Human Rights Defenders is against the public interest.

We call on the government to:

Respect the universally recognized rights, duties and obligations of everyone and organizations to highlight information about Human Rights violations and injustices to the public, as is stated in the UN Declaration

on Human Rights Defenders;

Ensure that all persons affected by torture and other human rights violations, including the right to complain which must be respected at all times, receive justice.

Signed by:
1. Union for Civil Liberties
2. Community Resource Centre
3. Human Rights Lawyers’ Association
4. Asia-Pacific Forum on Women, Law and Development
5. Frontline Defenders
6. WOREC (Nepal)
7. National Alliance of Women Human Rights Defenders (Nepal)
8. Protection International

For more information, please contact: Anucha Wintachai +66 830796411 eakucl@gmail.com

Where to go for updates on Lena Hendry?

Now, that there is another website maintained by others that is providing updates on HRD Lena Hendry's case, our efforts are no longer crucial. Do visit  http://komas.org/indefenceoflenahendry/

We would still continue providing relevant material on Lena Hendry and also other Human Rights Defenders(HRDs)... 

 

No Fire Zone: Lena, villain or victim?

8 Jul 14

By Mariam Mokhtar (First appeared in Free Malaysia Today on July 4th, 2014) Lena Hendry is like any other Malaysian. She […]

Case Update 23rd June 2014: Mention in Magistrate Court

23 Jun 14

We attended court today for the mention of case before Magistrate Tuan Ashraf Rezal bin Abdul Manan. A new mention […]

Urgently campaign for Lena Hendry and get more to sign online petition

4 Jun 14

Remember, the Public Prosecutor can drop the charges…. and time is short..for if the trial starts, it would not last […]

Memorandum handed over to Malaysian Human Rights Commission - 28/4/2014

A memorandum was handed over by members of Malaysian civil society to SUHAKAM (Malaysian Human Rights Commission) today(28/4/2013) with regard the charging of Human Rights Defender Lena Hendry using a law that says that all video that is in your possession, screened must have the approval of the Film Censorship Board of Malaysia.

The law being used is certainly against human rights... and it certainly will further restrict communication between people in society - To now additionally need to get approval by the Film Censorship Board...

(1) No person shall-

(a) have in his possession or in his custody or under his control; or
(b) circulate, exhibit, distribute, display, manufacture, produce, sell or hire,

any film or film-publicity material which has not been approved by the Board.  - Section 6(1) FILM CENSORSHIP ACT 2002

And, mind you 'film' and 'film publicity material' is defined so widely that it cover even moving power-point presentations shown as a slide show..., recordings of speeches, forums, etc...It will also include training videos that deal with human rights and worker rights...

"film" includes the original or duplicate of the whole or any part of-

(a) a cinematograph film; and (b) a videotape, diskette, laser disc, compact disc, hard disc and other record,

of a sequence of visual images, being a record capable of being used as a means of showing that sequence as a moving picture, whether or not accompanied by sound; - Section 3, FILM Censorship Act 2002

The memorandum was received by Human Rights Commissioner, James Nayagam

Lena - a Human Rights Defender

15 April :- No Stay, Court insists on proceeding with trial despite Appeal to the Court of Appeal

On 15/5/2014, Lena Hendry's lawyers applied for a STAY, an application to postpone the trial until the Court of Appeal heard her application to strike out the Charge. [As you may be aware, the High Court, on 11/4/2014, dismissed the application to strike out the Charge - and the Appeal to the Court of Appeal was made] See -11 April 2014 - What happened in court? Next Court Date:- Tuesday(15/4/2014)

Lena Hendry's dad underwent a surgery, and was in the Intensive Care Unit(ICU), and naturally Lena was with him and was not able to attend court on 15/4/2014.

Given this fact, the court granted did not begin with the trial, and fixed 16/5/2014 as the next date.

Below is a drawing by one of those in solidarity with Lena Hendry..

OMCT and FIDH calls you to action in defence of Lena Hendry

Malaysia: Dismissal of the motion filed by Ms. Lena Hendry to strike out the charges against her

​ New information

MYS 001 / 0713 / OBS 064.5

 Judicial harassment

Malaysia

April 14, 2014

The Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organisation Against Torture (OMCT) and the International Federation for Human Rights (FIDH), has received new information and requests your urgent intervention in the following situation in Malaysia.

New information:

The Observatory has been informed by reliable sources about the dismissal of the motion filed by Ms. Lena Hendry, Programme Coordinator of the human rights NGO Pusat KOMAS[1], to strike out the charges that were filed against her under the Film Censorship Act 2002 in relation to the organisation of a private screening of the documentary film called “No Fire Zone, the Killing Fields of Sri Lanka”[2].

 

According to the information received, on April 11, 2014, Kuala Lumpur High Court Judge Kamardin Hashim dismissed Ms. Lena Hendry’s application after ruling that the charges imposed a restriction reasonable and proportional against free speech. The Court found that the restrictions imposed by the Film Censorship Act were not in contradiction of Article 10(2)(a) of the Federal Constitution, which allows laws to impose restrictions on a person's freedom of speech in the interest of public security, order and morality.

The Judge also ordered the case to proceed in the Magistrate's Court. Meanwhile, Ms. Hendry’s counsel said he would appeal to the Appeal Court against the decision.

Background information:

In the evening of July 3, 2013, Pusat KOMAS, together with the KL & Selangor Chinese Assembly Hall Civil Right Committee (KLSCAH CRC), organised a private screening of “No Fire Zone” directed by British Director Callum Macrae. About 30 minutes after the start of the screening, about 30 officials from the Home Affairs Ministry, immigration, and police entered the Chinese Assembly hall and requested to check the film. The organisers negotiated with them to allow the screening to continue and enter after the screening was over.

However, after the screening, officials insisted on checking the identity cards of all participants before they left the venue. The KDN requested a copy of the film, which was provided by the organisers. They also ordered the organisers - Ms. Anna Har, a member of KOMAS Board of Director, Mr. Arul Prakkash, KOMAS Executive Director, and Ms. Lena Hendry - to go to the Dang Wangi police station. The three asked whether they were being arrested, to which the officers replied no. However, during their interrogation, they were informed that they were placed under arrest. They were questioned for almost three hours by the investigating team from the Home Affairs Ministry.

At about 2 am, the three KOMAS representatives were finally released on police bail after their statement was recorded. Reportedly, they were arrested under Section 6 of the 2002 Film Censorship Act.

On July 1, 2013, Ms. Lena Hendry had received a call from the Censorship Board of the Ministry of Home Affairs, who asked the organisers to stop the screening because the film had not gone under censorship. She had replied that the screening was private and upon invitation only.

Furthermore, there were also attempts by the Sri Lankan Embassy in Malaysia to stop the screening. They faxed a letter to the KLSCAH asking them not to screen the documentary.

On September 19, 2013, the Home Ministry and Attorney General Chamber (AGC) filed a charge against Ms. Lena Hendry under Section 6 of the 2002 Film Censorship Act, which says that no one should screen any film or related publicity materials that have not been approved by the Censorship Board. Judge Ashraf Razal Abdul Manan granted her bail of 1,000 ringgit (about 233 euros).

Subsequently Ms. Lena Hendry’s lawyers filed an application before the High Court challenging the charges against Ms. Hendry under the 2002 Film Censorship Act, on grounds that they violate the Federal Constitution.

If convicted, Ms. Hendry faces up to three years’ imprisonment and/or a fine between 5,000 ringgit (about 1,163 euros) and 30,000 ringgit.

Action requested:

Please write to the authorities in Malaysia, urging them to:

i. Put an end to any act of harassment, including at the judicial level, against Ms. Lena Hendry as well as against all KOMAS members and all human rights defenders in Malaysia;

ii. Ensure in all circumstances that KOMAS and its members as well as all human rights defenders in Malaysia are able to carry out their legitimate activities without any hindrance and fear of reprisals;

iii. Conform with the provisions of the UN Declaration on Human Rights Defenders, adopted by the General Assembly of the United Nations on December 9, 1998, especially:

- its Article 1, which states that “everyone has the right, individually and in association with others, to promote and to strive for the protection and realisation of human rights and fundamental freedoms at the national and international levels”, as well as

- its Article 12.2, which provides that the State shall “take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of his or her rights”;

iv. Ensure in all circumstances respect for human rights and fundamental freedoms in accordance with international human rights standards and international instruments ratified by Malaysia.

Addresses:

·       Dato' Sri Mohd Najib bin Tun Abdul Razak, Prime Minister, Prime Minister’s Office Malaysia, Main Block, Perdana Putra Building, Federal Government Administrative Centre, 62502 Putrajaya, Selangor, Malaysia. Fax: + 60 3 8888 3444, Email: ppm@pmo.gov.my

·       Mr. Ahmad Zahid Hamidi, Minister of Home Affairs, Ministry of Home Affairs, Blok D1 & D2, Kompleks D, Pusat Pentadbiran Kerajaan Persekutuan, 62546 Putrajaya, Malaysia. Fax: +60 3 8889 1613 /8889 1610, Email: webmaster@moha.gov.my

·        Tan Sri Hasmy Agam, Chairman of the Human Rights Commission of Malaysia (SUHAKAM), Tingkat 11, Menara TH Perdana, Jalan Sultan Ismail, 50250 Kuala Lumpur, 50250 Kuala Lumpur, Malaysia; Fax: +60 3 2612 5620; Email: humanrights@suhakam.org.my; hasmyagam@suhakam.org.my

·       H.E. Mr. Mazlan Muhammad, Ambassador, Permanent Representative of Malaysia to the United Nations in Geneva, International Centre Cointrin (ICC), Bloc H (1st floor), Route de Pré-Bois 20, 1215 Geneva 15, Switzerland. Fax: +41 22 710 75 01. Email: malgeneva@kln.gov.my

·       Embassy of Malaysia in Brussels, 414 A avenue de Tervueren, 1150 Woluwe-Saint-Pierre, Belgium, Fax: + 32 2 762 50 49. Email: malbrussels@kln.gov.my

Please also write to the diplomatic missions or embassies of Malaysia in your respective country as well as to the EU diplomatic missions or embassies in Malaysia.

***

Geneva-Paris, April 14, 2014

Kindly inform us of any action undertaken quoting the code of this appeal in your reply.

The Observatory, an OMCT and FIDH venture, is dedicated to the protection of Human Rights Defenders and aims to offer them concrete support in their time of need.

To contact the Observatory, call the emergency line:

• E-mail: Appeals@fidh-omct.org

·       Tel and fax OMCT + 41 (0) 22 809 49 39 / + 41 22 809 49 29

·       Tel and fax FIDH + 33 (0) 1 43 55 25 18 / +33 1 43 55 18 80

---

[1] Pusat KOMAS has existed since 1993 and it has been on the forefront of the advocacy for democracy & human rights in Malaysia through creative media. They have highlighted many human rights issues involving grassroots communities.

[2] The documentary details allegations of war crimes committed during the civil war in Sri Lanka in 2009.

Source: OMCT Website

11 April 2014 - What happened in court? Next Court Date:- Tuesday(15/4/2014)

11 April 2014

At the High Court before the Judge Yang Arif Tuan Haji Kamardin bin Hashim for the decision of Lena's application to strike out the charge against her. 

Edmund Bon and Joshua Tay represented the Applicant while Deputy Public Prosecutor Jean Sharmila represented the Respondent. 

Watching briefs were also held by the Malaysian Bar (Shalini Ragunath) and SUHAKAM (Siti Kasim).

After considering submissions from both Applicant and Respondent, the learned Judge dismissed the application and ordered for Lena Hendry's trial in the Magistrates Court to proceed. He held that section 6(1) read with section 6(2) of the Film Censorship Act 2002 is a reasonable and proportionate restriction to the freedom of speech and expression guaranteed in Article 10 of the Federal Constitution. 

In delivering his decision, he stated that section 6(1)(b) is not a provision to outlaw all types of films, however all films need to be assessed by the Censorship Board in order to protect public interest and order.

In light of this decision, Lena Hendry is looking to prepare and file a Notice of Appeal in the Court of Appeal by Monday. 

Lena Hendry will also make the application to stay the Magistrates Court trial pending the disposal of the appeal in the Court of Appeal on Tuesday(15/4/2014)

Next Court Date: - 15/4/2014(Tuesday)

Venue:- Magistrate Court No. 6 

Trial scheduled to begin - but Lena's lawyers will be applying for a stay pending the appeal to the Court of Appeal. 

Supporters in court which included Ivo Apostolov from European Union, and a lecturer from Nottingham College

It is important that we continue to show solidarity for Lena Hendry..