This article first appeared in The Edge Malaysia Weekly on November 18, 2024 - November 24, 2024

The National Baseline Assessment on Business and Human Rights in Malaysia (NBA), which was published in August, highlighted the state of human rights in the country and what should be done to address the challenges.

One solution highlighted by Edmund Bon Tai Soon, the head of chambers (civil) at AmerBON, Advocates and lead consultant for the NBA, is the establishment of a ministry of human rights and justice (MHRJ) to mainstream human rights issues in all government departments.

“At the moment, the human rights portfolio only comes under a government agency, which is the [Legal Affairs Division] under the Prime Minister’s Office, but they are short-staffed and under-resourced, and yet they are supposed to do so many other things,” says Bon.

This is one of the key recommendations from the NBA, which has been in the works since June 2023, outlining what all stakeholders can do to address human rights violations in business activities.

The report gathered data — through consultations and focus group discussions -— from more than 400 participants and informants from various governmental agencies, companies, industry associations, civil society organisations and impacted communities. 

These findings and recommendations will be considered in the National Business and Human Rights Action Plan 2025-2030 (NBHRAP) that is set to be completed this year.

The NBHRAP outlines priorities and actions the government should adopt to support the implementation of international, regional or national obligations and commitments on business and human rights.

Unlike other assessments covering the topic of environmental, social and governance (ESG), the NBA is the first in Malaysia to focus on business and human rights (BHR).

The goal was to assess the legal and policy gaps in the implementation of the United Nations Guiding Principles on BHR (UNGPs), the authoritative standard for states and businesses, in Malaysia by documenting the harmful impact business operations have on human rights and identifying issues affecting vulnerable communities.

Several violations were highlighted in the NBA, such as the exploitation of migrant workers, as well as failing to disclose relevant information, leading to allegations of forced labour and potential misrepresentation of ESG efforts.

“This report is the first time it is being done based on the guiding principle of business and human rights. So we not only have recommendations for the state, which may take time to implement, but we have recommendations for companies that they can implement immediately,” says Bon.

The NBA holds 173 recommended actions for both the government and businesses. Of these, Bon highlights a few recommendations based on three focal points: mainstreaming, mandatory and marginalised.

The establishment of an MHRJ falls under “mainstreaming”, a recommendation that Bon remains optimistic the government will consider in the upcoming NBHRAP.

Another is the need for a Human Rights Act due to the limitations of the Human Rights Commission of Malaysia (Suhakam) Act 1999, to create a clear and updated national definition of human rights.

“The Suhakam Act allows Suhakam to only consider international standards as and when they are consistent with the Federal Constitution,” says Bon.

The issue with this is that the term “human rights” is not in the constitution, with rights like freedom of expression and religion being classified as fundamental liberties. This lack of a clear definition has led to a general misunderstanding.

Under “mandatory”, Bon looks to introduce law amendments to make reports on ESG and business practices mandatory, such as human rights and environmental due diligence. An example of this is for the Business Review Report to include ESG performance, which is currently done voluntarily.

“So the Business Review Report allows directors to annex it to show what they have done in terms of ESG. But as we have shown in the report, there were very few of these reports being filed,” says Bon.

Making due diligence reporting mandatory is a key way to address this. Bon suggests implementing it in phases, making it compulsory for larger businesses first, before going down to the small and medium enterprises (SMEs).

“We want the big, publicly listed [companies] to be the leaders, not use the SME excuse to be a reason why they shouldn’t be doing it,” says Bon.

The last focal point “marginalised”, focuses on protecting marginalised communities such as refugees and foreign workers, as well as the Orang Asli and Orang Asal.

A key component of this is the implementation of anti-strategic lawsuits against public participation (anti-SLAPP) legislation. SLAPP is when a whistleblower tries to complain about an organisation’s wrongdoing or corruption, but is hit with a police report or is sued for defamation, something that marginalised groups are often victims of.

Anti-SLAPP is something countries all around the world are adopting. Bon observes that certain states in the US and Europe are adopting legislation where the court can strike out a court case if it believes the lawsuit was made just to silence someone in bad faith.

Bon admits that while some of the issues in the report, like companies not performing their voluntary due diligence, are not new, he says the recommendations are something that government and businesses can act on realistically.

In working with the organisations involved, one of the causes for these gaps in human rights implementation, Bon notes, is misunderstanding and low level of awareness of what human rights are in a business or ESG sense. This leads to mandatory compliance feeling like a chore, as they are forced to follow rules without knowing why they must be followed in the first place. Bon observes how some businesses do not consider diversity, equity and inclusivity to be under human rights, or think that human rights in ESG only cover labour rights.

“So [some] think that human rights are only that, when human rights also cover corruption, privacy, Orang Asli rights and torture [among others],” he says.

This level of awareness is evident in the companies that were willing to take part in the NBA. Many SMEs were not interested in taking part, while the bigger companies that were already leaders in ESG were willing to participate, such as the chambers of commerce, Federation of Malaysian Manufacturers and multinational corporations.

The bright side of this was that these larger companies would then bring their supply chains into the roundtable discussions, thus involving Malaysian SMEs.

Because of this low understanding of human rights, Bon sees the socialisation of human rights through government agencies and the push for mandatory due diligence as key. The report outlines hundreds of recommendations, but he is satisfied even if a few get picked up for the NBHRAP.

“Even if 50% or 30% of the key recommendations are adopted in the National Action Plan, I think it’s a success for us because it’s like putting out a laundry list so that we don’t forget … So even if 25% or 50% make it, that’s good, then we can monitor it. Then [for] the rest of the recommendations, we can find other avenues for advocacy, but at least it’s there,” says Bon.

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