We are able to agree that Malaysia faces human rights challenges in the case of issues of governance, labour and the atmosphere. The purpose of competition, nevertheless, is how far do we have to go in addressing them?
Answering this query turns into notably difficult when “sustainability”, in enterprise converse, revolves primarily round compliance throughout the environmental, social and governance (ESG) framework. However as our not too long ago printed Nationwide Baseline Evaluation on Enterprise and Human Rights in Malaysia (NBA) report reveals, ESG doesn’t go far sufficient and may solely accomplish that a lot. Discussing governance, labour and the atmosphere by way of a human rights lens – although not completely – serves the sustainability agenda much better.
The NBA is a set and analysis of knowledge from numerous stakeholders on important points within the enterprise and human rights (BHR) panorama in Malaysia. We assessed the state’s present stage of implementation of the United Nations Guiding Ideas on BHRs 2011 (UNGPs), a framework that prescribes obligations for governments and firms to respect, defend and treatment abuses of human rights.
These are offered in three major chapters: governance, labour and atmosphere, with a complementary fourth chapter on particular points. Precedence areas for every chapter have been chosen by way of a literature evaluate and analysis of the quite a few stakeholder consultations held for this report, alongside an evaluation of how urgently the Malaysian authorities and companies want to deal with them.
Lastly, we supplied suggestions for the formulation of a Nationwide Motion Plan on BHR (NAPBHR), Malaysia’s first motion plan designed completely for enterprise and human rights issues.
Session suggestions: anxiousness and confusion
Whereas the consultations surfaced a wide range of reactions from companies, the frequent threads have been largely anxiousness and confusion over how and the place BHR suits into the sustainability image, and the way a set of recent or enhanced compliance guidelines might affect their backside traces.
Companies usually confuse ESG with BHR and wish to know if extra can be anticipated of them below the BHR framework. The brief reply is sure. Whereas ESG prescribes good practices and is essential, most of its measures should not couched in rights. Rights give rise to justiciable claims and empower victims and survivors to go to the courts. With out rights, firms don’t maintain any obligation and can’t be held accountable. Accountability mechanisms in ESG are nonetheless of their early phases, primarily centred across the identification of firms which might be accused of greenwashing or whitewashing, or downplaying the true penalties of their actions of their experiences. These measures are inadequate as they don’t adequately tackle points associated to basic human rights.
One other supply of confusion for sustainability practitioners is the connection between ESG and enterprise and human rights. They surprise if the bigger umbrella is human rights or ESG, and whether or not the overlaps imply compliance with both one is adequate. What was as soon as Company Social Duty (CSR), then the Sustainable Improvement Targets (SDGs), then ESG is now BHR, or as some would describe, ESG Plus. Not solely is human rights due diligence (HRDD) required, however the BHR framework calls for more practical stakeholder engagements and grievance mechanisms, as points should utilise a rights-based method. It elevates ESG requirements, which doesn’t sufficiently prescribe a rights dimension, and emphasises human rights accountability.
“
Whereas ESG prescribes good practices and is essential, most of its measures should not couched in rights. Rights give rise to justiciable claims and empower victims and survivors to go to the courts.
There may be additionally usually a false impression that human rights, from the attitude of enterprise, is proscribed to just one space: labour. Nevertheless, as evidenced by the revisions to the Common Normal of the World Reporting Initiative (GRI), disclosures on human rights-related impacts of enterprise operations are central to sustainability reporting and the way firms display accountability. The adjustments, which got here into impact on 1 January 2023, integrated expectations set out within the UNGPs and made human rights affect reporting relevant to all reporting organisations. The considering is that with growing rules for obligatory human rights and environmental due diligence, human rights have to be operationalised in all areas and never simply as a standalone intervention.
Limitations and misconceptions
Our consultations forged a highlight on the shortcomings of home regulation in the case of human rights. Companies identified that they have been already compliant with the regulation, which must be adequate. Nevertheless, Malaysian regulation and observe don’t meet worldwide human rights regulation and requirements, and are neither adequate nor ample. For instance, the Federal Structure prohibits compelled labour however as a result of Malaysia doesn’t outline compelled labour in the identical phrases as articulated by the Worldwide Labour Group (ILO) by way of its 11 core indicators, the hole ends in companies right here failing to stamp out fashionable slavery practices. With out a revision to the regulation, compelled labour will proceed to be a problem because the hole won’t ever be bridged.
Most of the bigger firms argue towards enhanced or obligatory due diligence necessities because the small and medium-sized enterprises (SMEs) of their worth chain wouldn’t have the ability adjust to the identical necessities. That is the flawed method of taking a look at it. Massive gamers ought to lead by instance, and assist convey on board their provide and worth chains. If necessities are made obligatory for the large gamers, then the SMEs can be taught and finally, by way of a phased method, be topic to the identical obligatory necessities. However some firms should not even keen to come back to the desk in the intervening time, as a result of there isn’t any driver.
Many companies additionally object to the dearth of frequent or uniform requirements to adjust to, making it tough to know what and the way a lot to do in the case of BHR. Some might, for instance, have a look at the GRI reporting requirements and work backwards from there as a result of reporting is what the regulators require. Though little effort is healthier than none, such a observe solely relegates the whole course of right into a box-ticking train.
Additional to that, current sustainability necessities, whereas commendable, focus an excessive amount of on reporting obligations. Regardless of some firms already exhibiting mature sustainability experiences, a lot of their very own sustainability workforce employees members should not conscious of what’s being reported and if what was reported is true. This occurs when reporting actions are outsourced to third-party consultants. The internalisation of sustainability practices is non-existent. As soon as uncovered, it will result in allegations of greenwashing and whitewashing.
Our report reveals why there’s an pressing must entrench human rights into Malaysia’s home legal guidelines and institutional and structural practices on governance, labour and the atmosphere, versus merely paying lip service to them.
Mainstreaming human rights
One key discovering we highlighted is the main structural hole within the regulation in the case of human rights in Malaysia. Our authorized system is, in some ways, outdated. Human rights should not expressly recognised within the Federal Structure and never justiciable per se below any regulation. These wanting to hunt justice for any rights transgressions are subsequently compelled to make use of a patchwork of legal guidelines to bolster their circumstances, however usually with little success.
We additionally must mainstream human rights in public administration and governance. Human rights must be embraced. Why, for instance, ought to we not think about a brand new Human Rights Act and a brand new Ministry of Human Rights and Justice (MHRJ)? They’re lengthy overdue.
With the NAPBHR, there have to be a greater method. BHR could be a device to keep up social equilibrium because it serves to stability out the facility dynamics between the federal government, enterprise and society on issues regarding human rights. In actual fact, it is going to be modern if the NAPBHR be made into greater than an govt decreed motion plan however a regulation in itself, and subsequently justiciable within the courts. This motion plan will likely be no completely different than the remainder if there isn’t any willingness to do extra. Voluntary measures can solely go thus far.
Sufficient time has been given to the federal government and firms to do extra for human rights. Will firms solely act when they’re publicly implicated, named and shamed? The NAPBHR should no less than impose on companies obligatory HRDD and set up efficient inner and exterior grievance mechanisms to treatment abuses within the identify of company accountability.
Conclusion
If I have been to summarise the thrust of the report suggestions in three phrases, it might be these “M”s: mainstream, obligatory, and marginalised (individuals).
First, we have to take authorized, coverage and administrative measures to include and mainstream human rights into our governance and legal guidelines. Second, we must always make sure issues obligatory, akin to human rights and environmental due diligence. Lastly, we should defend weak communities who’re marginalised, together with ladies, youngsters, individuals with disabilities, refugees, migrant employees, and indigenous teams.
We hope that the federal government and company Malaysia will take note of the report and think about our views. Our workforce stays dedicated to participating with rightsholders and stakeholders to advance this essential space of labor.
The NBA course of has allowed us to reimagine a brand new human rights-f riendly Malaysia, and the way we’re to attain that. We hope that by way of our report, we’ve in a small method supplied a template for that.
That is an edited and up to date model of the Briefing Notice within the Nationwide Baseline Evaluation on Enterprise and Human Rights in Malaysia (NBA) report. Edmund Bon Tai Quickly was the lead advisor for the NBA report. He’s additionally at the moment the consultant of Malaysia to the ASEAN Intergovernmental Fee on Human Rights and head of chambers (civil) at AmerBON Advocates.
