Malaysia should move swiftly to strengthen its proposed National Action Plan on Business and Human Rights by ensuring that its key provisions are enforceable, a coalition of three Indigenous, human rights, and environmental groups said today in responding to the Malaysian government's draft plan. Priorities should include meeting Malaysia's domestic and international commitments to halt and reverse deforestation, and to mitigate climate change while respecting rights.
The draft plan describes proposed reforms to address corruption, labor, and environmental issues that the Prime Minister's Office will work to advance through legislation and government policies, as well as proposed measures businesses are encouraged to take to align their practices with international human rights standards. As it stands, although the plan proposes multiple positive measures to advance these goals, without corresponding legal reforms the commitments risk being unenforceable.
"We have a long history of voluntary corporate commitments providing no real protections to environmental and Indigenous rights defenders or their territories," said Celine Lim, manager of Sarawak-based Indigenous organization SAVE Rivers. "We need strong laws, we need tribunals to enforce those laws, and we need real penalties for companies when they violate those laws."
SAVE Rivers says that in the past four decades, many Indigenous communities across Malaysia were left destitute as logging and palm oil companies took over their territories with impunity. Recently, SAVE Rivers faced judicial harassment from a powerful timber company for reporting on allegations of logging in Indigenous territories without communities' consent.
The draft national plan commits the government to "implement" the United Nations Declaration on the Rights of Indigenous Peoples. Malaysia should go further by adopting federal legislation to enable enforcement, the group said. Such legislation should codify Indigenous peoples' the right to free, prior, and informed consent in Malaysian law and include state-level measures to oversee its robust enforcement.
Malaysia should also ratify the International Labor Organization's Convention No. 169 on Indigenous and Tribal Peoples. The state of Sarawak, which, unlike the rest of Malaysia, does not require public participation in the preparation of social and environmental impact assessments, should mandate that practice.
In a significant advance, the draft indicates the prime minister's support for federal laws on freedom of information and for the protection of whistleblowers from judicial harassment.
A freedom of information act should ensure public access to environmental information and in particular to communities affected by business activities and government-sponsored projects. Further, the public should readily have access to social and environmental impact assessments, maps of land concessions, surveys of Indigenous territories, and aerial photographs that are often used in Malaysian courts, the coalition said.
A bill to protect whistleblowers from judicial harassment should prohibit vexatious, malicious, or frivolous legal actions against journalists and rights defenders, commonly known as Strategic Litigation Against Public Participation (SLAPP). Such lawsuits can be leveraged as tools to suppress free speech or discourage public participation in matters of significant public interest.
As the UN special rapporteur on rights of freedom of peaceful assembly and of association recommended, countries should enact legislation allowing early dismissal of such suits with an award of costs, and other measures to those affected to deter and penalize abuse. The government should also repeal Malaysia's criminal defamation law, which can be used a legal tool to harass rights defenders and journalists.
"In the past, we've seen promising commitments fail due to weak enforcement," said Jettie Word, executive director of The Borneo Project, a nonprofit group that advocated for the rainforest and the rights of Indigenous peoples in Sarawak. "Their success depends on strong implementation and enforcement."
Malaysia's Constitution gives state governments jurisdiction over the management of land and forests. But, the federal government regulates industry. In one example, the Ministry of Plantation and Commodities requires all oil palm plantations and palm oil mills to obtain certification under the Malaysian Sustainable Palm Oil standard. The standard requires consultation with Indigenous peoples and prohibits conversion of natural forests to oil palm plantations after 2019. The ministry also capped oil palm plantations to a total of 6.5 million hectares nationwide.
The coalition urged the federal government to establish a nationwide cap on timber plantations, consistent with its goal of keeping 50 percent of land under forest cover and ensure that the cap is rigorously enforced. Additionally, it should mandate that all concessions must be accredited under the Malaysian Timber Certification Scheme. These measures could be incorporated in the plan and executed by the Ministry of Plantation and Commodities. Timber plantations will be the top driver of deforestation in Malaysia, according to an analysis by Malaysian environmental nonprofit RimbaWatch, unless a change of policy determines otherwise.
The federal government should work with individual states to create mechanisms for holding companies accountable, including revocation of permits for offenders and binding moratoriums on new permits.
"Malaysia has a duty to protect human rights, including by legislating to regulate businesses and to mitigate climate change," said Luciana Téllez Chávez, senior environment and human rights researcher at Human Rights Watch. "The federal government's Zero Draft is a positive step forward for policy in all these areas, and we are urging the Prime Minister's Office to go further to ensure these commitments translate into tangible improvements for communities on the frontlines of deforestation."
The coalition includes the following groups:
SAVE Rivers, The Borneo Project, Human Rights Watch and KERUAN
