About this Violation
You may be illegally arrested and detained, due to your work on business-related human rights abuses.
You may be illegally arrested and detained, due to your work on business-related human rights abuses.
Being arrested means to be bodily confined by the police. Arrest and detention have often been used to intimidate and ultimately silence human rights defenders.
A unknown person might be involved with your arrest because he/she was the person arresting you, he/she illegally kidnapped you, or provided the police with wrong and incriminating information that led to your arrest. Those acts are prohibited by the Malaysian legal framework.
Different sections of the Malaysian Constitution protect you against illegal arrest and detention, as well as violence during arrest and detention:
In addition, the Penal Code and the Code of Criminal Procedure detail the process that should be followed in order for an arrest and detention to be lawful.
Warning: Before taking any of the steps listed below, you can strategically assess the risks involved with taking certain actions and make sure that you prioritise your physical and psychological safety and security.
Your rights during your arrest and detention include:
If any of your rights above are violated during your arrest or detention, you should raise the issue with the authorities and you can also file a habeas corpus petition.
If you are already arrested and detained and are brought before a Magistrate to decide on your remand, you or your lawyer can oppose the remand application by the police.
If you are already arrested and detained, you can ask for bail by the police, namely, to be released on condition that you appear at the Court whenever you are required to.
Note that not all offences are bailable. Bail can be asked for less serious offences. The Officer in Charge of a police station must grant bail for bailable offences if you are prepared to furnish a bail bond. In contrast, more serious offences are non-bailable. For those offences, bail cannot be granted if there is evidence that the person could be found guilty of an offence punishable by death or life imprisonment. However, in a few cases, persons charged with non-bailable offences might be granted bail.
Depending on the circumstances of your case, an unknown person might be involved to your illegal arrest and/or detention in the following ways, which are all penalised by the criminal justice system of Malaysia:
(a) An unknown person might be responsible for illegally detaining or confining you and depriving you of your liberty. This is a criminal offence pursuant to Section 359 and 362 of the Malaysian Criminal Code on kidnapping and abduction and you should report it to the nearest police station.
(b) An unknown person might have wrongfully arrested you. In Malaysia, it is allowed for private persons to arrest another without a warrant, if the offence committed is seizable and has been committed in their view. This means that a member of the public can arrest anyone who commits a serious offence in their presence. However, if that private person wrongfully restrained and confined you, they will be punished under the Penal Code (Sections 339 and 341 of the Penal Code on wrongful restraint and confinement).
(c) In addition, an unknown person might get involved in your illegal arrest if they provided wrong information to the police authorities that led to your arrest and detention. According to the Penal Code, it is a criminal offence:
* If an unknown person obstructs justice by wrongfully initiating criminal cases and making false statements against you (Sections 220, 177, 191- 200).
* If an unknown person institutes or causes to be instituted any criminal proceeding against you, or falsely charges any person with having committed an offence, knowing that there is not just or lawful ground for such proceeding or charge against that person (Section 211).
Whether the unknown person committed the offence under (a), (b) or (c) above, you should consider reporting the incident to the authorities. This can be done by
The responsibility for the offence against you lies with the person who perpetrated it.
Beyond the specific person, the business entity can also be brought before criminal courts, if the act of a specific businessperson can be imputed to the business entity and provided that the specific circumstances of your case so allow. This is because the Penal Code provides that every “person shall be liable to punishment under this Code” and Section 11 defines “person” to include “any Company or Association or body of persons, whether incorporated or not.” Therefore, in theory, business entities can be prosecuted for offences except for those that can only be committed by a human being (such as rape). However, practice is not so clear, unless the offence concerns corruption or environmental offences.
Lastly, you should be aware that the manager or director of a company can usually be held liable for the wrongdoings of the company, depending on the specificities stipulated in each respective law.
The police will investigate your case, interview witnesses and suspects and might ask you to give further statements. If there is enough evidence, the investigation officer will bring the case before the Deputy Public Prosecutor to decide on the charges. If there is not enough evidence the case will be closed. If the Prosecutor presses charges, the case will go on trial stage. The court will hear the prosecution’s case, examine the accused, and allow him to present their case. Then, it will make its judgment, either convicting the accused, if the case was proven beyond reasonable doubt or acquitting him/her for lack of evidence. The burden of proving the case lies with the prosecutor.
As a victim you are not allowed to file an appeal if you are not satisfied with the judgment of the court. This is a right of the prosecution and the accused. The only case that you might be allowed to file for appeal is if you have launched a private prosecution.
As a victim of the offence, you have the right to appear in court and participate in the criminal trial, by giving a statement on the impact that the offence had on you or your family, such as trauma or harm, economic loss or damages suffered by yourself or your family. Your statement will be taken into consideration in passing the judgment.
In criminal proceedings, Malaysian courts may award compensation to victims. Section 426 (1A) of the Code of Criminal Procedure requires the Court, to order the convict (or the parent or guardian, in the case of a child convict) to pay monetary compensation to the victim or the deceased victim’s family. Compensation is granted by the Court, upon application by the Prosecutor. In assessing the amount of compensation, the Court is empowered to hold an inquiry, and several factors must be considered including the nature of the offence, the injury sustained by the victim, expenses, and losses (including loss of income) suffered by the victim, and the convict’s financial capability to meet the compensation.
In addition, according to Article 438 of the Code of Criminal procedure, when someone causes your arrest without sufficient grounds, the Magistrate may order such person to pay compensation to the person wrongfully arrested.
If you are tortured during detention, see the section on [TORTURE].
Warning: Before taking any of the steps listed below, you can strategically assess the risks involved with taking certain actions and make sure that you prioritise your physical and psychological safety and security.
If you were illegally arrested by an unknown person, you can ask the state to investigate by filing a complaint to the Enforcement Agency Integrity Commission, the Public Complaints Bureau and/or the National Human Rights Commission.
If you are illegally arrested by an unknown enforcement officer because of your work on business-related human rights abuses, you can approach the Enforcement Agency Integrity Commission. Enforcement officers are mainly police officers, but it can also be officers of the immigration department, the anti-drug agency, the Labour Departments, and the Department of the Environment.
You can file a complaint if an unknown enforcement officer committed a criminal offence, failed to follow the law, or carried out an action that was contrary to the law, or unjustified, unreasonable, unjust, oppressive, or improperly discriminatory.
By way of indication, you can file a complaint if your case is like the ones below:
● Complaints are not taken properly by an enforcement officer, failure to record the details given by the complainant.
The Commission will investigate your complaint. If the complaint is of disciplinary nature, it will refer it to the appropriate Disciplinary Authority. If it is of criminal nature, it will refer it to the public prosecutor, whereas if it concerns corruption, it will refer it to the Malaysian Anti-Corruption Commission.
All complaints must be made in writing, by
* Going personally to the Commission
* Sending a letter or email to email@example.com
* Contacting the Operations Division (Complaints ) at 03 8880 5651/ 5625
* Filing an e-complaint form on the website http://www.eaic.gov.my/en/aduan/misconduct-complaint
If you were illegally arrested by an unknown public officer, you can approach the Public Complaints Bureau.
You can file complaints, when there is action by a state official that is unjust, not in accordance with existing laws and regulations, based on abuse of power, and when there is misconduct of public servants, delay or non-delivery of services, lack of public facilities and other inefficiencies. Indicatively, your complaint might refer to:
You can file your complaint by telephone, email, and online form at the following website: http://www.pcb.gov.my
If an unknown person has engaged in activity that violates your fundamental rights, you can file a complaint with the National Human Rights Commission (SUKAHAM). The National Human Rights Commission accepts and investigates complaints of human rights violations, unless there is a related court case pending or the case has been fully determined by the Court.
SUKAHAM, upon receiving your complaint, will communicate with the relevant government agency and/or the parties to the complaint, to enquire into the subject matter of the complaint. When the Commission identifies a pattern of human rights violations, it will start engaging in national inquiries, instead of examining the complaints one by one.
SUKAHAM also has the power to make appropriate recommendations, such as proposing new legislation, revisions of existing legislation or new policy measures or suggesting any remedies it deems necessary to the affected party or the complainants. However, SUHAKAM does not have the authority to enforce those recommendations.
The Independent Police Complaints and Misconduct Commission (IPCMC) Bill is being discussed. It will restrict the power and scope of the Commission and provide immunity and exemption to the police force with regards to investigations. Further, the police force would have discretion to not respond to any inquiries by the Commission on grounds of national security or the possibility of incriminating other police officers.
If you are a woman human rights defender, who has suffered harm through a wrong, unfair, or unlawful action of an unknown person, you can file a complaint to the Ministry of Women, Family and Community Development. The Ministry will investigate your complaint, consult with relevant agencies, and issue appropriate recommendations.
What are the specific types of complaints filed?
The types of complaints received by the Ministry of Women, Family and Community Development are about delays, lack of action, unfair actions, lack of public facilities, policy flaws and legal weaknesses, abuse of power/distortion, misconduct of public servants, failure to follow procedures, failure of enforcement and unsatisfactory quality of service.
You can submit a complaint by phone, present it in person, write a letter or fax. You also use the following website Government of Malaysia - Ministry of Women, Family and Community Development (spab.gov.my).
If you are victimised due to your work protecting environmental rights, you should consider informing the Director General of Environmental Quality, by filing a complaint.
You can submit your complaint online here DOE e-Complaint System.
If you belong to an indigenous group, you should be aware that the Constitution gives the Malays and natives of any of the States of Sabah and Sarawak, a “special position” in the country. Additional protection is offered by the Aboriginal Peoples Act 1954 and the Sarawak Land Code 1958. In Sabah and Sarawak there are also Native Courts having jurisdiction on matters of native law and custom.
Achieving justice and remedy for the violations that you suffered as a human rights defender working on business-related human rights abuses, can be a lengthy and difficult process. It may require a combination of patience and strategy, and you may have to call on a number of different resources to achieve your goal. A comprehensive approach may include using legal remedies together with other kinds of complementary strategies such as strategic campaigning, shareholder accountability strategies, grassroots mobilisation, coalition building or gaining media attention.
It can be overwhelming to think about all of these considerations right after an abuse has taken place. Before thinking about the strategies, you want to use, try to make sure you are both physically and mentally safe and strong.
Remember that you are not alone in this situation and that there are a range of organisations that can help you and provide you with immediate support in case of emergency, financial, legal and psychological difficulties. See Resource Hub.
The first thing you may want to consider is building a strategic campaign. A strategic campaign aims to exert pressure on the different strategic relationships of a business or state actor. To develop a strategic campaign, you should carefully analyse your situation and decide which actions will have the most positive impact for your case.
For example, you will have to decide whether you want to deal with your case publicly or privately, loudly or quietly, in a manner that takes into account the political and other sensitivities that exist in your country. The purpose of the strategic campaign is for you to get a clear picture of the situation, the direction you want to take your case and the concrete actions you can attempt to take to achieve this result.
This whole process will be demanding on your resources and your mental and physical health so do not hesitate to reach out and ask for help from organisations that are used to dealing with similar cases! There is no shame in doing so and they can provide you with valuable expertise. See Resource Hub.
To build a strategic campaign you and your collaborators can follow these five steps:
1- Identify your objectives and overall goal: You can do this by asking yourself questions such as What do I want to happen? What do I hope to achieve?
Your overall goal will be the long term and general outcome that you want to achieve. To reach this goal you will need to identify smaller steps and specific milestones that need to take place, these will be your objectives.
! When deciding on your objectives, make sure that they are SMART:
2- Take the time to do a policy analysis and identify your audience: You can identify the policies and regulations that need to change, the key actions and stakeholders who can influence decisions and understand the overall political context that will influence your overall goal. You will further need to identify the stakeholders that can help you achieve your objectives. For example, who are the decision makers involved in the issue? What are the power dynamics at play? You should understand why and how each audience you approach can play a role in reaching your goal or can hinder it. Do not forget, when considering actors that could hinder your goal, to be as specific as possible and write down all details you can find on them including their names and functions.
! Note that if some corporate actors can hinder your goal, other business representatives might help you achieve it! Businesses do not all have the same policies and attitudes when it comes to the respect of human rights and the environment. By interacting with business representatives and industry groups you might find valuable allies that can provide you with support in a variety of ways including testifying on your behalf, paying for bail and fines, or speaking up on your behalf.
3- Identify your strengths, weaknesses and your message: It will be helpful for you to reflect on your internal strengths - skills, knowledge, resources, past experience - and weaknesses - missing networks, capacity for lobbying, contacts in the media or funding. Once you have identified these, you can search for opportunities that exist around you and will enable you to tackle your weaknesses and achieve your objectives. You should further consider the threats that could prevent you from achieving your objectives by asking yourself who are your opponents? Is there a negative political climate around your objective? Identifying them early will enable you to minimise the damage and safety risks they can present.
Once you have reflected on your strengths and weaknesses, you will need to identify what your audience needs to hear and present your message in a persuasive and appealing way. At their core, your messages should be the same, however, depending on the audience you will target, you will need to adapt the way they are framed. Most of the time, advocacy messages have two major components: (1) a calling for what is right and (2) a calling for the audience’s self-interest. You can find different methods to develop advocacy messages by using the key words “advocacy message” and “effective” on google.
4- Identify your tactics and activities: Depending on your situation and objectives, you will have to use different strategies and tactics to reach your goal. To choose the appropriate tactics for you to use, you can develop a ‘results chain’. The chain will start with your overall goal and outline the small steps you will need to take to get there. In your chain you can describe the assumptions you are making about the impact of the activities you plan on doing. This will help you reflect on your logic and might show you missing activities. It will further help you understand the kind of resources, be it financial or volunteers, that you will need to put your campaign into action. There are various organisations that you can reach out to for financial support. See Resource Hub.
A few examples of activities include one-to-one meetings with high level representatives, the organisation of workshops and conferences, the drafting of a letter to international civil servants, a mass participation event engaging members of the community, social media posts or petitions.
5- Monitor and Evaluate: Finally, you want to make sure that you are keeping track of the efforts you are putting into your campaign to ensure that they are working. You will also want to organise meetings to monitor the campaign and make sure it is going in the direction you want.
Grassroots mobilisation is about bringing together individuals - in your district, region, or community - to influence a specific outcome. It is one of the key elements in successful campaign strategies. Grassroots mobilisation can be highly effective, as we have seen with the #SaveAru movement, because it uses collective action at a local level to influence outcomes at the national level. When every member of the community is participating in ways that they can, and are equally responsible and invested in the cause, the movement is truly powered by collective leadership. The costs of the movement are further distributed between all members of the community and thereby become more affordable.
To build grassroots mobilisation, you and your collaborators can follow five simple steps:
1- Identify the cause you want to address and make a plan of action;
2- Find supporters and volunteers to join your campaign;
3- Reach out and partner with local organisations and community leaders;
4- Implement your plan of action; and
5- Regularly evaluate your progress.
! Do not forget that, when it comes to mobilising members of a community, listening and understanding is more important than influencing and persuading. Having several short conversations will be more efficient than a one-off long speech to a general audience!
To get started, you should identify the cause you want to address
(1). The problem that you want to tackle most probably has a root cause. For example, it can be the lack of respect for human rights and the environment by a company which operates in proximity to your village and has threatened you; the absence of legislation by the government to protect people defending the environment; or the inefficiency of local government officials to implement a law, among other potential root causes. You need to identify the root cause you want to tackle so that you can clearly define the actions and steps you want to take to resolve the issue. Defining the outcome, you are looking to achieve will also be crucial to give your movement a clear direction.
Once you have identified the cause you want to address, you can start creating awareness about your campaign and get interest from individuals in the community
(2). Communication will play a key role here and you can use different approaches such as door-to-door canvassing, face-to-face conversations, emails, phone calls or social media to reach as many community members as possible. Having a campaign website or a Facebook page can be a useful tool to speed up this process and will make you gain important visibility online! It will further constitute a good opportunity to start building the next step by building a list of potential partner organisations.
Using your website and the networks of members from the community you can approach like-minded local organisations and community leaders. See Resource Hub.
(3). To reach out to them you could offer to give a short presentation about your campaign during their events or simply provide your help during their rallies to get to know like-minded people and talk about your campaign. Usually, civil society organisations have dealt with or assisted defenders in similar contexts in the past. They can share their valuable experience with you, guide you on what to do, explain the law and your rights, guide you on where to find support and identify pro bono lawyers that can help you plead your case or provide support in building an advocacy campaign.
! You should not ignore community leaders! Community leaders can be valuable allies that you can collaborate with to convey important messages of your campaign. If a community leader endorses the changes and propositions you raise, they will be more likely to be accepted and followed by the community and your movement will gain traction. Examples of community leaders that can help you are religious leaders, local political office holders or village figureheads.
Once you have built a solid basis of supporters you can start implementing your plan of action
(4). You can take a variety of actions as part of your plan including rallies, outdoor events, in-house groups, training sessions, organising for a group of volunteers to exchange with the local representative or staging a demonstration. No matter the activity that you choose to conduct, the key to success will be having successful communication. You can keep your supporters up to date on actions conducted through SMS, WhatsApp, and encrypted apps such as Telegram and/or post your announcements for events on your campaign website and Facebook page. Do not forget to communicate with your organisers and volunteer team to make sure everyone has the same information including the date, time, and place of the events.
During your campaign, you can organise regular meetings with your supporters to evaluate the success of your actions
(5). This will enable you to reflect on what went well and what did not and give you avenues for improving your upcoming events. At the end of the campaign, it will also enable you to see if you have reached your objectives.
Reaching out to other organisations and talking about your case will give you the opportunity to build coalitions. A coalition is a temporary alliance of individuals, groups or organisations that want to achieve a common goal. Forming a coalition with other organisations that have similar values, interests, and goals as your own will allow you to combine your resources and thereby have more impact than if you acted alone. It can be of great help to shift the balance of power and increase the impact of each of your organisation's efforts. Actions taken by the coalition can be focused towards bringing attention to your and other human rights defender cases in the media, requesting for a motion filed by lawyers to be considered or request the international community to act.
To successfully build a coalition you need to take a series of steps.
Another complementary strategy for your case may be to gain visibility and attention by getting media coverage. Before deciding if you want to use this strategy, you should ask yourself whether you want your case to be publicly known and talked about or if you would rather go about, it quietly. Gaining media coverage can play a pivotal role in presenting your case, promoting it in public debate and positively shaping public opinion in your favour. However, this may expose you to further retaliation, as companies may use strategic lawsuits against public participation (See Section on SLAPPs) to try to silence you. For example, the company could bring a defamation suit against you, the journalist who interviewed you and/or the organisation that published the article. Importantly, you must be careful that the journalist does not reveal your current location so as not to compromise your safety.
To attract media coverage, your story should be prepared in such a way as to catch the attention of readers. You can do this by highlighting why your organisation exists, how important your work is to society and by providing details about the abuse that you have suffered. If you can, try to link your story to an issue that is currently talked about in the public space as this will be more likely to interest the media. Finally, if you can show how your story affects other people and has an impact on wider society, this will increase the interest of newspapers.
Once your story is ready, you can use social media to promote it by publishing blog posts, Instagram stories, Facebook posts and/or tweets. This will enable you to gain public attention and establish your cause before getting traditional media interested in what you have to say.
If you want the attention of mainstream media, you can collaborate with other national and international organisations to contact reporters. You can reach journalists by email, through their social networks (such as LinkedIn, Facebook or Twitter) or through partner organisations. You will have a better chance of getting your interview request accepted if you choose journalists who are used to covering the same kind of story as yours.
! Be aware that journalists can receive a lot of requests so keep your emails short and to the point!
If you don't get a response to your first contact request, you can follow up by tweeting the reporter or trying to contact them by phone. Don't get discouraged as getting media attention can be a long process during which you may end up sending your story to twenty journalists before one responds.
When a journalist becomes interested in your story, they will most likely want to talk to you in person. To make sure you are well prepared for the interview, keep in mind three key points you want to make and practice answering questions with a colleague.
Once the interview is over, do not forget to thank the journalist for his or her time. Following the publication of the article, you can forward it to regional or national newspapers thereby gaining exposure and/or circulate it among your partner organisations.
Although business-related human rights abuses find corporate actors at the heart of the human rights abuses, you should not forget that businesses and industry groups do not all have the same policies, attitudes, and views when it comes to the respect for human rights and the environment.
You might want to look for allies in the private sector by reaching out to business representatives and industry groups and explain the issues you are facing. Private actors might become valuable allies who can provide you with support in a variety of ways including by testifying on your behalf, paying for bail and fines, or speaking up on your behalf.
Equally important is to make your case known at international level.
National and international non-governmental organisations are allies in your strategic campaign and have a fundamental role to play in channelling information to relevant institutions abroad. One of their main tasks is to submit the so-called shadow reports to international bodies or during the Universal Periodic Review Process. Those reports analyse how and if the government is realising human rights at the national level and provide the necessary background information to international organisations. In turn, if the shadow reports reveal information on serious and systematic violations of the rights protected by the conventions in the country concerned, international institutions can initiate inquiries or visits to the territory of a State Party. By making your case known to NGOs and INGOs, it can be included in their shadow report. Although this will not give you a tangible remedy, you will have added your brick to the wall of human rights in your country.
You can also bring international attention to your case through the various organisations worldwide that work to protect human rights defenders - including Frontline Defenders, Protect Defenders and Peace Brigades International. You can register your case with one of them, and they will identify the best ways to support you internationally. Be aware that they may publish something on their website or link you with other victims or experts worldwide. If your case is widely known, the offenders might hesitate to retaliate against you in the future. There are also many organisations that work on business and human rights issues that can share legal resources with you, both domestically and internationally. Most importantly, both kinds of organisations can direct you on where to find funding and donors to continue your legal case and to propose other resources necessary for your work as a human rights defender.
You can also contact political figures to draw attention to your case. For example, you can ask a foreign diplomat - by contacting the foreign ministry of the country in question or the embassy - to listen to your story, to come to your trial or simply to have a photo taken with you. This will show your abuser that your case is being taken seriously at the international level and may make them think carefully about retaliatory actions in the future.
If you are uncomfortable with contacting diplomats of foreign countries, you can contact international civil servants instead. International civil servants are not linked to a specific country but rather to an organisation. To contact them, you can look up the offices of OHCHR, UNDP or the ILO in your country. These organisations often organise informal events such as consultations and webinars during which you can have the opportunity to raise your concerns and build a support network.