Background

This “Facilitator’s guide: Judges, prosecutors and legal aid practitioners’ training on forced labour” aims at providing a training package for legal practitioners who may be exposed to forced labour in the course of their duties in Malaysia. This joint initiative by the ILKAP and the ILO was based on the premise that well-trained criminal justice actors are key to an effective response to forced labour and play a crucial role in countering this crime.

The ILO Forced Labour Protocol that supplements Convention No. 29 highlights the important role that judges and lawyers can play in providing protection to victims and preventing them from falling back into a situation of vulnerability and exploitation. Article 4 requires governments to ensure that all victims, regardless of their presence or legal status, have access to appropriate and effective remedies.

The legal aid service providers, judges and prosecutors not only have the responsibility to punish offenders but must do so while respecting and protecting the human rights of, and addressing the needs of victims of forced labour. There is a greater possibility that victims would freely consider participating in the criminal justice proceedings – thus enhancing effective criminal investigations – when their rights are protected and respected.

Additionally, this material was developed to raise awareness on forced labour as a serious crime and a violation of human rights, and to enhance the capability and skills of criminal justice and legal practitioners to adequately detect forced labour cases and utilise relevant legislation in line with international standards that Malaysia subscribed to.

The training package comprises of eleven modules and is fully in line with the latest international, regional and national standards and policy developments in Malaysia. A multi-disciplinary approach was undertaken to form the basis of this training: from desk research, legal analysis, case studies and key stakeholder interviews.

It takes into consideration the latest trends on forced labour as well as good practices to combat this crime. Appendix 1 contains a directory of services for victim support should case referral be required.

Tips for facilitators

1. The Facilitator’s guide is merely a guide. The training modules are general in nature; therefore, it is important to adjust the approaches and contents in a way that respond to your audience and the particular context. The participants may represent a single category of participants (for example all legal aid service providers) or a mixed group. Your first task as a facilitator will be to assess the make-up and needs of the course participants and use the many practical exercises available in the Facilitator’s Guide, supporting documents and additional handouts to put together the course that will suit them best. This will enhance overall learning experience for the participants.

2. The Facilitator’s guide contains a number of recommended readings – Conventions, legislation, guidelines, publications, among others – which facilitators need to be acquainted with. These resources could be useful in preparing the classroom sessions. You may wish to download and print out extracts from some of these and use them as handouts in the classroom.

3. Facilitators should encourage participation and interaction among participants and engage them with questions, discussions, group work and practical exercises. Facilitators should try to maximise the knowledge available in the classroom including those of legal aid service providers, prosecutors and judges. Some exercises may benefit from forming diverse groups to facilitate diverse perspectives whereas in others it may be valuable for participants to take on roles that are different from their real-life professions, i.e. judges to role play as prosecutors so they can get a better idea of victim psyche through this form of engagement.

4. Facilitators should be mindful of the timing but also allow some flexibility. If, for example, interesting discussion appears in a training session, let the discussion flow, and adjust the next activities or modify the method of delivery.

5. The timings suggested for each part may be modified as it suits the needs of the group. Facilitators may modify the timing, in particular if the make-up of the participants suggests that some topics or exercises could be appropriately shortened or lengthened.

Structure of the guide

Module 1: The legal framework and definitions, describes the instruments that can be used to investigate, prosecute and adjudicate forced labour cases. Specific national laws that criminalise forced labour and related crimes are outlined alongside international standards. This module also tackles the differences between forced labour, sub-standard working conditions, and human trafficking.

Module 2: National, regional and global context of forced labour, provides the national and global context of forced labour, victimization and victim protection.

Module 3: Important concepts and indicators of forced labour, provides conceptual clarity on important concepts relating to forced labour such as debt bondage, psychological coercion and other indicators of forced labour.

Module 4: Use of forced labour indicators, provides guidance on how to use indicators to assess situations of forced labour.

Module 5: The victims of forced labour, provides background and the needs of victims of forced labour and discusses the challenges faced by law enforcement to investigate, prosecute and adjudicate forced labour.

Module 6: Ethics of working with people in vulnerable situations, provides background on traumatic experiences and their impact to the victims of forced labour and discusses the significance of risk assessment. Furthermore, practical guidelines and interview techniques are recommended.

Module 7: Criminal proceedings and victims’ rights, describes the criminal proceedings and in this context the rights of victims that must be respected throughout.

Module 8: Civil proceedings, provides background on the use of civil proceedings as an alternative avenue for compensation as well as practical challenges of pursuing civil claims.

Module 9: Corporate liability, describes the possibilities and challenges in holding corporates accountable for forced labour and human trafficking violations under both international and national standards.

Module 10: Using the anti-money laundering framework, describes the importance of using financial investigation and the anti-money laundering framework as useful tools in identifying and analysing financial transactions associated with human trafficking and forced labour. Furthermore, specific anti-money laundering law is outlined.

Module 11: Useful case law, covers a range of national judicial decisions on forced labour and jurisprudence from different jurisdictions to familiarise users with the growing body of case law on forced labour.

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