Improved human trafficking record - don't celebrate yet

Malaysiakini
by Andrew Khoo

 COMMENT As widely expected, the Malaysian government took great delight in being upgraded in the Trafficking In Persons Report (TIP Report) for 2010 which was released on June 14.

This is an annual report prepared by the United States' State Department on the situation of trafficking in persons in countries around the world, and assesses the seriousness of governments in their commitment to addressing this world-wide problem.

Contrary to the report in one English-language newspaper on June 15, Malaysia did not rise to Tier 2 in the TIP Report. Malaysia moved from the bottom rung, Tier 3, to the next rung, Tier 2 Watch List.

Amongst the Association of South East Asian Nations (Asean) members, Malaysia left Myanmar (Tier 3) and joined Brunei, Lao PDR, Singapore, the Philippines, Thailand and Vietnam on the Tier 2 Watch List. Cambodia and Indonesia are on Tier 2.

We should not break out in celebration yet. The TIP Report may be said to be very guardedly optimistic, even apologetically so, about Malaysia's improvement.

The TIP Report explains Malaysia's upgrade thus: "The government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Because the assessment that the government had made significant efforts is based in part on its commitments to undertake actions over the coming year - notably greater implementation of Malaysia's anti-trafficking law against labour trafficking - Malaysia is placed on the Tier 2 Watch List."

The TIP Report expects the government's promise of greater commitment to address human trafficking to evidence itself in: increased investigations and prosecutions of labour trafficking offences and identification of labour trafficking victims; increasing efforts to prosecute trafficking-related corruption by government officials; and greater collaboration with NGOs and international organisations to improve victim services in government shelters.

Still a laggard

It is clear to anyone who takes the time to read the report that Malaysia is still a laggard in terms of complying with even the minimum standards for the elimination of trafficking. In the event that greater implementation of Malaysia's Anti-Trafficking In Persons Act 2007 is not undertaken in the coming year, especially in the area of labour trafficking, Malaysia will swiftly return to Tier 3.

However, even in the three key results areas mentioned, the observations are not positive. The TIP Report states the government initiated 180 trafficking-related investigations and filed 123 charges against 69 individuals. Yet only three sex trafficking offenders were convicted.

A reading of local newspapers will show that a number of cases were thrown out by the courts for lack of evidence.

A case against five Thai nationals caught trafficking persons for the fishing industry remains pending. Five Malaysian immigration officials were arrested for alleged involvement in a trafficking ring that took Burmese migrants to Thailand for sale to trafficking syndicates, yet criminal charges under the Trafficking In Persons Act 2007 have only been filed against one officer and even that case is pending.

While NGOs reported several potential labour trafficking cases, the authorities did not report any related arrests or investigations. The TIP Report also indicated that collusion between police and trafficking offenders sometimes led to offenders escaping arrest and punishment. But no officials were convicted of trafficking-related complicity.

Minimal progress made

The TIP Report says the government made minimal progress in protecting victims of trafficking. Efforts to identify and protect trafficking victims remained inadequate.

It acknowledged that the Women, Family, and Community Development Ministry ran two trafficking 'shelters' for women and children and opened a third in July 2009. It also acknowledged that in 2009 the government opened its first two shelters designed to house trafficked men.

However all these shelters detains suspected and confirmed foreign trafficking victims for 90 days until they are deported to their home countries. The government's policy of detaining trafficking victims against their will, serves as a disincentive to victims bringing cases to the government's attention.

The TIP Report also pointed out that government shelters were like immigration detention centres. Victims were denied basic freedoms, were not provided medical care, psychological support or trained victim counsellors.

Some victims were locked in rooms within the shelters. NGO trafficking shelters provide resources that government ones do not, but the government does not provide financial assistance to NGOs, and requires all identified victims to reside in its own shelters.

While the Trafficking In Persons Act 2007 provides immunity to victims of trafficking against illegal entry, unlawful presence and possession of false travel documents, victims continue to be detained and deported.

They are treated no differently than illegal immigrants, and the government deports them after they have provided evidence to prosecutors.

Victims are required by law to assist in the prosecution of trafficking offenders, but the lack of victim protection or any incentives for victim assistance in investigations and prosecutions significantly impedes successful prosecutions. Some unidentified victims, including children, end up being processed as illegal migrants, and are held in prisons or immigration detention centres prior to deportation.

The government does not offer alternatives to deportation to their home countries, where they may face hardship or retribution. While victims may file a civil suit against their exploiters, they cannot legally work while their case is being considered. This discourages any legal action.

Outlook not encouraging

The outlook for 2010-2011 does not look encouraging. Included in the TIP Report on Malaysia were the following observations:-

1. A significant number of women are recruited to work in Malaysian restaurants and hotels, but subsequently are coerced into Malaysia's commercial sex trade;

2. Malaysian labour outsourcing companies recruit excess workers, who are then often subject to conditions of forced labour. Corruption plays a role in trafficking of foreign migrant workers, particularly to the authorising of excess recruitment by Malaysian outsourcing companies, despite officials assuring that the practice had been reduced by regulations in force from July 2009 that requires outsourcing companies to demonstrate the need for each worker recruited;

3. Migrant workers in plantations, construction sites, textile factories and domestic workers continue to experience restrictions on movement, deceit and fraud in wages, passport confiscation and debt bondage, which are indicative of trafficking;

4. Some Malaysian employers do not pay their foreign domestic workers three to six months' wages in order to recover charges by recruitment agencies, which makes them open to trafficking;

5. The People's Volunteer Corps (Rela) continued to conduct raids targeting illegal migrant communities, detaining refugees, asylum seekers and victims of trafficking along with allegedly illegal migrants. Authorities do not take criminal action against Rela volunteers who physically threaten and abuse migrant workers and extort money from them, despite reports of such abuses.

The TIP Report does highlights a few positive developments. In February 2009, Malaysia became a party to the 2000 UN TIP Protocol, but with reservations. In November 2009, the government launched an anti-trafficking public awareness campaign that included advertisements in print media, and on radio and television. In March 2010, the government launched a five-year action plan to combat trafficking.

Overall, the TIP Report on Malaysia makes for sad reading, and leaves a lot to be desired in terms of government action. Notwithstanding Malaysia's upgrade, there is nothing much to celebrate.

Andrew Khoo is Chair of the Human Rights Committee of Bar Council Malaysia but writes here in his personal capacity.