Malaysia
is a destination and, to a far lesser extent, a transit country for
men and women trafficked for the purposes of sexual exploitation and
forced labor. Collectively, as many as several thousand women from the
People's Republic of China, Indonesia, Thailand, Philippines and
Vietnam are trafficked to Malaysia for commercial sexual exploitation.
Additionally, some economic migrants from countries in the region who
work as domestic servants and as laborers in the construction and
agricultural sectors face exploitative conditions in Malaysia that meet
the definition of involuntary servitude.
THE CORRIDORS OF POWER
Raja Petra Kamarudin
UNCLAS SECTION 01 OF 13 KUALA LUMPUR 000372
SENSITIVE
SIPDIS
DEPT FOR G/TIP, G, INL, DRL, PRM, IWI, EAP/RSP
E.O. 12958: N/A
TAGS: PHUM, KCRM, KWMN, SMIG, KFRD, ASEC, PREF, ELAB, MY
SUBJECT: MALAYSIA SIXTH ANNUAL TRAFFICKING IN PERSONS REPORT
REF: A. STATE 3836
B. 05 KUALA LUMPUR 3792
1. (SBU)
SUMMARY AND INTRODUCTION:
Malaysia is a destination and, to a lesser extent, a transit country
for men and women trafficked for the purposes of sexual exploitation and
forced labor. Women from the People's Republic of China, Indonesia,
Thailand, Philippines and Vietnam are trafficked to Malaysia for
commercial sexual exploitation. Additionally, some economic migrants
from countries in the region who work as domestic servants and as
laborers in the construction and agricultural sectors face exploitative
conditions in Malaysia that meet the definition of involuntary
servitude.
2. (SBU) There are no reliable statistics revealing
the total number of women trafficked into Malaysia. Foreign embassies
and NGOs report that in 2005, at least 500 trafficking victims were
rescued and repatriated. During the first nine months of 2005, over
4,600 foreign women were arrested and detained for prostitution,
compared with over 5,700 arrested during all of 2004.
According
to the government-funded National Human Rights Commission (Suhakam), a
significant number of these women were probable TIP victims.
3.
(SBU) The government recognizes that trafficking is a problem and has
taken significant steps to combat it. Senior officials have expressed
their support for anti-TIP programs, including comprehensive anti-TIP
legislation and TIP victim identification training for police and
immigration officials.
In November 2004, the government signed
an ASEAN declaration calling for greater regional cooperation against
trafficking in persons. In December 2004, the government hosted the
signing of a Mutual Legal Assistance Treaty with eight other ASEAN
countries to improve regional cooperation and prosecution of
transnational criminal activities including trafficking. Also in
December, the women's affairs minister announced her intent to establish
of the first shelter specifically for foreign women who are victims of
trafficking.
4. (SBU) Government implementation of these steps
has lagged, however. According to Suhakam, the government has not
significantly improved its anti-TIP actions since late-2004. Malaysia
lacks comprehensive anti-trafficking legislation that would enable
officials to identify and shelter victims, and to prosecute traffickers
under a single criminal statute.
The government has not taken
the legal steps necessary to establish the government-run shelter
announced by the women's minister. While final statistics for 2005 are
not yet available, convictions of traffickers under the penal code are
down from the previous year.
5. (SBU) The government should
draft and enact a comprehensive trafficking law that recognizes
trafficked men and women as victims and provides them with shelter,
counseling and repatriation assistance. The government should also
systematically screen foreign prostitutes and illegal migrants, in order
to identify and provide care for trafficking victims in their midst.
In addition, the Ministry of Women, Family and Community Development
(MWFCD) should fulfill its December 2004 undertaking to establish one or
more dedicated shelters for foreign trafficking victims.
6.
(SBU) The Embassy has urged the MWFCD to establish one or more shelters
and stronger legal protections for victims of trafficking. We are
encouraging the ILO and other international NGOs to be more proactive in
TIP programs in Malaysia and are partnering with local NGOs to expand
the infrastructure and resources required to respond effectively to the
needs of victims. We have also offered to provide the USG's TIP victim
identification expertise to police and immigration officials. The
response from the Malaysian government to these proposed initiatives has
been positive and cooperative.
7. (SBU) We believe that the
government of Malaysia does not fully comply with the minimum standards
for the elimination of trafficking. The Malaysians have made
significant efforts in previous years to bring themselves into
compliance with minimum standards. However, they have not provided
evidence of increasing efforts to combat severe forms of trafficking
over the previous year. We therefore recommend that Malaysia be moved
from Tier 2 to Tier 2 Watch List in the 2006 Trafficking in Persons
Report.
The placing of Malaysia on the Watch List should
assist us in communicating to the government of this moderate,
Muslim-majority democracy the importance with which we regard the need
for it to continue to address its trafficking issues.
End Summary and Introduction.
8.
(U) Embassy's submission for the 6th Annual Trafficking in Persons
(TIP) Report for Malaysia follows. Responses are keyed to paras 21-25
of ref A. Embassy's point of contact for TIP is political officer
Jeffrey Hilsgen (phone: 603-2168-4831, fax: 603-2168-5165, email:
hilsgenjg@state.gov ). Per
the request in para 20 of Reftel, to date the Embassy has spent the
following time on the TIP report: FS-1: 12 hours; FS-4: 75 hours; FSN:
10 hours.
9. CHECKLIST (PARA 21)
A.
A. (SBU) Malaysia is a target destination for crime syndicates
trafficking women and girls into the country for the sex trade. To a
much lesser extent, Malaysia is also a country of origin and transit.
While there are no reliable statistics revealing the total number of
women trafficked into the country, estimates can be made drawing from
different sources. Foreign embassies and NGOs report that in 2005, at
least 500 trafficking victims were rescued and repatriated.
During
the first nine months of 2005, 4,678 foreign women were arrested and
detained for suspected involvement in prostitution, compared with 5,783
arrested during all of 2004. Chinese nationals accounted for the
largest percentage of such arrests (more than 40%), followed by
nationals of Indonesia (25%), Thailand (17%) and the Philippines (10%).
According to the government-funded National Human Rights Commission
(Suhakam) and involved NGOs, a significant number of these women were
probable TIP victims.
(SBU) While little verifiable information
exists regarding the number of Malaysian women trafficked to other
countries, the GOM claims that no Malaysian women were trafficked
outside the country in 2004 (the latest period they reviewed). GOM
statistics state that 20 Malaysian women were arrested in 2004 for
immigration violations in various countries. According to the GOM, none
of the women claimed to be trafficking victims or gave any indications
they had been trafficked. Our conversations with local NGOs indicate
that fewer than 100 Malaysian women are trafficked abroad each year, and
that the number has declined in recent years.
(SBU) Our
sources of information on TIP in Malaysia include the Royal Malaysia
Police (RMP), the Attorney General's Chambers, the Immigration
Department, the Ministry of Home Affairs, the Ministry of Internal
Security, the Ministry of Foreign Affairs (MFA), the Ministry of Women,
Family and Community Development (MWFCD), the Malaysian Chinese
Association (MCA, an ethnic-Chinese political party in the ruling
coalition), Suhakam, several foreign diplomatic missions, and a number
of local NGOs, including the Malaysian Bar Council. These sources were
forthcoming with credible information on TIP.
B. (SBU) Malaysia
is a destination and, to a far lesser extent, a transit country for men
and women trafficked for the purposes of sexual exploitation and forced
labor. Collectively, as many as several thousand women from the
People's Republic of China, Indonesia, Thailand, Philippines and Vietnam
are trafficked to Malaysia for commercial sexual exploitation.
Additionally, some economic migrants from countries in the region who
work as domestic servants and as laborers in the construction and
agricultural sectors face exploitative conditions in Malaysia that meet
the definition of involuntary servitude.
(SBU) A small number
of Malaysians are trafficked annually to other countries, though recent
data suggest that the number has decreased to negligible levels.
According to NGO sources, young Malaysian ethnic Chinese women are the
primary targets of traffickers recruiting prostitutes in Malaysia.
For
religious and/or cultural reasons, trafficking of ethnic Malay or
ethnic Indian women is infrequent. According to most reports, Malaysian
Chinese women are lured by word of mouth and by personal contacts
connected to mainland Chinese criminal syndicates with international
connections. Promises of high-paying jobs and freedom from the
restrictions of Malaysia's generally conservative society are the main
motivating factors.
(SBU) During meetings with senior USG
representatives in 2005, Malaysian government officials expressed strong
support for combating trafficking in persons. While the government
views the issue of trafficking both as a stand-alone problem and as part
of the larger challenge of border security and illegal migration,
Malaysia does not fully comply with the minimum standards for the
elimination of trafficking.
According to the government funded
National Human Rights Commission (Suhakam), the government has not
significantly improved its anti-TIP actions since Suhakam's publication
in January 2005 of a national plan of action to combat trafficking. The
government has taken steps to combat trafficking and has a broad array
of criminal laws available to it to deter and punish traffickers, but
Malaysia lacks comprehensive anti-trafficking legislation that would
enable officials to identify victims, shelter them, and prosecute
traffickers under a single criminal statute. Compared to 2004,
prosecutions and convictions of traffickers under the penal code
declined during the first nine months of 2005.
(SBU) The
majority of persons trafficked into Malaysia for sexual exploitation
come from China, Indonesia and Thailand, with smaller numbers coming
from the Philippines, Vietnam, India and Cambodia, Burma and Laos.
Anecdotal evidence indicates that numbers of victims coming from
neighboring ASEAN countries have remained relatively constant over the
last few years.
The number and patterns of victims coming from
source countries tend to reflect GOM immigration and visa policies.
For example, China has grown as a source country in recent years due to a
more liberal Malaysian visa policy that reflects growing economic ties
and GOM efforts to encourage tourism and university enrollment from
Chinese students. China has become the largest and fastest-growing
source country for prostitutes in Malaysia; many of these Chinese women
and girls are likely TIP victims.
(SBU) The Royal Malaysia
Police (RMP) compiles statistics on arrests of foreign women with
suspected involvement in prostitution, broken down by nationality. The
Immigration Department's enforcement division also collects data on
trafficking cases. Malaysian authorities do not adequately distinguish
illegal migrants from trafficking victims. Law enforcement officials
assert that the great majority of the foreign women arrested for
prostitution in Malaysia entered the country voluntarily and with valid
travel documents.
However, surveys by Suhakam and interviews
with Indonesian, Thai and Philippine embassy officials indicate that as
many as fifty percent of foreign women arrested for prostitution are
possible trafficking victims. According to the Thai embassy's anti-TIP
officer, nearly all of the Thai women arrested for prostitution claim to
be TIP victims during interviews conducted by embassy officials.
(SBU)
To avoid detection by law enforcement authorities, trafficking victims
engaged in prostitution are often confined to the premises of their
establishments, whether it is a place of entertainment or a privately
owned apartment or home. Some women are taken out under strict
supervision to meet customers at hotels or private residences.
Trafficking victims are kept compliant through involuntary confinement,
confiscation of travel documents, debt bondage, and physical abuse or
threat of abuse, according to NGO representatives, academics, and
foreign consuls.
(SBU) In terms of prevention, in 2002 and 2003
the government took steps to toughen the criteria for young foreigners
seeking student visas, to monitor individuals with student visas more
carefully to ensure they were actually attending school, and to
scrutinize more closely young foreign women entering the country on
special two week "social passes." It has also stepped up border
detection for smuggling, illegal migration, and drug and people
trafficking.
(SBU) There is no evidence of widespread tolerance
or complicity in TIP by government authorities, though accusations of
more general corruption, particularly at the local police and
immigration levels, exist. Foreign diplomatic missions report good
cooperation on TIP from law enforcement authorities at the federal
level, but some NGOs have alleged that outside of Kuala Lumpur they have
received less cooperation. Several NGOs report that that police
cooperation with NGOs and other groups against traffickers has improved.
C. (SBU) Government resources are overwhelmed by the sheer
magnitude of illegal migrants entering the country. Analysts estimate
that over one million illegal migrants live in Malaysia. Law
enforcement agencies lack adequate resources to deal with the influx,
and criminal syndicates have been quick to exploit this weakness. TIP
victims are lost in the crowd of illegal migrants from China, Indonesia
and Thailand.
The Indonesian embassy estimates that only a
small minority of the 70,000 Indonesian workers in Sabah are legally
registered with the GOM. Immigration authorities say they do not have
the manpower or language resources to question and distinguish
trafficking victims from illegal migrants, or to properly assist them
when they are identified. The NGO community is small, poorly funded,
and often does not have the capacity to provide for victims even when
the police seek their assistance.
D. (SBU) Suhakam in 2004
conducted a comprehensive review of Malaysia's response to TIP. A
159-page report published in January 2005 included interviews with
victims, police, immigration, prison authorities, ministries involved in
TIP, the Attorney General, foreign embassies, NGOs and IOs. The report
called for wide-ranging measures to combat trafficking and a more human
rights-centered approach for protecting victims.
The report
was widely publicized in the local media and generated positive
commentary from the public, NGOs and government officials. The
state-influenced media gives extensive coverage to law enforcement raids
against brothels, massage parlors, and other locales where foreign
women and their pimps have been arrested for suspected involvement in
prostitution.
The government does not systematically publish
detailed statistics about its arrests, prosecutions and convictions of
pimps and traffickers. The GOM has provided this and related
information to the Embassy upon request. The government has also
provided a detailed written response to our annual trafficking in
persons report.
10. PREVENTION (PARA 22)
A.
(SBU) In 2004 the government signed the ASEAN Ministerial Declaration
against Trafficking in Persons. Government officials regularly
acknowledge that Malaysia is a destination and transit country and
assert that they are committed to combat TIP comprehensively. They view
trafficking as a problem connected to organized crime, prostitution,
smuggling and illegal migration, and recognize that many young foreign
women involved in prostitution in Malaysia are victims of TIP. However,
some also assert that many prostitutes working in Malaysia are here out
of choice and that these women should be prosecuted as such and
deported as illegal migrants.
Government officials have
expressed concern that some women willingly involved in vice claim to be
TIP victims when arrested. The government acknowledges that it has
difficulty in distinguishing TIP victims from foreign sex workers who
entered Malaysia willingly, as many of these women do not speak Bahasa
or English and choose not to file charges against their traffickers.
B.
(SBU) The RMP, the Immigration Department, the Ministry of Home
Affairs, the MWFCD, the MFA, and the Attorney General's office are the
government agencies involved in anti-trafficking efforts. Suhakam,
which is funded by the government, and the MCA, the second-largest party
in the governing coalition, are also active in anti-TIP efforts.
C.
(SBU) MCA publishes warnings in its Chinese-language publications and
makes public statements to caution potential victims about overly
lucrative job offers abroad. The MCA reported that the number of
Chinese victims seeking assistance from its offices declined to 39 in
2005, compared with 56 in 2004 and 75 in 2003. The government has not
directly sponsored anti-trafficking campaigns.
D. (SBU) The
government supports some trafficking prevention programs. Currently,
the MWFCD operates "rehabilitation" homes for women and girls (under 18)
who have been determined by the courts or their families to be at risk
of engaging in prostitution or other vice activities.
(SBU)
Malaysian women comprise more than half of the university student
population, account for 44% of the nation's labor force, and hold
significant high-profile positions in government, NGOs and the private
sector. In 2004, the Ministry of Women's Affairs and Family Development
was merged with the Ministry for Social Welfare to create an expanded
Ministry of Women, Family and Community Development.
The
women's affairs minister secured passage in August 2001 of a
constitutional amendment barring sex discrimination. In 2004, a women
NGO activist who maintains a shelter for abused women and TIP victims
was appointed to the royal commission on police reform.
(SBU)
In 2004, Suhakam drafted a TIP national plan of action with support from
the IOM. Among other things, the plan recommended that the government
fund shelters for foreign TIP victims that include reintegration
programs. In December 2004, the women's affairs minister announced the
cabinet's approval to open a shelter specifically for "foreign women who
are victims of trafficking."
Prime Minister Abdullah attended
the announcement, signaling his support. The women's minister
subsequently informed us that amendments to existing laws, or a new
comprehensive anti-TIP law, had to be enacted prior to government
establishment of a TIP victim shelter; current laws do not distinguish
between TIP victims and illegal migrants engaged in vice activities. In
2005, the MWFCD discussed launching a nationwide campaign in
collaboration with various NGOs to increase public awareness on
trafficking through seminars, workshops and dissemination of brochures.
The campaign is supposed to target youths and school children
and serve as a capacity-building program for law enforcement and policy
makers to heighten their awareness of the problem. It has not yet been
launched.
F. (SBU) Government and NGO cooperation on
trafficking is uneven and ad hoc, both because the government does not
have established procedures for handling trafficking victims and because
NGOs do not have the resources to care for more than a few victims at
any given time. In some cases victims are released into the custody of
their embassies, which maintain limited shelter capabilities. In other
cases, police ask private shelters run by NGOs to accept TIP victims.
Foreign
embassies and several NGOs report good cooperation with police and
immigration officials in securing immigration passes and shelter for
foreign women workers who are victims of trafficking or physical abuse.
Police officers have been designated as liaisons with the MCA's Social
Services and Welfare office and other NGOs on cases involving
trafficking and other victims.
(SBU) Using USG funding and with
the assistance of the IOM, local NGO Tenaganita plans to establish
Malaysia's first dedicated shelter for foreign TIP victims in March
2006. Tenaganita intends to obtain the formal approval of police,
immigration and Women's Ministry officials for the shelter, as it ramps
up operations. The Indonesian embassy's shelter in Kuala Lumpur has a
capacity of 80 persons, but in mid-February it housed 140 individuals,
including a 15-year-old girl recently trafficked into Malaysia from
Sumatra for sexual exploitation. Approximately 80% of the of the
shelter's occupants are typically TIP victims, according to the
embassy's lead anti-TIP official. Of that number, about 80% are
laborers escaping exploitative conditions, with the remainder are
persons trafficked for sexual purposes.
G. (SBU) The Malaysian
government views border control as a national security issue because of
concerns related to terrorism, narcotics, public health, economic
security, and social stability, as well as trafficking. For all of
these reasons, the government is making a strong effort to monitor the
country's borders.
Malaysian passports issued in the country
are fitted with a microchip that stores the biographic data and
photograph of the passport holder to prevent forged alterations and
photo substitution of lost or stolen passports. As part of its
crackdown on vice in 2002, the government instituted tougher criteria
for foreigners seeking student visas and increased border scrutiny of
young persons, particularly from China, entering Malaysia on special
"social passes."
In 2005 the government began a large-scale
program to issue immigration "smart cards" to permanent residents and
legal workers in Malaysia. The smart cards electronically store
biographic data, fingerprints and the immigration status of the
cardholder.
(SBU) Malaysia's 3000-mile-long coastline creates a
tremendous challenge for Malaysia's security forces. In addition, the
long, heavily forested land border that East Malaysia shares with the
Indonesian province of Kalimantan cannot be patrolled adequately. The
government nonetheless makes a serious effort to control these borders.
Reports of organized criminal activity to facilitate the entry
of illegal aliens are investigated by local law enforcement
authorities, and in some cases suspected perpetrators have been detained
under Malaysia's Internal Security Act (ISA), the Emergency Ordinance
and the Restricted Residence Act, all of which allow for extended
periods of detention without charge.
In January 2005, the
press reported that the police used the ISA to detain nine persons
involved in forging Malaysian identity cards. Seven of the individuals
worked for the Malaysian national registration office and the remaining
two were members of criminal syndicates. In both 2003 and 2004,
according to government statistics, approximately 4,000 foreign
nationals were refused entry into Malaysia due to suspicion of owning
fake or falsified travel documents.
H. (SBU) A number of
governmental interagency groups address TIP and related issues. The MFA
leads an interagency group on transnational organized crime, which
meets monthly and has been charged with addressing the trafficking issue
from a regional perspective. The Home Affairs Ministry supports
another interagency group, the Cabinet Committee on Illegal Immigrants,
which coordinates efforts against illegal migration, including TIP.
Deputy Prime Minister Najib, who also holds in his portfolio oversight
of the National Human Rights Commission, chairs the Cabinet Committee on
Illegal Immigrants.
(SBU) The Home Affairs Ministry also
maintains a special interagency task force targeting vice that includes
officials from the RMP, Immigration, and the Ministries of Home Affairs,
Housing, Education, and Tourism. According to NGOs, this task force
meets occasionally, but its anti-vice contributions remain unclear. An
additional border security group, the Land Entry Points Coordinating
Committee, reviews and improves the operational aspects of border
control. A similar group also coordinates efforts to improve service,
security and efficiency of air-entry points.
In the state of
Sabah, on Borneo, an interagency Federal Special Task Force focuses
primarily on illegal migration, but also tries to prevent TIP. The task
force includes representatives from the RMP, Immigration, the national
security arm of the Prime Minister's Department, and the armed forces. A
separate agency under the Home Affairs Ministry, the Anti-Corruption
Agency, investigates cases of public and private corruption.
A
royal commission on police reform conducted a review of police
practices, including allegations of police corruption and graft,
starting in 2004, issuing 125 recommendations in April 2005. In early
2006, the Prime Minister ordered the Attorney General to complete the
legal groundwork necessary to create a permanent independent commission
to hear complaints against the police.
(SBU) On the
international level, TIP is a component of the Eight Priority Areas of
Cooperation under the Work Program of the ASEAN Plan of Action to Combat
Transnational Crime. In 2004, Malaysia signed a joint ASEAN
Declaration to Combat Trafficking in Persons. The declaration called
for greater regional counter-TIP cooperation and asked member states to
undertake actions to respect and safeguard the dignity and human rights
of victims of trafficking.
In 2005, Malaysia convened a
meeting of ASEAN attorneys general to sign an ASEAN-wide mutual legal
assistance treaty (MLAT) designed to combat transnational crimes,
including TIP, more effectively.
In May 2002, Malaysia, the
Philippines and Indonesia signed the "Agreement on Information Exchange
and the establishment of Communication Procedures" to establish a
framework for cooperation on border and security incidents,
transnational crimes (including trafficking in persons), and other
illegal activities. Subsequently, Cambodia, Brunei and Thailand acceded
to the agreement. Malaysia has been an active participant in the "Bali
Process" initiated by Australia and Indonesia.
In 2003,
Malaysia hosted two follow-up legislative workshops on People Smuggling,
Trafficking in Persons and related Transnational Crime.
(SBU) Malaysia shares intelligence on trafficking syndicates and related dangers with the UK, Australia and Interpol.
In
late 2002, the Sabah state government entered into an agreement with
the government of the Indonesian province of East Kalimantan to
cooperate on a range of shared cross-border challenges, including
finding and arresting human traffickers and dismantling syndicates.
In
2004, Malaysia ratified the UN Convention against Transnational Crime;
it is considering signing the supplementary protocol against trafficking
in persons. Malaysia is expected to conclude an MLAT with the U.S. in
2006.
J. (SBU) In October 2004, Suhakam, with support from the
IOM and the Embassy, drafted a national anti-TIP plan of action for
consideration by the government. In preparing the plan, Suhakam
consulted with government agencies and NGOs involved with TIP, foreign
embassies from source countries for TIP victims found in Malaysia, TIP
victims and foreign experts on TIP such as the IOM.
The
national plan of action was submitted to the government for
consideration in November 2004. The government has not yet acted on the
anti-TIP plan's proposals, nor has it designated a lead ministry for
counter-TIP programs.
11. INVESTIGATION AND PROSECUTION OF TRAFFICKERS (PARA 23)
A/B/C. (SBU) In 2002, the government amended the criminal code to include extensive anti-trafficking language.
According
to one expert on anti-trafficking legislation, it is now "a strong law
with solid anti-trafficking provisions with regard to trafficking for
sexual exploitation." Using the provisions, police regularly raid
brothels and arrest pimps and enforcers. However, only two such
individuals were convicted under the penal code during the first nine
months of 2005.
When the police lack sufficient criminal
evidence to arrest suspected pimps and traffickers under the Penal Code,
they often utilize the Restricted Residence Act, one of Malaysia's
"preventive detention" laws, to incarcerate them. Another such law, the
Emergency Ordinance, is regularly used against criminal syndicates that
transport, harbor and otherwise facilitate the illegal entry of
foreigners into Malaysia.
(SBU) While Malaysia does not have a
unitary law specifically prohibiting trafficking in persons, most of the
acts involved in trafficking in persons as defined by the UN Protocol
are criminal offenses, including recruitment, transportation, transfer,
wrongful restraint, harboring, receipt of persons by means of threat or
use of force, or other forms of coercion fraud, abuse of power, or
forced sexual exploitation, slavery, or servitude. In 2004, the
government began to use new provisions to the 2001 Anti-Money Laundering
Act to seize the assets of businesses involved in illicit activities,
including trafficking. Following is a summary of the legal provisions
most commonly used in Malaysia against traffickers:
-- Constitution, Articles 6(1) and 6(2): Prohibit slavery and forced labor.
--
Penal Code, Sections 340-348: Address "wrongful confinement" of a
person against his/her will. Punishments include maximum prison terms
from one to three years and a fine.
-- Penal Code, Section 372:
Amended in 2002 to include stronger anti-trafficking language,
addresses exploitation of any person for purposes of prostitution.
Exploitation is defined to include selling, hiring, or otherwise
obtaining possession of any person with the intention to employ or use
the person for the purpose of prostitution (either inside or outside of
Malaysia) or knowing or having reason to believe that the person will be
so employed or used.
Section 372 expands the offense of
exploitation to include using false pretense or deceitful means to bring
into or take out of Malaysia any person; harboring or receiving any
(exploited) person and wrongfully restraining any person in any place.
Wrongfully restraining is further defined as withholding clothing or
property, threatening the person with legal proceedings to recover any
debt or alleged debt and detaining a person's identity card or
passport. Punishment under this section of the Code includes a prison
term, which may extend to 15 years, caning and a fine.
-- Penal
Code, Section 372A: Provides the same penalties as section 372 for
anyone who lives wholly or in part on the earnings of the prostitution
of another person.
-- Penal Code, Section 373: Provides the
same penalties as section 372 for anyone who keeps, manages or assists
in the management of a brothel.
-- Penal Code, Section 374:
Addresses unlawful compulsory labor and includes punishment by
imprisonment for a maximum one-year term and the possibility of a fine.
--
Immigration Act, Sections 55(A) and Sections 56(1)(d): Covers a wide
spectrum of immigration violations related to illegal entry or entry
under false pretenses. The Act also addresses "employing" and
"conveying" illegal aliens. The Act was amended in 2002 to toughen
significantly punishments for immigration violators.
Those
convicted of illegal entry face a fine of up to RM 10,000 ($3,800)
and/or a prison sentence of up to 5 years, and caning of up to a maximum
of 6 strokes. The penalty for employing an illegal alien is a fine of
between RM 10,000-50,000 (USD 7,900) for every illegal immigrant
employed and/or a prison term of up to 12 months. An employer employing
more than five illegal immigrants will be imprisoned from 6 months to 5
years and caned up to a maximum of 6 strokes.
The penalty for
"conveying" (trafficking) illegal immigrants is a fine of RM
10,000-50,000 for every individual trafficked. An individual convicted
for trafficking more than 5 illegal immigrants will also be imprisoned
for between six months and five years, and caned up to a maximum of six
strokes.
-- Child Act (2001): Merges provisions from an array
of diverse legislation pertaining to children and young persons (the
Women and Girls Protection Act, the Juvenile Court Act, and the Child
protection Act) into one law. The Act specifically prohibits
trafficking of children and makes it an offense to sell, let to hire, or
procure (by threat or intimidation by false pretense, fraud or deceit)
any child (defined as anyone under the age of 18) for the purpose of
sexual exploitation.
Penalties for these offenses are a maximum
prison term of 15 years and a maximum fine of RM 50,000 (USD 13,000).
The Child Act also authorizes the police to provide protection and
rehabilitation for children in need. A child in need is defined to
include a child who "is being induced to perform any sexual act, or
being in any physical or social environment which may lead to the
performance of such act".
-- Passports Act: Criminalizes the
forgery or alteration of travel documents (including passports,
residence permits and visas). Also criminalizes false statements or
misrepresentation used to gain illegal entry into Malaysia. Penalties
range from RM 10,000-100,000 ($2,600-$26,000) fine, 5-10 years in
prison, and six strokes of a cane.
-- Internal Security Act
(ISA): Provides for detention up to two years without formal charge.
According to the Home Affairs Ministry, the ISA has sometimes been used
against individuals for threatening the security of the country by
trafficking illegal immigrants or forging travel documents or work
permits.
-- The Emergency (Public Order and Prevention of
Crime) Ordinance: Used against persons, usually criminal syndicates that
are involved in illicit activities (such as violent crime, document
forgery and people smuggling), which threaten public order.
--
Restricted Residence Act (RRA): Allows the government to require
individuals who are suspected of engaging in criminal activity including
trafficking to move to a pre-determined location in the country and
remain there under close police supervision. The RRA does not require a
formal charge to be filed against the suspected individual. According
to police data, the RRA was used significantly more often than the penal
code to charge and detain suspected pimps and traffickers during 2005.
D.
(SBU) Federal law criminalizes prostitution and bans pornography, and
the laws are vigorously enforced. Malaysians tend to be conservative on
sexual issues. The 60% of the population that is Muslim is subject to
Islamic laws that prohibit even "close proximity" between men and women
who are not married to each other.
The activities of the
prostitute, brothel owner/operator, and enforcer are all considered
criminal offenses, though clients are not generally prosecuted. The sex
trade is largely underground. It is visible only at two extremes: in
nightclubs and bars that cater primarily to affluent foreigners; and in
poor neighborhoods with large migrant populations.
E. (SBU)
Following amendments to different acts in 2001 and 2002, the government
began to prosecute people involved in trafficking for the purposes of
prostitution. According to the MFA, in 2002 the first trials and
convictions under the amended sections 372, 372A and 372B of the Penal
Code began to work their way through the courts, with 9 trials and 7
convictions.
In 2003 there were 85 cases investigated, 31
prosecutions and seven convictions. According to RMP statistics, 28
persons were prosecuted (and two convicted) under Sections 372 and 373
of the Penal Code from January - September 2005, compared with 38
persons prosecuted (and 17 convicted) during all of 2004.
(SBU)
When police lack sufficient evidence to convict a suspected pimp or
trafficker, they use the Restricted Residence Act to detain the
suspected individual. The Act allows the government to detain a
suspected trafficker indefinitely, without due process of law. During
the first nine months of 2005, 48 suspected traffickers were detained
under the Restricted Residence Act, compared with 47 during all of 2004.
(SBU) According to the government, it detained "about 40"
members of regional trafficking syndicates from 2000-2004 under the
Internal Security Act (ISA). The suspected traffickers used Malaysia as
a transit point for trafficking Chinese nationals to third countries.
The government stated that 13 international trafficking syndicates were
eliminated in these operations.
(SBU) Government officials,
NGOs and legal analysts acknowledge that prosecution of trafficking
perpetrators is complicated by the difficulty in producing credible
evidence and by the lack of victim cooperation. Evidentiary barriers,
the prosecution's burden of proof beyond a reasonable doubt, and
pressure to produce convictions in a backlogged criminal justice system
all work against effective prosecution of trafficking cases. Given
these problems, the government has employed the ISA, the Emergency
Ordinance and the Restricted Residence Act to detain or restrict the
activities of people suspected of trafficking and alien smuggling
activity.
F. (SBU) The RMP reports that a number of large
organized criminal syndicates, as well as a few smaller groups, traffic
foreign women into Malaysia, using Malaysia either as the women's final
destination or as a transit point to a third country. In 2005, there
were numerous reports of prostitution rings broken up by police and
syndicate members arrested for involvement in prostitution. Employment
agencies are sometimes used as fronts for people smuggling and
trafficking in persons. Sex tourism is not widespread in Malaysia, nor
are there reports of marriage brokers fronting for traffickers.
G.
(SBU) As noted in para 8E above, the Malaysian government is actively
investigating cases of trafficking. Police efforts to break criminal
syndicates are complicated by layers of middlemen, some of whom reside
outside Malaysia.
Often trafficking victims, both Malaysians
who have gone abroad and foreigners brought to Malaysia, may only know
one middleman, who is probably using a false identity. In investigating
cases of trafficking, police investigators attempt to question
repatriated Malaysian victims as soon as they return, but the victims
usually cannot or will not provide enough information for further
investigation.
H. (SBU) The government lacks the expertise to
provide law enforcement officers with specialized training on how to
investigate incidences of trafficking. It continues to take full
advantage, however, of TIP training for law enforcement officers and
prosecutors at ILEA Bangkok, as well as bilateral training on domestic
violence sponsored by the USG in Malaysia. Police, prison and
immigration officials also lack TIP victim identification expertise. In
2005, senior police and immigration officials asked for USG-sponsored
TIP victim identification training. The Embassy continues to seek
funding and provision of such training for GOM law enforcement
officials.
I. (SBU) The RMP cooperates with law enforcement
agencies in neighboring countries whenever cross-border criminal
incidents are being investigated. In May 2002, Malaysia, Indonesia and
the Philippines signed an agreement to facilitate cooperation in
addressing border and security incidents, as well as transnational
criminal activities that include human trafficking.
In late
2002, the Sabah state government entered into a formal agreement with
the government of the Indonesian province of East Kalimantan to
cooperate on a range of issues, including combating TIP and
investigating trafficking syndicates. Malaysia actively participated in
the Bali Process and has hosted two legislation workshops related to
it.
In early 2005, though a joint operation by the RMP and the
British National Crime Squad, a Malaysian "snakehead" was arrested,
tried and convicted of smuggling illegal Malaysian workers into the UK.
In
April and October 2005, the RMP closely cooperated with an
international NGO to raid several brothels in Johor, arrest one
internationally active trafficker and rescue dozens of (primarily Thai)
women. Thai police from Songkla visited Kuala Lumpur in February to
conduct a joint cross-border TIP investigation with local police.
Representatives
from NGOs, as well as the Indonesian, Thai and Philippine embassies in
Kuala Lumpur, characterize their cooperation with police as good. NGO
and embassy officials emphasize the timely responses from police to tips
about the locations of possible TIP victims.
J. (SBU) There
have been no reports of extraditing persons charged with trafficking.
Section 108A of the Penal Code allows Malaysian authorities to prosecute
a Malaysian who commits or abets a crime in another country that would
be deemed an offense under the Penal Code. Malaysia is a party to the
ASEAN Mutual Legal Assistance Treaty, which is designed to facilitate
and expedite regional cooperation in fighting transnational crime.
Malaysian law does not prohibit extradition of Malaysian nationals.
K.
(SBU) There have been no proven cases of tolerance or complicity in TIP
by government authorities. Pockets of general corruption, particularly
at the local police and immigration levels, exist.
L. (SBU)
Although some low-level police and immigration officials likely receive
bribes from brothel owners, pimps and traffickers, we are aware of no
allegations that police officers or other government officials have
engaged in trafficking.
(SBU) Most analysts assume that some
trafficking-related corruption exists among law enforcement and
immigration ranks, since some TIP victims have been known to pass
through two or more ports of entry without travel documents.
In
April 2005, a government-sponsored independent police commission noted a
rising incidence of police corruption. Included among the appointed
commissioners were women activists active in the fight against TIP. The
commission reported that disciplinary actions were initiated against
1,216 police personnel for corruption and other offenses during 2004,
compared with 1,138 in 2003. Police offenses noted in the report
included accepting bribes, theft, and rape; punishments included
suspension, demotion and dismissal.
The number of these
officers involved in facilitating trafficking was not available. As
noted above, the Prime Minister recently ordered the Attorney General to
complete the legal groundwork necessary to create a permanent
independent commission to hear complaints against the police. If
ultimately established, this commission could provide an effective venue
for investigations into allegations of police complicity in
trafficking.
M. (SBU) Malaysia does not have an identified
child sex tourism problem, although the Indonesian, Thai and Philippine
embassies occasionally report interviewing victims under 18 years of age
what have been trafficked for sexual exploitation.
N. (SBU)
Malaysia signed and ratified ILO Convention 29 in 1957, ILO Convention
105 in 1958 (but renounced it in 1990), ILO Convention 182 in September
2000, and the UN Convention on the Rights of the Child in September
1995. Malaysia signed the UN Convention against Transnational Organized
Crime in September 2002 and ratified it in 2004. The government has
not signed the supplemental Protocol on the Sale of Children, or the
Protocol to Prevent, Suppress, and Punish Trafficking in Persons,
Especially Women.
12. PROTECTION AND ASSISTANCE TO VICTIMS (PARA 24)
A.
(SBU) The government provides no shelter facilities dedicated
exclusively to TIP victims, as these individuals are not recognized as
victims under Malaysian law. Until Malaysia amends its existing laws or
enacts comprehensive anti-TIP legislation, TIP victims will be
routinely processed as illegal migrants and held in the country's
prisons or illegal migrant detention facilities, prior to deportation.
According
to the RMP and foreign consuls, trafficking victims identified by the
police are released on an ad hoc basis into the custody of a consular
official and sent to a women's shelter instead of being kept in police
lock-up. The Indonesian, Thai and Philippine embassies report that in
2005, RMP officers brought in many of the over 500 victims assisted by
the embassies' respective shelter programs during the year.
(SBU)
As of February 2006, the Indonesian embassy's shelter held 140
individuals, approximately 80% of whom were deemed TIP victims by
embassy officials. Women's shelters run by other foreign embassies
temporarily housed an additional 30-40 TIP victims per year. NGOs and
police report that NGOs currently do not have the capacity to shelter
more than 25-50 victims nationally, leaving the police few alternatives
to housing victims in detention facilities. Owing to language barriers
and limited police training, foreign trafficking victims are usually not
recognized as victims and are treated as immigration offenders.
HIV/AIDS screening is usually provided for individuals arrested for
prostitution and for others who are identified as trafficking victims
rather than illegal migrants. When trafficking victims are identified
as victims prior to detention, they may be sent to a hospital for
examination and released to their embassies for repatriation.
B.
(SBU) Although NGOs do not receive government funding specifically to
provide services to trafficking victims, the government provides general
funding to 75 NGOs dedicated to women's welfare. These NGOs provide
shelter for victims of rape and domestic violence, counseling, legal
referrals, and job skills training. Three foreign embassies maintain
shelters in Kuala Lumpur for citizens who have no place to take refuge.
The Thai embassy's shelter is small and held no individuals as of
February 2006, while the Indonesian embassy's shelter is by far the
largest, with a (typically exceeded) capacity of 80. Many using the
shelters are trafficking victims.
The MWFCD has introduced
"women's centers" in each state for impoverished, abused and otherwise
vulnerable women who may need shelter, counseling, and job skills
training. The ministry currently operates five such shelters. The
ministry stated in 2005 that one of these shelters could be quickly
converted to house trafficking victims who need assistance, once
Malaysian law allows the GOM to handle TIP victims as such.
C.
(SBU) The government has not yet implemented a formal screening process
to identify TIP victims and treat them accordingly. A Suhakam-designed
TIP victim identification questionnaire was used briefly on a trial
basis in 2005 at the Kajang women's prison. Both Suhakam and the
prison's director told us recently that it is no longer used, as
Malaysian law does not allow special treatment for detained TIP victims.
D. (SBU) Foreign TIP victims are often not recognized as
victims and, if they are holding false travel documents or have been
arrested for prostitution, are usually detained and deported. Illegal
migrants (including some victims) who are caught by the Malaysian
authorities without valid travel documents are held for a few days in
police custody before being sent to immigration detention centers or
prisons pending deportation. The period of detention varies widely,
from a few days to several months. According to foreign consular
representatives, the usual sentence is one or two months' imprisonment
and a fine, followed by deportation.
E. (SBU) The Malaysian
government encourages victims to assist in the investigation and
prosecution of trafficking, but reports that most victims are unwilling
to testify or do not have sufficient information to assist in a
prosecution.
A trafficking victim may file a civil suit against
a trafficker under Malaysian law, and there have been many cases of
migrant workers filing such suits in cases where they were not paid the
salary they were promised or put to work in abusive conditions that were
contrary to their contracts.
While there is no specific
impediment to the victims' access to such legal redress, they are
usually not able to obtain employment while the court considers their
case, and so for economic reasons this type of action in not usually
pursued. We are not aware of any victim restitution program.
F.
(SBU) Some foreign victims have access to legal counsel through the
Legal Aid Center of the Malaysian Bar Council. Police say that most
victims are unwilling or unable to provide enough information for
criminal prosecution of the trafficker, and many simply want to return
to their home country as soon as possible.
One NGO reported
that pimps and traffickers are often present in the courtroom during
court proceedings to intimidate the victims, while another NGO reported
in October that police allowed a trafficker to visit ten Thai
trafficking victims in detention. The Malaysian government does not
have a witness protection program in place for any prosecution
witnesses.
The Abduction and Criminal Intimidation of
Witnesses Act of 1947 criminalizes the abduction of any person for the
purpose of preventing their testimony and thereby obstructing justice.
The police and Attorney General have advised that this is rarely used in
trafficking cases.
The courts have begun to experiment with
video conferencing and videotaped depositions to provide protection to
victims who are afraid to testify in court. As of February 2006, the
necessary equipment was installed in several locations, but the program
had not yet been initiated.
(SBU) According to an Indonesian
embassy official, many Indonesian plantation workers in Sabah are
detained on the plantations and forced to work for less than $3 (i.e.
RM8-10) per day. Under Malaysian law, victims of these forms of
trafficking are entitled to seek compensation through the legal system
and are eligible to remain in Malaysia while their legal suit is
pending. In general, Malaysian courts have ruled in favor of the
victims and in some cases imposed harsh prison sentences on the
employer. However, such labor-related lawsuits may take months or even
years to be adjudicated. Meanwhile, the victim is not allowed by the
GOM to work and is typically left with insufficient means of financial
self-support; they therefore often leave the country, rather than see
their case through to completion.
G. (SBU) The government does
not currently provide special training for officials on how to identify
or assist trafficking victims. Senior police and immigration officials
have acknowledged that additional training and expertise are needed to
improve identification and handling of trafficking victims. Police and
immigration officials have asked the USG to provide additional such
training to improve their anti-TIP capability, and we have requested
funding for the training (ref B). Outside of citizen services and
repatriation training, Malaysian embassy and consulate staff abroad do
not receive specialized training on how to assist trafficking victims.
Malaysian police, immigration officials and public prosecutors have
received training at ILEA on trafficking in persons, as well as
USG-funded bilateral training on domestic violence.
H. (SBU)
Repatriated Malaysian victims who do not have the support of family or
friends are referred to the MWFCD for public assistance. Private
groups, such as the MCA's welfare wing, also offer services to
repatriated victims.
I. (SBU) MCA, the Bar Council, Tenaganita,
Women's Aide Organization (WAO), and the International Federation of
Women Lawyers (IFWL) are the Malaysian NGOs most active in working with
trafficking victims. In 2004, the IOM provided Assistance to Suhakam to
draft a national plan of action to combat TIP.
In 2005, the
IOM and Tenaganita submitted a project proposal to the Embassy to
shelter, repatriate and reintegrate TIP victims. Following funding
approval, the IOM and Tenaganita signed a MOU regarding establishment of
the shelter, and it is scheduled to commence operations in March 2006.
Two NGOs maintain shelters that are available to foreign trafficking
victims.
One of the shelters provides in-house counseling,
medical referrals to clinics and legal referrals to the Bar Council's
Legal Aid Center. The shelter also works with foreign missions to
arrange for translators and to facilitate repatriation for women
trafficked to Malaysia. Other women's shelters in the country provide
refuge, but have few additional resources for the special needs of
trafficking victims.
NGO relations with local authorities
vary. Some frequently receive cooperation from law enforcement
officials, but others experience greater difficulty. The MCA, WAO and
Tenaganita provide a full range of services, including counseling,
shelter, and repatriation assistance. The Bar Council and IFWL provide
legal assistance. Foreign embassies and local NGOs report that
cooperation with the federal police in Kuala Lumpur has generally been
good. Outside of Kuala Lumpur, with other agencies such as Immigration,
cooperation is less consistent.
13. HEROES (PARA 22)
(SBU)
For the 2006 Trafficking in Persons Report the Embassy nominates Irene
Fernandez, President of local NGO Tenaganita, for honor as an individual
who has demonstrated an exceptional commitment to fighting TIP. Over
the past several years, her work on behalf of both mistreated migrant
workers and sexual trafficking victims in Malaysia has garnered her
worldwide respect and support.
Fernandez was arrested in March
1996 for publishing a report about detainee abuse and very poor
sanitation conditions in the country's illegal migrant detention
centers. Found guilty in October 2003 and sentenced to one year in
jail, she appealed her case. Hers has become the longest-running court
case in Malaysian history.
In May 2005, her NGO Tenaganita
published a video entitled "Breaking Labor" that included the tragic
stories of several foreign victims of labor trafficking and abuse in
Malaysia. During 2005, Tenaganita facilitated legal assistance and
shelter for sexual trafficking victims.
In December 2005,
Fernandez traveled to Stockholm to accept the Right Livelihood Award,
commonly known as the "Alternative Nobel Prize." And as of February
2006, in cooperation with the IOM and with USG funding, Tenaganita was
poised to establish Malaysia's first dedicated TIP victim shelter and
repatriate TIP victims to their home countries. Tenaganita has become
the largest and most effective anti-TIP NGO in Malaysia, and this status
is largely due to Fernandez' efforts. She has demonstrated
considerable vision, courage and leadership in the face of the Malaysian
government lawsuit. Her efforts have directly benefited hundreds of
TIP victims, as well as influenced the GOM to improve its anti-TIP
attitudes and actions.
LAFLEUR
The
uniformed men comprising about 50 Light Force Strike personnel arrived
about 10.15pm, to be greeted with shouts of "here they come, police have
come, shut the gate!" 
The
ceramah's facilitator (announcer) told the crowd not to "panic" as the
event was held within PAS' premises, adding "they cannot do anything as
this is our own land".
However,
only Bukit Tambun assemblyperson Ong Chee Wen, PKR Youth leader
Amizuddin Ahmat, PAS Kepala Batas commissioner Rosdi Hussain and LLG
Cultural and Development Centre chief Toh Kin Woon (right) were spotted at last night's do.
They made their dissatisfaction known by hurling a snide remark or two at the police who were equipped with headgear and batons.
Another
business men, A Rahman, said that the police action of lining up
infront of the PAS centre was "bad" as this was one of the only venues
that the communtity could express themselves.
KUALA
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