LAST Wednesday, the Alor Star High Court overturned a lower court’s decision to cane 27 Rohingya refugees who entered Malaysia without valid papers. The United Nations High Commissioner for Refugees lauded the move as “a clear understanding of international refugee law in a mixed-migration context, and the need for upholding protection measures for refugees and asylum seekers”.

The Malaysian media and public tend to regard those who enter the country without proper documentation as “illegal immigrants”, and fail to understand that many may very well be victims of human trafficking. Over the years, hundreds of thousands of Rohingya have been forced to pay traffickers exorbitant sums to flee persecution in Myanmar, or to escape the appalling conditions at overcrowded refugee camps along the Bangladesh-Myanmar border.

There are also cases where Rohingya women and children are lured by the false promise of being reunited with their families in Malaysia, only to find themselves on a journey to hell. The Malaysian Human Rights Commission, in collaboration with Fortify Rights, conducted an investigation and released a report last year, titled “Sold Like Fish: Crimes Against Humanity, Mass Graves and Human Trafficking from Myanmar and Bangladesh to Malaysia from 2012 to 2015”, which revealed that “members of a syndicate tortured, killed, raped or otherwise abused untold numbers of men, women and children, buying and selling them systematically in many cases, in concert with government officials”.

Human smuggling and trafficking are often linked, hence, they seem similar to many. However, these are separate crimes. A major difference is that human smuggling is largely a crime against the state (crossing the border illegally), while human trafficking is an offence directed specifically at the individual, employing the threat or use of force, deception and abuse of power.

In its simplest form, human smuggling is nothing more than an “immigration service”, albeit one that is illegal and not entirely without elements of exploitation. For instance, a citizen of Country A seeks help from an “agency” to facilitate their travel – often using false identification documents – to Country B for the purpose of illegal employment. The “contractual relationship” is dissolved upon the completion of the deal, and the “agency” is unlikely to harass the “client” later. In short, it is on a “willing buyer, willing seller” basis, with the major offence being illegal entry into Country B.

Be that as it may, international law requires governments to criminalise only human smuggling, not those who are smuggled, for the simple reason that they could be put in dangerous situations and suffer severe human rights violations at the hands of smugglers, especially during land or sea journeys. In contrast, human trafficking must contain elements of deception, and refugees or asylum seekers are often victims of such practices.

Unable to withstand oppression by the Myanmar military, a Rohingya man may be compelled to seek help from a middleman, who, in turn, promises “legal employment with high wages” in Malaysia, with no strings attached. Finding this irresistible, the Rohingya may then choose to board a boat arranged by the “agent”, embarking on a journey that, without the man’s prior knowledge, is filled with threats, physical violence and even torture. Meanwhile, family members and friends already in Malaysia are forced to pay tens of thousands of ringgit to secure his release. Anyone who manages to complete the journey should count themselves fortunate.

Therefore, human trafficking is the naked exploitation of a person’s vulnerabilities, with the most despicable crimes committed against the individual (Rohingya) rather than the state (Malaysia).

It ought to be said that while the Rohingya’s horrible experience may represent the most extreme form of human trafficking, a more common scenario is that foreigners are deluded into believing Malaysia is a land of milk and honey. Once they are brought into the country by deceitful “agents”, they are often made to work in harsh conditions with meagre pay. They can also be considered victims of human trafficking, especially if elements of forced labour or other kinds of exploitation are established. Worse, extortion or physical abuse could continue even after they arrive in the destination country, particularly in the case of women and teenage girls, who might be forced into prostitution.

Another marked difference between human smuggling and trafficking is that the former is always transnational in nature, while the latter could happen within the country. In Sabah, school dropouts or street children have long been a target of human traffickers for sexual exploitation, due to their poverty or lack of legal documentation.

Needless to say, the rampant human trafficking involving Malaysia as both a destination and source country demonstrates that our efforts to combat the problem are far from sufficient in the three main areas of prosecution, protection and prevention. In the wake of the shocking discovery of mass graves along the Malaysian-Thai border in May 2015, Bangkok took swift and stern action against those involved, leading to the prosecution and imprisonment of several high-ranking officials. In Malaysia, none of its officials implicated in the heinous crimes has been brought to justice, the “democratic change” that happened in May 2018 notwithstanding.

Amid the Covid-19 crisis, the virulent campaign against migrant communities in general and the Rohingya in particular has done nothing to improve their protection and the prevention of human trafficking. If anything, it has largely allowed the real culprits, such as syndicates and corrupt officials, to get off scot-free, while the victims are made to bear the brunt of our frustrations, anxieties and even xenophobia during the lockdown.

Coming back to the Alor Star court ruling, it is heartening to see a judge taking the vulnerabilities of the accused Rohingya into consideration. After all, neither prison nor caning is a solution to human trafficking, which is a regional and global phenomenon that cannot be “whisked away” by punishing victims.

It is high time for Malaysians to increase pressure on the authorities to address the issue in an earnest, holistic manner. – July 27, 2020.

* Josh Hong is a keen watcher of domestic and international politics, who longs for the day when Malaysians master the art of self-mockery. He has spent the last 15 years trying to win his feline friends’ favour as he considers it an endeavour more worthwhile than trusting politicians, aspiring also to be a tea and coffee connoisseur.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.