Tier 3 – not again!

LAST year, we were classified as Tier 3 in the US State Department’s Trafficking in Persons (TIPs) Report (2021).

In its opening remarks, the report says: “… Malaysia does not fully meet the minimum standards for the elimination of trafficking and is not making significant efforts to do so… [therefore, the country] remained on Tier 3”.

It sounds familiar, doesn’t it? It is the same opening remarks as the previous TIPs Report, except that “downgraded” was used instead of “remained”.

It is as if we are always behind the curve and having to go through Groundhog Day, ie, going through the same cycle of bad experience all over again.

Again, “[a]s in previous years, the government did not adequately address or criminally pursue credible allegations from multiple sources alleging [labour] trafficking in the rubber manufacturing industry and palm oil sector, with the government owning 33% of the third-largest palm oil company in the world”.

More worrying is the government’s anti-trafficking policy seems to have slackened – due to lack of focus, prioritisation and concerted effort.

As noted in the TIPs Report (2022), Malaysia’s Anti-Trafficking in Persons and Smuggling of Migrants Act (2007) criminalises labour and sex trafficking, and prescribed punishments of three to 20 years’ imprisonment and a fine.

The report commended the punishments as “sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious offences, such as rape”.

Malaysia’s downgrade comes at a time when we had amended the act for the third time. The first two improvements were passed in 2010 and 2015. The latest was in December 2021, with 17 amendments all told. The key changes were as follows:

1. The definition of human trafficking is widened that included the repeal of the requirement for coercion.

Nevertheless, as the report observed, the same challenge persists: officials did not consistently comprehend the definition of trafficking and continued to interpret requirement as necessitating the physical restraint of a victim.

This meant prosecutors did not pursue many potential trafficking cases – especially in cases where coercion was a primary element used.

Critically, officials also “continued to conflate human trafficking and migrant smuggling, which impeded overall anti-trafficking law enforcement and victim identification efforts”.

2. Increased punishment – in the form of increased prison sentences and introduction of whipping.

The sections are 13, 14, 15A, 19, 26A, 26B, and 26C. In addition, to strengthen the statutory duty to prosecute officials who are complicit in human trafficking and smuggling, amendments also include the insertions of sections 13(f) and 26B(d), which provide that “a public officer who commits an offence of trafficking in persons and smuggling of migrants respectively in the performance of his public duties commits an aggravated offence…” which results in imprisonment for life or for a term not less than five years, and whipping.

3. Specific provision aimed at criminalising the trafficking of a physically or mentally disabled person – with the amended section 14.

4. Provision of protective officers and shelters for victims – with the insertion of section 42(3)m which provides for the Minister for Women, Family and Community Development to be responsible for any matter relating to the management, administration and control over the place of shelter or refuge.

Yet it seems that we still lack the political will and are hampered by institutional(ised) and structural inertia in ensuring that the intended outcomes and provisions are materialised (and on a higher level).

This year’s report has identified several measures to redress the setbacks, among which are:

  • Increase efforts to identify trafficking victims among vulnerable populations, including household workers and workers in the palm oil and rubber manufacturing sectors.
  • Train officials on standard operating procedures (SOPs) for victim identification.
  • Increase efforts to investigate, prosecute, and convict more trafficking cases as distinct from migrant smuggling – including those involving complicit officials and forced labour crimes.
  • Expand labour protections for domestic workers and investigate allegations of domestic worker abuse.
  • Make public the results of investigations involving corrupt officials to increase transparency and deterrence, and hold officials criminally accountable when they violate the law.
  • Increase law enforcement capacity to investigate and prosecute trafficking cases, including by improving interagency co-ordination.
  • Effectively enforce the law prohibiting employers from retaining passports without employees’ consent, including by increasing resources for labour inspectors, and include provisions explicitly stating passports will remain in the employee’s possession in model contracts and future bilateral memoranda of understanding (MOU) with labour source countries.
  • Improve case management and communication with trafficking victims, including the consistent use of interpreters and the victim assistance specialist (VAS) programme.
  • Expand efforts to inform migrant workers of their rights and Malaysian labour laws, including their rights to maintain access to their passports at any time, as well as opportunities for legal remedies to exploitation.
  • Create a system for access to timely and accurate interpretation in victims’ primary languages available to law enforcement, the court system, and shelters.
  • Expand co-operation with civil society groups, including through financial or in-kind support to them to provide some victim rehabilitation services.
  • Eliminate recruitment or placement fees charged to workers by recruiters and ensure recruitment fees are paid by employers.
  • Increase the number of trafficking victims who obtain approval for freedom of movement from shelters, expand freedom of movement to include unchaperoned movement, and increase victims’ access to communication with people outside shelter facilities.
  • Reduce prosecution delays, including by providing improved guidance to prosecutors on pursuing trafficking charges, and increase judicial familiarity with the full range of trafficking crimes, particularly forced labour.
  • Increase efforts to identify trafficking victims from China and North Korea.

Not least, Emir Research calls for a second minister for human resources to oversee the issue of human trafficking and smuggling, from civil society.

This minister will be responsible for all matters pertaining to trafficking in persons and human smuggling and will be the sole minister concerned sitting and representing the government in the anti-trafficking in persons and anti-smuggling of migrants council (Mapo).

Section 6(2) of the 2022 Act has provided for the inclusion of more civil society representation in Mapo – from five to eight persons.

The first five should possess experience and expertise in trafficking, while the other three should specialise in people smuggling.

A paradigm shift by the government remains in order to ensure that the act, together with the weaknesses and gaps identified in the report are fully implemented and enforced.

Trafficking in persons and modern slavery should be conceptualised and regarded as going beyond criminality, ie a breach of national security.

Just as in the case of food security, human trafficking weakens our security and sovereignty. This by enabling the infiltration, exfiltration, penetration and by-passing of the nation’s borders and territory.

This in turn exposes and reinforces weaknesses and defects in as well as undermines our national security, which could be easily exploited in a hypothetical scenario by a potential enemy to carry out terrorist or subversive acts.

Since the Haadyai Accord (1989) between the government of Malaysia and the Communist Party of Malaya, we have not experienced terrorism or any compromise of our national security.

The state should re-think its attitude towards human trafficking and migrant smuggling by importing and integrating anti-insurgency strategies and tactics – of which are we’re very experienced – in the effort to combat modern slavery.

The problem is also linked to the wider issue of systemic corruption and malpractices among enforcement and other public officials.

Tackling the issue of human trafficking and smuggling is, therefore, should also be seen as part of eradicating the scourge of corruption from our society.

Lastly but not least, being on Tier 3 for two years in a row is a huge national and international embarrassment.

Let’s make our way towards Tier 1 and restore the lost shine to our international reputation (which has been marred on other fronts also). – August 1, 2022.

* Jason Loh is head of social, law and human rights at Emir Research.

* 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.

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