Tier 3 – not again!

Worryingly, the government’s anti-trafficking policy implementation thrust seems to have slackened – due to lack of focus, prioritisation and concerted effort.

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Published in MalayMail, Astro Awani, Business Today and The Malaysian Insight, image by Astro Awani.

Last year, we were classified under Tier 3 of the US State Department’s Trafficking in Persons (TIPs) Report (2021). The US Department in its TIPs Report (2022) has this to say – in the opening remarks: “… 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”. 

Sounds familiar, doesn’t it? It’s the same opening remarks as in the TIPs Report (2021) except that “downgraded” was used instead of “remained”.

It’s as if that we are always behind the “curve” and having to step into Groundhog Day, i.e., 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 percent of the third-largest palm oil company in the world”.     

Worryingly, the government’s anti-trafficking policy implementation thrust 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 (Atipsom) Act (2007) criminalises labour trafficking and sex trafficking and prescribed punishments of three to 20 years’ imprisonment and a fine. The Report commended the prescribed punishments as “sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious offenses, such as rape”. 

Malaysia’s downgrade comes at a time when we had amended Atipsom for the third time already. Two improvements to Atipsom were passed by Parliament in 2010 and 2015. The latest was in December 2021 – in the form of Atipsom (Amendment) Act (2022). 

Some 17 amendments were made for the 2022 Act. 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 whereby 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 (i.e., in general and all-inclusive) was a primary element used by traffickers. 

Critically, officials also “continued to conflate human trafficking [i.e., where there exists elements of coercion or force] and migrant smuggling [which usually denotes voluntary submission], which impeded overall anti-trafficking law enforcement and victim identification efforts”.

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

The relevant sections are Sections 13, 14, 15A, 19, 26A, 26B, and 26C. In addition, Furthermore, 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) of Atipsom 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. 

  1. Specific provision aimed at criminalising the trafficking of a physically or mentally disabled person – with the amended section 14.
  1. Provision of protective officers and shelters for victims – with the insertion of section 42(3) 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.

Notwithstanding and despite all three amendments, including the 2022 Act, 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). 

The TIPs Report (2022) has identified several measures to redress the setbacks.

Among these are:

  • Increase efforts to identify trafficking victims among vulnerable populations, including household workers and workers in the palm oil and rubber manufacturing sectors. 
  • Train relevant officials, including police, labour inspectors, and immigration officials, on standard operating procedures (SOPs) for victim identification that include information on trafficking indicators. 
  • 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 coordination.
  • 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 cooperation with NGOs, including through financial or in-kind support to NGOs 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 the People’s Republic of China (PRC) (and Democratic People’s Republic of Korea/North Korea) workers on Chinese government-affiliated infrastructure projects.

Not least, EMIR Research calls for a Second Minister for Human Resources (Human Trafficking and Smuggling) to be appointed – from civil society. The Second Minister will take over from the Minister of Human Resources on all matters pertaining to trafficking in persons and human smuggling and will be the sole minister concerned sitting and representing the government in Mapo ((Anti-Trafficking in Persons and Anti-Smuggling of Migrants Council).

Already section 6(2) of the 2022 Act has provided for the inclusion of more members from NGOs in Mapo – by increasing their participation from five to eight persons. Five persons are to possess experience, knowledge and expertise in problems and issues relating to trafficking in persons whilst the other three should have experience, knowledge and expertise in problems and issues relating to smuggling of migrants.

A paradigm shift by the government remains in order to ensure that the 2022 Act together with the weaknesses and gaps identified in the TIPS Report (2022) are fully implemented and enforced. 

Trafficking in persons and modern slavery should be conceptualised and regarded as going beyond criminality, i.e., 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/aggressor – to carry out terrorist or subversive acts, e.g., decapitation tactic aimed at the centre of gravity, i.e., the political and administrative elite or leadership. 

Although even since the Haadyai Accord (1989) between the government of Malaysia and the Communist Party of Malaya (CPM), we have never experienced any terrorist threat – or even to the extent like the situation in the Republic of Korea (ROK) with the North Korean (DPRK) commando raid on the presidential Blue House in 1968, any compromise of our national security that isn’t seriously addressed risks undermining our nation’s defence strategy and capabilities. 

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 second 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). 

Jason Loh Seong Wei is Head of Social, Law & Human Rights at EMIR Research, an independent think tank focussed on strategic policy recommendations based on rigorous research.

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