Lex; in Breve
The online supplement to our eponymous journal features concise and insightful articles penned by law students from the University of Malaya, as well as guest writers.
11/25/2016 0 Comments
Statistic shows that the number of legal foreign workers in Malaysia amounted to 6.9% of Malaysia’s population of 30 million. The number of foreign workers in Malaysia is so vast that it is equivalent to one-third of the population of Singapore (5.5 million).
However, alarmingly, the actual number of foreign workers could be much higher, in 2014, the United States of America had downgraded Malaysia to tier 3 in its annual Trafficking in Persons Report (TIP). Malaysia's relegation to Tier 3 in the TIP indicates that the country has categorically failed to comply with the most basic international requirements to prevent trafficking and protect victims within its borders.
Malaysian ranking in the international platform is justified by various evidences of forced labour, and prostitution occurring throughout the country.
In 2014, a monitoring group, Verite via The New York Times, reported that about 1/3 of the 200,000 employed migrants in Malaysia are victims of forced labour in the county’s 200 factories. They were forced into hard labour because their passports were confiscated or they were struggling to pay back their high recruitment fees—forcing a person to work with nearly no salary at all. Verite also highlighted the case of a foreign worker at an electronics facility who stated that after deductions for fees, she is left with only around RM 20 at the end of each month, enough only to afford a pack of instant noodles for dinner each night. These migrants are mainly from Bangladesh, India, Myanmar, Nepal, Vietnam and other countries.
As for prostitution, Kuala Lumpur may become the next sex capital of Asia where the size of the Malaysian prostitution industry is calculated at $963.8 million or RM3.68 billion.  It was once the domain of local prostitutes, but recently the majority of prostitutes are from China, Burma, etc. In 2014, the Royal Malaysian Police released a report that over 6000 Chinese, Thai and Vietnamese prostitutes were arrested in a police raid. Despite these raids, one can easily find prostitution activities in areas like Bukit Bintang, Jalan Imbi, and Jalan Sultan Ismail. The fact that these prostitution activities are still going on until now shows evidence of the lack of law enforcement and suggests that corruption is also at work.
Therefore, it can be seen that the situation of human trafficking in Malaysia is worrisome, which would explain why America would downgrade Malaysia's ranking in its TIP report.
The exploitation of foreign workers in Malaysia more often than not results in human trafficking. This begs the question, why is this crime so rampant in Malaysia?
II. Causes of Rampant Human Trafficking
Human trafficking can be caused by a wide array of factors depending on the region, type of trafficking, and cultural and social factors. Among the causes of human trafficking in Malaysia is a lack of job opportunities in the neighbouring countries, the location of Malaysia that is strategic to traffic the victims, tactics employed by trafficking syndicates and, the insufficient laws imposed regarding prosecution, protection, and prevention of this crime.
Firstly, a lack of opportunity for economic growth in neighbouring countries leads many individuals to join criminal networks that traffic young girls and women for sexual exploitation. Even if they are not the traffickers, they are the ones who become the victims. This unfortunate reality is evident when the majority of trafficking victims are foreign workers who migrate willingly to Malaysia from Indonesia, Mongolia, Nepal, India, Thailand, China, etc.
Secondly, another factor that encourages this desperate move is the location of Malaysia itself. Malaysia’s location acts as a transit country for men, women, and children from other regions such as Cambodia, Iran, India, Uzbekistan and others. The fact that our coastline is permeable, and often difficult to be monitored has contributed to the growth of this syndicate. Besides, Malaysia is perceived to be a lucrative destination due to its rapid economic development and the demand for cheap labour in many industries is high.
Thirdly, the ingenious tactics used by traffickers to trick and trap victims in their syndicate. No one willingly signs up to become a slave, they are normally forced into it. There are several ways in which a person may become a victim of human trafficking.
The most common tactic employed involves the use of coercion or deceit. Traffickers would use deceptive advertisements for work abroad in local newspapers and employment agencies to mislead people into believing that they will be migrating to obtain legitimate jobs. Basically when a migrant is placed under an abusive environment during their journey or at their destination, and when their rights are drastically limited or completely denied, the case in question qualifies as human trafficking. This event also unfolded in Malaysia according to Amnesty International Nepal which reported that many people who migrate to Malaysia to work have had their passport confiscated by their agents and are being forced to work in factories. In an example given by an Indian newspaper, an Indian based agency offered youths to work in a lucrative job at Omega Wood Industry in Kuala Lumpur. They were promised a payment of 100,000 rupees, but upon arrival, their passports and visas were snatched by a member of the placement agency. Expecting an office job, these people were surprised to find that they were forced to do physical labour and were kept in inhumane conditions.
Another way a person could end up being trafficked is being drugged and kidnapped into forced labour such as prostitution. According to Majlis Anti-Pemerdangangan Orang (MAPO), this method is usually used on children below the age of 18. The reason behind this is that children are easier to manipulate into human trafficking. After being kidnapped or sold off by their parents, they can be trafficked for three purposes: A teenager is usually exploited for sex or prostitution; children under 10, for begging; while babies are usually sold to childless couples. According to statistics by MAPO, 118 cases of child trafficking were reported in Malaysia between February 2008 and October 2010.
Last but not least, Malaysia’s effort in tackling the issue of human trafficking in the aspects of prosecution, protection, and prevention are not sufficient or satisfactory.
Inadequate prosecution - Although Malaysia’s 2007 Anti-Trafficking in Persons Act (Amended in 2010) prohibits all forms of human trafficking which have sufficiently stringent provisions similar to those prescribed for other serious offenses, such as rape, but it turns out that in 2014, the government only reported 186 investigations of potential trafficking cases.
Inhumane victim protection - Victim protection efforts remain inadequate in Malaysia. Victims identified by Malaysian authorities are adjudicated under a “protective order” that triggers their forcible detention in “shelters,” where some are isolated, unable to work or earn income, and have little or no access to legal or psychological assistance provided by the government or NGOs.
Ineffective prevention - Meanwhile, on prevention, Majlis Anti-Pemerdangangan Orang (MAPO) was active in coordinating anti-trafficking efforts but lacked adequate budget support. Our laws had failed to protect the rights of the workers and this will be further elaborated in the latter part of this article.
After analysing the causes of and the contributing factors to human trafficking in depth, another question arises- if Malaysia seems to be aware of the root of the problems, then has there been any effective measures taken to counter them?
III. Current Laws to Counter Human Trafficking
In Malaysia, the law governing human trafficking is the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007. A council for human trafficking as also been established under the Act to coordinate the matters relating human trafficking.
The 2010 amendment merged the Anti-Trafficking in Persons and Anti-Smuggling of Migrants into one act. The consequences of this blanket policy are that the victims of trafficking are treated the same as smuggled migrants—which is a wrong move to make as the two terms are not one and the same. Smuggled migrants are those fleeing from situations of extreme poverty and are considered to be willing participants of this transnational offence.  In contrast, trafficked persons are those who have been coerced, deceived and exploited. This blanket policy causes victims of human trafficking to be treated as criminals first as they are mistaken to be smuggled migrants, and thus, the victims do not receive immediate protection as they are deemed to be guilty until they are proven innocent.
The amendment in 2015 gives unclear definitions of smuggled migrants and trafficking in persons as there are no clear boundaries in the Act. Furthermore, the lengthy investigation process causes problems to the migrant workers where they need to stay unpaid until they are proven innocent. However, there are improvements through the 2015 amendments where the migrants are not restrained and may move freely and find work during their Interim Protection Order (IPO), and financial remedies will be provided to them if they are found out to be victims of trafficking.
IV. Bodies in Charge of Monitoring and Regulating Human Trafficking
When there are laws, there must be implementation. In terms of enforcement, there are a few agencies responsible in handling migrant workers.
Firstly, the role of controlling the flow of migrant workers into Malaysia has been mandated to the Immigration Department of Ministry of Home Affair (MOHA). The law governing the policies is the Immigration Act 1959. As a safety net, as of 2006, the Malaysian Government started operating Immigration Courts in several of its detention centres. These were established with the purpose of streamlining the deportation process by using the detention centres as one-stop centres where migrants are detained, tried and punished for illegal entry and stay.
Secondly, specifically for the human trafficking issue, the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO) is responsible for overseeing the implementation of the anti-trafficking law, which includes representatives from multiple ministries and is chaired by the MOHA. An anti-trafficking unit has been created under the Royal Malaysian Police to investigate trafficking offences, and specialised positions have been established at the Immigration Department and Attorney General’s Chamber.
Recruitment agencies are also regulatory agencies and they are required to obtain a license to operate from the Ministry of Human Resources (MOHR), and an additional endorsement is required for placement of workers overseas. The regulatory procedures for recruitment of migrant workers are provided by the Private Employment Agency Act 1981.
V. Problems With Laws & Bodies Regulating Human Trafficking
Unfortunately, despite having enforcement and regulatory agencies, these bodies are flawed in many ways rendering the laws and regulations ineffective.
Firstly, the immigration authorities hardly put any attempt to identify cases of trafficking. According to a recent Human Rights Watch report, Malaysia’s employment laws do not extend equal protection to foreign workers, leaving their work hours, payment of overtime wages, rest days, and compensation for workplace injuries unregulated. Upon filing of complaints, the employer would simply fire the workers, stripping them off of their work permit resulting in immediate deportation and therefore there is not much room for further investigation to identify any abuses or trafficking that exist. Furthermore, immigration authorities and police detain and deport workers caught without valid documents, rarely identifying cases of abuse or trafficking as well.
Evidently, during the last several years, an increasing number of reports have documented serious labour rights abuses against migrant workers in Malaysia, including cases of forced labour and human trafficking. First, research by a non-governmental organisation in 2014 found that nearly one-third of their sample of migrant workers employed in electronics factories were engaged in forced labour which amounts to trafficking. In its 2016 Trafficking in Persons Report, the US Department of State found that some migrant workers on agricultural and palm oil plantations, at construction sites, in the electronics industry, and domestic work are subjected to labour practices indicative of being coerced into labour.
They are subjected to cruelties such as restrictions on movement, withholding of wages, contract substitution, confiscation of passports and debt bondage. Next, a mission report of the United Nations Special Rapporteur on Trafficking in Persons in 2015 documented victims of trafficking employed in a similar range of sectors, including agricultural, construction, manufacturing and domestic work.
Secondly, as identified by Tenaganita, an NGO providing shelter and legal assistance to victims of trafficking and forced labour, there are backlashes coming from the policy under the Anti-Trafficking in Persons Act which places redress under the framework of criminal law. After informing migrant workers that they may not receive their due wages soon if ever in following through with such a case, most opt to seek financial remedy through a negotiated settlement so that they can return home.  If they do decide to go through with a trafficking case, they run the substantial risk that it will not be resolved within three months, which is the maximum period that migrants are permitted to stay in Malaysia while they have a court case pending and is often insufficient.
Recruitment agencies on the other hand are facing problems from outdated law. Private Employment Agency Act 1981 was originally formulated with the intention of regulating recruitment agencies providing services for domestic employment and sending Malaysian workers abroad. However, for the current context where inbound recruitment of migrant workers is much more prevalent, a problem arises where it has become outdated and unable to cater to many arising matters.
Other than that, the law governing the use of outsourcing companies is significantly flawed. The use of direct recruitment in countries of origin or an outsourcing company were allowed for companies hiring over 50 migrant workers. The legal framework governing the operations of these companies was not determined until 2010 when the Committee decided that the Private Employment Agency Act would be applied. However, it remains unclear how the provisions of the law have been used to regulate outsourcing companies as Ministry of Home Affair has been administratively responsible for the issuing of licenses rather than Ministry of Human Resource. This means that there are two different departments governing the recruitment agencies which creates confusion on the jurisdiction of each department in dealing with matters about outsourcing companies regulations.
Finally, the policy allowing the recruitment using outsourcing companies quickly spawned a massive new recruitment industry within Malaysia, growing to over 400 outsourcing companies at its peak. Even for “direct recruitment” of migrant workers, outsourcing firms were often heavily involved, acting as the employer’s representative to source workers in countries of origin and handling the administrative requirements. The scope of regulatory responsibilities created by this new system proved beyond the capacity of the Government to manage effectively, leading to major problems with misconduct by outsourcing companies.
As a result, human trafficking has been blooming rapidly replacing the trading of drugs and has been reported to be the largest illegal, lucrative business in the world. This inhumane activity has brought various impacts to our country.
VI. Socioeconomic Impacts of Rampant Human Trafficking
From a social perspective, the main impact to the society is the fact that women and children were forced into sexual entertainment. A significant number of young foreign women are recruited for work in Malaysian restaurants and hotels, some of whom migrate through the use of “Guest Relations Officer” visas, but subsequently, are coerced into Malaysia’s commercial sex trade. As a consequence, most of the victims exposed to a high risk of contracting various sexually transmitted diseases and HIV/AIDS for life.
Human trafficking activities also reflect a negative image of our country, and evidently, it implicates security measures on borders and the effectiveness of law of our country. As a result, the tourism industry of our country will be affected, and this will also infuse politics and economics instability of our country. Such bad impressions may impinge on bilateral relations with foreign investors and subsequently impede future investments. Apart from that, a state necessitates the spending of a huge amount to prevent this crime to rescue missions as well as to prosecute. Moreover, the possibility for bribery to take place is high as traffickers’ approach of crossing borders and places by using this method. This is one of the reasons for this crime to protract globally thus, in need of collective involvement from various actors at the state and international level.
From an economic perspective, the cheap labour has distorted the economy and the job market. The demand for cheap labour from unscrupulous companies such as construction sites, massage salons, food and beverage outlets, etc. may give rise to traffickers who want to gain profit from this and subsequently, they will be able to supply such demand. Traffickers who cooperate with agents may lull unsuspecting workers with ‘better’ job opportunities abroad and then confiscate their passports once they have arrived at their destination. Thus, unfortunate migrant workers may fall into forced labour and servitude. They are forced to work for a measly amount to pay off their debts and are unable to free themselves from deplorable conditions because they fear that their lives may be in danger. As a result, skilled and qualified Malaysians are often replaced by unskilled, cheap labour which is counter-productive to our country’s growth.
Furthermore, with no proper background checks on past employment history or personal backgrounds, the origins of these workers (where they come from and how they got here) are unclear. Human trafficking destroys the legitimacy of commerce and undermines honest commercial institutions. Malaysia’s ‘wholesome’ image as a family-friendly tourism destination and as a credible location for businesses to invest is jeopardised as our country can no longer guarantee fair labour practices or civil liberties – two important pillars that underpin healthy progress. A lack of opportunity for economic growth in neighbouring countries leads many individuals to join criminal networks that “traffic young girls and women for sexual exploitation. Besides that, human trafficking cause many implications to many sectors such as competition in trading and labours among the locals, economy and threaten the security and sovereignty of the territory. Many employers in Malaysia are more attracted to taking illegal immigrants because of their lower wages; it causes competition in trading and labour among the locals.
Not only this, but the economic problem is propounded as the government losses millions of Ringgit from a total collection of taxes due to illegal workers which could have been of good use for the development of the country.
VII. Conclusion & Recommendation
In conclusion, the influx of foreign workers has contributed to the human trafficking activities in Malaysia mainly due to ineffective enforcement of laws, flawed immigration policies and victimisation of foreign workers.
In curbing the problems, the immigration policies need to be revamped. The government needs to refine the prosecution system on offenders, offer immediate protection to the victims, and prevent new cases of trafficking. Intensive training should be provided to strengthen the skills of law enforcement on how to identify suspected victims of the syndicates and to differentiate them from smuggled workers.
Furthermore, the governing law needs to be more specialised, and the enforcement of law needs to be enhanced. The government needs to separate the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 to prevent harmful blanket policies and treatments. Malaysia also needs to have clear definitions of human trafficking and smuggling by ratifying both of the UN Protocols.
Lastly, it is also important that society needs to change our negative perception of migrant workers and stop arbitrarily persecuting them like criminals. There should be rigorous active efforts to raise awareness on the issues pertaining to persecution of migrant workers in order to eliminate the negative stereotypes that is contributory to the arbitrary treatment of the workers.
This research article was written by: Amanda Alexandria Funk, Hanan Khaleeda Binti Fadzil, Hazeeq Fadzli Bin Hasrul Sani, Joseph Khor Sheng Yang, Lim Khek Theen, Mak Yian Sinn, Mandy Wong Hui Teen, Nigel Jong Tze Yi, Nur Farain Syuhada Binti Abu, Nurul Afrina Binti Zulkifri, Ong Ying Teng, Ting Shee Ching, Ting Yunn Lu & Siaw Chooi Teng, law students at the University of Malaya (Edited by Hanan Khaleeda)