Human trafficking: Malaysia in danger of tipping the balance


  • Nation
  • Sunday, 13 Oct 2013

Economic sanctions loom if Malaysia does not improve in the human trafficking rankings.

MALAYSIA worked hard to step up its efforts in combating human trafficking after it dropped to Tier 3 in the Trafficking in Persons (TIP) report released by the US State Department in 2009, and managed to move up to Tier 2 in the following year. Tier 3 refers to the ranking for countries that are not fully complying or not making significant efforts to comply with the minimum standards.

If you take the chance for them to live and work on their own, they become better witnesses and the prosecution number goes up.

However, we have been stuck on Tier 2 Watch List for the last four years, and are in danger of being auto-downgraded back to Tier 3 if we don’t show increasing efforts to eliminate human trafficking in the country next year. A Tier 3 ranking puts Malaysia at risk of economic sanctions. Sunday Star spoke to Luis CdeBaca, the ambassador-at-large of the US State Department’s Office to Monitor and Combat Trafficking in Persons when he was in town recently.

> Can Malaysia still avoid an auto-downgrade?

The best thing any country can do when the TIP report comes out is to look at the recom­mendations, which are based on international norms and provide a measure of what we need to achieve.

The auto-downgrade issue is an important one and something that is facing us when we look at next year’s TIP report, but human trafficking in Malaysia is not about the auto-downgrade or the TIP report.

The trafficking situation in Malaysia is about what is facing the people here, whether they are ordinary folks looking for different opportunities or girls who are trapped in the brothels here or foreign workers who come over looking for a better life and find themselves trapped and exploited here. That is trafficking in Malaysia. The US TIP report is only a snapshot, a diagnosis of the problem.

So, next year’s TIP report, while important, is not what we are really here about. What we are really here for is to see how the US can work with Malaysia to ensure that victims can have a good outcome and the perpetrators can be caught and put into prison for their crime.

> What kind of evidence of “increasing efforts” is the TIP office looking for?

Under the Trafficking Victims Protection Act (TVPA), we are supposed to look at the intensification of efforts by individual countries in combating human trafficking.

The trajectory needs to move up from year to year but the trajectory has been kind of flat for Malaysia. The number of cases solved and victims identified, the level of efforts made in the last two years have been stagnant. It’s been kind of the same – at that level of doing something but not seeing an awful lot of results. For example, Malaysia increased the number of traffickers convicted from 17 to 21 last year. The “ improvement” has not been significant.

> Why is Malaysia finding it hard to move from the Tier Two watch list ranking?

When we entered the trafficking agreement and Malaysia’s Anti-Trafficking in Persons Act was passed in 2007, the structures set up then were predicated on the notion that the victims were female and victims of sex trafficking and foreign.

Six years on, we see that not all the victims are female, in sex trafficking or foreign. There are also the maids, factory workers and other labour trafficking victims.

> Malaysia received a waiver from an automatic downgrade to Tier 3 because the Government through the Council of Anti-trafficking in Persons and Anti-smuggling of Migrants (Mapo) proposed a plan of action to address the weaknesses in their anti-human trafficking strategies. How far did we meet the plan of action?

The plan of action proposed was sufficient but we looked at it and see if it has been carried out, has there been an increase in the trajectory of the government? What we see is that there are some limitations, perhaps structural limitations in the 2007 law that have kept the plan of action from achieving serious results.

The victims end up leaving after 90 days, so there is no incentive for them to cooperate with the prosecution.

If I were a lawyer and know that my client can be in protective custody for 90 days before being put on a plane home, or I can put her on flight home straight away and keep her from being locked up, then the more logical choice would be to get the victim home. Another issue is the way the shelters are structured and the interplay of the shelter with the authorities.

Malaysia also has a legacy problem that when people think about human trafficking, they think of prostitution.

They don’t think about child prostitutes or a man tricked to work on a fishing boat; they think of a Vietnamese or Russian woman who has been kidnapped or tricked to travel here.

>Does it seem like Malaysia is not doing enough because human trafficking incidences are increasing?

Human trafficking is a hidden crime, so it is difficult to get the accurate assessment of the crime happening. You can’t get an accurate sense of whether human trafficking is going up or going down. What we know is that there are problems of involuntary servitude in various sectors of Malaysian economy like domestic workers and the fishing industry.

But we often see that when the police and prosecutors and NGOS are working together well, more cases will get solved. There is an increase in the sophistication of response. Making sure that the response system will reach those sectors with good outcome is important for Malaysia in their efforts to combat human trafficking.

> The local outsourcing companies are unhappy that the TIP report put their name in a “bad light”, which is affecting their business. How can they improve their operations?

It is not the fight against trafficking that is causing reputational harm but the bad bosses who are causing the reputational harm.

Whatever they are called – outsourcing companies, placement companies or labour recruiters – as long as there is equal access to information by workers and kept promises, foreign labour can be a good thing for both the source/sending countries and destination countries.

But if the guest worker economy is predicated on people getting told one thing and given another, or if the guest worker programme is allowed to operate where they can be given new contracts once they reach the destination country, that has lower wage, then that is an abuse and this is considered human trafficking.

It is in the interest of the labour recruiting companies to have a clean labour recruiting system where you don’t have these kinds of abuses. It is in their own interest that they don’t have factories that have bosses who take the passports, or beat and threaten their workers.

> Many employers believe that it is not forced labour if the migrant workers sign up willingly and pay the levy to work in Malaysia. How do we raise their awareness?

Under the UN human trafficking protocol, the initial consent of the victim is immaterial. It is like the notion of marital rape or domestic violence, Just because someone agrees to marry somebody, it does not mean that she agreed to let him rape her or beat her up.

Just because someone says, “Ok, I’ll work for you,” it does not mean she is agreeing to be abused, not get paid, has her passport taken or be imprisoned at the workplace.

> There are calls for the US Government to reveal the NGOs and related parties that provided information for the report because they claim that the data may be inaccurate. How can we be assured that your data is fair and not biased?

We cross-reference all the data that we get. We look at data from every source: we look at governmental data, data from the civil society, data from academic research, data from the UN, data from press reports. We meet with all stakeholders and the data we receive is mainly from the Government and our official counterparts

We try to get our information from as many sources as we can but we also make sure that the data is accurate and true.

Sometimes, we may find out about a case from the press. Then we go to the Police and Attorney-General’s chambers to find out more.

> How important is it to have transparency in the Government’s plan to curb human trafficking, specifically in the national anti-human trafficking action plan?

What we have found out is that the more transparent the Government is about their fight against trafficking, the better job they do.

And I think the spirit that Mapo has in working with NGOs as a member of their inter-agency taskforce is the spirit that we hope to see more and more.

One of the things that I’ve learnt as a prosecutor in the US Justice Department is that law enforcement is not good at working with victims on their own, without the NGOs involved.

Part of it is that it is the NGOs who work with victims and they are the ones most victims trust and are comfortable talking to. Working with NGOs as partners to get justice for the victims makes the Government more efficient in the combat against human trafficking. They need to take a chance and trust each other and work together – it’s about taking that first step before you can build trust between each other.

> One of the reasons mentioned for Malaysia’s bad assessment is its identification and protection system of victims. How can Malaysia improve that?

What we have seen in countries around the world is a reluctance to let the victims live on their own or work over an extended period.

But we have seen in country after country that if you take the chance for them to live and work on their own, they become better witnesses and the prosecution number goes up.

Many come over to work and if the Malaysian government gives them a chance to work and earn money to send home, they are going to do that.

It will take some effort on the part of the government to keep in touch with them and monitor them but if all the agencies work together, the victims will not run away.

Anyway, there are reportedly only about 300 rescued victims (mainly women) in the shelter in the last six months, so it is not a big number compared to the 2.3 million illegal migrants that Malaysia supposedly has here, some 300 women are not going to change the dynamics of immigration in Malaysia

It’s the notion of what we do with these victims that is important, so it makes sense to provide care and immigration remedy, long-term legal status and protection for them as evidence from around the world shows that we will have good witnesses if we do that. And they will stay for trial.

> What are good examples for Malaysia to learn from to improve its anti-human trafficking strategies?

Taiwan was in the same situation but they started going to the ground and worked with NGOs. They also co-operated with Tier 1 countries and tried to see what they could learn from them. One aspect that Taiwan authorities looked at was victims’ protection, and they decided to give them work permits and allowed them to go in and out of the shelter. That has been successful as the victims, especially the women, became empowered and were able to help with the prosecution of their traffickers.

Another successful example is the Philippines which managed to clear its backlog and expedite its human trafficking cases in court.

Previously, it took them years to get a case to court, in which time, the victims would have run away or retracted their testimony as they thought they would never get justice. It allowed the prosecutors to have a chance at convicting the traffickers and more importantly, let the victims know that the people who did this to them will get the justice they deserved.

Next week: Malaysia’s new strategies to combat human trafficking.


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