IN response to the recently released 2018 Trafficking in Persons (TIP) report by the US State Department, which saw Malaysia slip one step into the Tier 2 Watch List, the Home Minister has said (among other things) that the government will consider amending the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670) by enhancing the sentences on offenders.
It may be true that enhanced penalties, including a mandatory spell in prison, may discourage a few would-be human traffickers.
However, the higher penalty would not address a more fundamental problem, which is the failure of the authorities such as the police, Immigration Department, Human Resources Department and Attorney General’s Chambers to correctly identify cases of human trafficking as such.
Consequently, traffickers who should have been charged under Act 670 are charged for lesser offences such as wrongful confinement, non-payment of wages or cheating, or they simply go free.
Civil society organisations such as Tenaganita, which have long worked with migrant workers, have expressed frustration that in many cases where indicators of forced labour are clearly present, the authorities seem to be stymied by a narrow, literal interpretation of the language of the Act, preventing them from using the Act to bring traffickers to justice.
It is suggested that they learn from other jurisdictions on how to interpret and to use the Act.
Enhanced penalties under the Act may be fine but they will serve little purpose unless the traffickers are charged.
To make matters worse, the victims of human trafficking are themselves charged for various offences under the Immigration Act, such as not being in possession of valid travel documents or working without a valid permit.
In this context, it is worth noting that the Immigration Department’s decision to embark on a massive crackdown on undocumented migrant workers is a flawed move because it does not address the underlying reasons for being undocumented.
Unless serious consideration is given to factors such as cheating and unfair practices by agents (including those appointed by the Immigration Department), corrupt immigration personnel, irresponsible employers who do not ensure proper documentation for their migrant workers, and police officers who fail to investigate reports of human trafficking, the director-general of the Immigration Department will be guilty of a grave injustice towards thousands of undocumented migrant workers who are simply victims of opaque and convoluted policies and procedures.
The problem of undocumented workers and human trafficking has plagued our country for far too long. The relevant government agencies of Malaysia Baharu such as Immigration, Human Resources, Police and the Attorney General’s Chambers should conduct extensive consultations individually and jointly with other stakeholders, including labour unions, employers’ organisations and NGOs such as Tenaganita, to identify gaps in current policies and practices and to work out a comprehensive, integrated and internally consistent policy and plan to combat human trafficking and to manage migrant workers.
JOSEPH PAUL MALIAMAUV
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