LETTER | Time to reflect on Malaysia's downgrade in human trafficking report

LETTER | It is regrettable that Malaysia was downgraded to Tier 3 in the US Trafficking in Persons Report, although this was expected given that the report highlighted serious allegations of inactions of the government to tackle human trafficking syndicates and corruption amongst its enforcement officials.

The government should take this downgrade as a wake up call to do more to combat human trafficking. The rubber industry and palm oil companies were singled out as hotbeds for human trafficking activities but the report alleged that the government turned a blind eye to the allegations, rather prosecuting the employers in the rubber industry under the Worker’s Minimum Standards of Housing and Amenities Act for “inhumane living conditions in migrant workers’ dormitories”. No investigation has so far been initiated in the palm oil industry.

It’s pointless to write and rewrite policies on paper if the implementation is poor. The government should get down to serious business of reining in the companies that continue to violate the rights of migrant workers. The report cited that the government lacked labour inspectors to carry out inspection, a problem we have been hearing so very often. Neither has the government seriously addressed this issue, nor has it allocated a bigger budget to the Human Resources Ministry to increase the number of labour inspectors.

In relation to prosecution, the report also cited that the government did not report efforts on cross border collaborations with foreign law enforcement to investigate or prosecute. This omission is quite telling given that most trafficking cases involve syndicates that operate in countries of origin and countries of destination. Merely prosecuting the end perpetrator i.e. the employer will not do much to tackle the chain of human trafficking.

The report also cited a lack of coordination amongst the different government agencies. This is despite the relevant agencies serving in the Council for Anti-Trafficking in Persons (Mapo) and meeting regularly. Perhaps it is about time the Home Ministry relinquishes its chairpersonship of the council and let it be placed under the Prime Minister’s Department to allow Mapo’s secretariat to carry out its functions more independently. While MAPO’s secretariat is aptly helmed, it is duty bound to the chair of Mapo. However, the report points extensively at enforcement agencies under the purview of the Home Ministry as main reasons for Malaysia’s failure to combat human trafficking more effectively.

Here is where we see a conflict of interest for MAPO’s secretariat to function according to its given mandate.

The report highlighted many of the Home Ministry’s failures e.g. “law enforcement not proactively investigating potential trafficking crimes… sometimes referred potential victims for immigration violation…”. The report also cited that the government arrested 41 law enforcement personnel (all under the purview of the ministry), including a case against the former deputy prime minister, who also served as home minister for corruption. But nothing seems to shake MOHA despite all these arrests and charges.

It seems like business as usual. Most civil society organisations will tell you, the Home Ministry is one of the most difficult ministries to engage with, often giving no opportunities for engagement. Their lack of communication with civil society and other relevant stakeholders is one the main reasons their migration policies do not reflect the reality on the ground. For this very reason, civil society has long advocated for the Human Resources Ministry to helm the migration portfolio and to address issues through the labour lens rather than the security lens.

The report also highlighted that only 26 individuals were convicted under the Passport Act 1966. This number is miniscule given that it is common knowledge and industrial practice for employers to hold passports of migrant workers in the false notion that it will prevent workers from running away. Employers fail to recognise that the workers will run away if they continue to violate migrant workers’ rights. Besides, even if the worker keeps possession of the passport, the worker is not able to change employment without the consent of the original employer. Keeping workers’ passports only exposes the workers to arrest and detention by enforcement officials, nurtured in a system which regulates a person’s right to live peacefully in Malaysia on an identity document.

We note that the Attorney-General’s Chambers (AGC) has increased the specialist deputy public prosecutor (DPP) from 69 to 73. However, we invite the AGC to have a serious discussion with the Bar Council Migrants, Refugees and Immigration Affairs Committee on expanding the interpretation of coercion to recognise mental coercion. The requirement of physical restraint is hampering cases. It’s not rocket science that a person can be confined and violated with mental coercion either by threat, words etc to him/herself or their loved ones in the absence of physical restraint. As for migrants, these threats are all too real especially when they are without documents in a foreign land and authorities are waiting to arrest them at any time.

DPPs cited language barriers in their engagement with victims of trafficking. This is the same issue civil society organisations face when dealing with migrants. Civil societies most often engage migrant leaders who can speak Bahasa Malaysia or English as interpreters. Although some government agencies have collaborated with a few migrant community organisations, the agencies have yet to fully tap into their expertise. The government should engage the migrant community leaders, foreign spouses, foreign language teachers and embassy officials in an institutionalised system to assist in interpretation. Apart from interpretation, migrant community organisations are a good source to understand the culture of human trafficking in the countries of origin and the vulnerabilities of the migrants. This will certainly help the DPPs in framing their cases better from a victim’s point of view.

Sheltering and feeding victims of trafficking are insufficient comforts without the victims knowing the process and progress of their cases. They are the victims; they need to know what they are facing and they need reassurance that they will be safe.

You cannot gain the trust of the victims without including them in the process. It is only human nature that a victim who has gone through a horrible ordeal would want to be with family, so no surprise for the victim to insist on going home rather than staying in a shelter with strangers. The current once a month phone call to families back home seems inadequate, which is one of the reasons why victims prefer not to cooperate with the DPPs and insist on going home. Authorities should look at providing victims more access to their families e.g. video calls or allowing family members to visit the victim, where necessary, and if the victim’s presence in Malaysia is pertinent to the case.

The report cited victims taken to court in handcuffs. What exactly is the purpose of this? Is the victim prone to self-harm or escaping? If that is the case, is the victim being provided adequate psychological counselling? Is there any other way the victim can be brought to court without the need for handcuffs? The report cited that the government lacked sufficient “…qualified mental health counsellors to conduct the required psycho-social evaluation during the appointed 21-day timeframe”.

The report also cited inadequate medical screening, lack of access to reproductive health and dental services including no medical staff in shelters. With the large number of doctors available in the country, and the issue of contract doctors taking heel at the moment, it’s a wonder why medical healthcare is an issue in the shelters. A collaboration with the Health Ministry and the Malaysian Medical Association could possibly pave the way to some useful solutions.

It’s commendable that the government allocated a large budget for Mapo to operate, including creating awareness through television and other electronic media, although the report does not state whether these efforts lead to victims being rescued.

The question is: Are these efforts reaching the intended target? E.g. in one of the states in the US, all the bars and nightclubs had to display government printed posters with hotlines, in their washrooms. The state’s target was sex trafficked victims.

Trafficking victims usually neither comprehend that they are trafficked victims, nor do they have access to such awareness campaigns. Malaysians themselves do not fully understand a trafficking situation. Perhaps the government should mandate employers to have posters on trafficking within their workplaces. Like Taiwan, every migrant worker coming into Malaysia at entry points should be given a pamphlet in their language, with information of their labour rights and trafficking awareness information including a proper hotline manned by persons able to speak the languages of the migrants. Those who are illiterate should be assisted to understand the content of the pamphlet.

While some may rejoice at Malaysia being downgraded, there is actually nothing to rejoice about. We, as a nation, are looking bad. The downgrade not only reflects on the governments’ failure but the failure of all stakeholders to do better. We need to come together, get back to the drawing board to scrutinise where we went wrong and what we can do better – and it’s up to the government to lead the way. The ball in the government’s court.

SUMITHA SHAANTHINNI KISHNA is a migrant rights lawyer and is director of NGO Our Journey.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.