Preliminary findings, UN Special Rapporteur on Trafficking in persons, especially women and children, Maria Grazia Giammarinaro Visit to Malaysia (23 -28 February 2015)

2 March

Trafficking in persons: UN human rights expert urges Malaysia to focus efforts on victims

Background and context

At the invitation of the Government, I conducted an official visit to the country from 23 to 28 February 2015 to examine the phenomenon of trafficking in person, identify challenges and progress made, assess responses taken to combat trafficking in persons and engage constructively with relevant authorities and actors on key issues and possible ways of addressing them.

I would like to express my sincere gratitude to the Government for the invitation as well as the full cooperation extended to me prior and during the visit which demonstrates the country’s commitment in combatting trafficking in persons. While in Malaysia, I visited Kuala Lumpur, Melaka, Rembau and Kota Kinabalu in Sabah and interacted with various interlocutors including the representatives of relevant authorities at the Federal and State levels, Human Rights Commission (SUHAKAM) and members of the civil society. I also visited an Immigration Detention Center as well as 3 shelters for women, children and men victims of trafficking and engaged with them.  Finally, I exchanged with representatives of the United Nations Agencies and programmes as well as representatives of the diplomatic community in Malaysia.

Malaysia is a destination and, to a lesser extent, a source and transit country for men, women, and girls and boys subjected to trafficking in persons for the purpose of forced labour and sexual exploitation.

Given its geographic location and its economic development, Malaysia has a large influx of migrant workers. There is an estimated 2 million documented and 2 million or more undocumented migrant workers who willingly embark on the journey to Malaysia from other countries in the region in search of better employment opportunities in the agricultural, fishing, construction, manufacturing and electronic sectors as well as to undertake domestic work. While not all cases of migration result in trafficking situation, there are cases of mixed migration that end up in trafficking for the purpose of labour exploitation. Cases of trafficking involving primarily semi-skilled, low skilled male migrant workers from the Asia Pacific region and the South-West Asia region were identified. The vulnerable situation of such migrant workers is often exploited for labor trafficking by unscrupulous recruitment agents -in source countries and Malaysia- and employers most commonly through breaches of contracts, payment of excessive recruitment fees, debt bondage, non-payment of salary, withholding of passports, excessive working hours, lack of rest and physical and/or sexual abuse.

Moreover, trafficking of young foreign women and children particularly from neighboring countries for the purpose of sexual exploitation is also prevalent in the country.  These young women and children mostly end-up into the commercial sex trade following deceptive recruitment practices for legal work in Malaysia. There is also information about women and girls from South Asia entering into brokered marriages with older men in Malaysia and subsequently being forced into domestic servitude and forced prostitution.

Child trafficking for the purposes of labor exploitation exists in plantations. Children, particularly those from vulnerable groups such as children of irregular migrant workers and stateless persons are also exploited for begging, prostitution and drug-running. Anecdotal information also exists about possible child trafficking for sale to childless families in Malaysia as a destination country.

Another category of  trafficked persons are ‘refugees’ in Malaysia who is not a State party to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol. There is anecdotal information that lack of formal status or the ability to obtain work permits under Malaysian law makes this category of persons vulnerable to trafficking for purposes of labour, sexual exploitation and extortion.

As well as a destination country, Malaysia is to a lesser extent a transit for trafficked women and girls from the Asia Pacific region and the South West Asia region. Malaysia is also a source country for trafficking, including trafficking of women and girls into the sex and entertainment industry, notably to countries in the Asia Pacifc region. Cases of internal trafficking of women and girls for the purposes of sexual exploitation in metropolitan cities and tourism destinations of the country are also prevalent.

Positive developments

I would like to underline Malaysia’s resolve to fight against trafficking in persons, as reflected by the country’s ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo protocol) and other international human rights instruments including: the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, the ILO Forced Labour Convention 1930 (C.29) and the ILO Worst Forms of Child Labour Convention 1999 (C.182). At the regional level, Malaysia plays an active role in various anti-trafficking initiatives such as the Bali Process and the ASEAN, which it chairs in 2015.

Furthermore, at the national level, I positively acknowledge the legal framework in Malaysia which primarily is based on the Anti-Trafficking in Persons Act (2007) amended and renamed the Anti-Trafficking in Persons and Anti–Smuggling of Migrants Act (2010) which aims to eradicate trafficking in persons in Malaysia. I hope that the amendment to that act expected in 2015 will widen the scope of care and protection of trafficked persons. I further note other national laws in the area of employment, immigration, child protection, prevention of crime which complement the trafficking act. The National Action Plan on Trafficking in Persons (2010 - 2015) further contributes to strengthening the anti-trafficking framework.

In terms of the institutional framework, I welcome the establishment of the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO), a multi-sectoral committee with members drawn from relevant line ministries and government departments, chaired by the Secretary-General of the Ministry of Home Affairs. The Council plays a coordination role with regards to the implementation of the Act and formulates policies and programmes to prevent and combat trafficking in persons and smuggling of migrants. I also note the existence of Shelter homes for the care and protection of trafficked men, women, girls and boys run by the Ministry of Women, Family and Community Development that I have visited during my stay in Malaysia. Finally, I find encouraging the engagement of SUHAKAM in addressing issues of trafficking in persons by acting as a bridge between government and CSOs, inquiring into complaints of alleged human rights violations including complaints relating to trafficking in persons, policy advice and awareness raising. I also note that licensing of new employment agencies is on hold and that renewal of licenses of existing agencies will not be extended beyond 2021.

I also learnt of the steps taken by the Government in terms of fostering its bilateral, regional and international cooperation on combatting trafficking in persons.

Critical areas of concerns

Notwithstanding these positive steps, I have noted a number of challenges that must be addressed by the Government of Malaysia if it is to succeed to effectively combat trafficking in persons and protect the human rights of trafficked victims.

The potential scale of the problem of trafficking in persons appears to be somewhat underestimated and needs to be further investigated by the Government, judiciary and law enforcement agencies. This requires an adequate data collection mechanism for determining the prevalence rate, forms, trends and manifestation of human trafficking in Malaysia.

Victims of trafficking are often not identified or are misidentified as smuggled and/or irregular migrants and deported due the absence of appropriate tools and protocols for victim identification. When victims of trafficking are identified through police raids, the focus is mostly on sexual exploitation, while there seems to be less attention given to trafficking for labour exploitation. Moreover, trafficked children, though victims, are often detained and subsequently deported, and not provided with adequate specialist support for social reintegration and recovery.

Indeed to date, the rate of prosecution of cases for all types of trafficking remains low, while convictions related to trafficking for labour exploitation are even rarer. Moreover, there is concern about the lengthy judicial process and the lack of speedy judicial trials for trafficking cases. This contributes to impunity of traffickers engaging in illicit and clandestine operations and perpetuates the abuses faced by victims.

In terms of protection for victims of trafficking, I have positively noted that assistance is provided to the few identified victims in government run shelters. This includes the provision of adequate living conditions for male, female and children victims along with psychological, medical, language and other support services provided in collaboration with NGOs. The staff in the shelters, despite being committed and dedicated, requires specialized training and capacity building.  Furthermore, assisted victims are kept in closed shelters and do not have freedom of movement outside these. Nor are they provided with allowances or permitted to work while awaiting the outcome of legal proceedings. While a legal provision issued in 2012 allows such victims the right to work, in practice this is rarely implemented because of their lack of regular residence status in the country. Notwithstanding  the existing standard operative procedures, there is a need to develop such procedures where they are lacking and effectively implement the existing ones.  

Moreover, given the influx of migrants arriving in Malaysia with the perspective of work and the government’s immigration policy based on rapid repatriation programs of undocumented migrants, I am concerned of the possibility that trafficked persons may be arrested, detained and deported without opportunity of being properly identified, provided with necessary assistance and without safety having been ascertained in their countries of origin. My fear is heightened also by the fact that there is capacity gap in terms of ability for quick and accurate identification of victims of trafficking by front line officers. The immigration policy which includes the criminalisation of irregular stay and does not envisage a viable alternative other than deportation for trafficked persons, further deters potential victims from reporting their situation for fear of being further penalized and deported to their countries of origin due to their immigration status.

While acknowledging the current efforts of awareness raising on trafficking in persons targeted at MAPO and its members, prevention remains at an infant stage. The mechanism relating to the licensing of recruitment/ employment agencies has not prevented abuses such as debt bondage and exploitation of victims of trafficking. Furthermore, there is a lack of adequate framework to promote social corporate responsibility of businesses in the area of human rights including the eradication of trafficking for labour exploitation. The general population also remains unaware of the issue of trafficking, and government’s action to combat and prevent it. A hotline dedicated to reporting cases of trafficking in persons does not exist. While two other hotlines for treating cases of violation of the rights of women and children, and to report crimes exist under the Ministry of Women, Family and Community (15999) and the Royal Malaysian Police (999), very few cases of trafficking have been identified through these channels.

The capacity of government authorities, law enforcement agencies and judicial authorities to identify cases of trafficking in persons prevents that all forms and manifestations of trafficking in persons are duly prosecuted and punishment is limited. The same applies to labour inspectors who in addition appear not to have the necessary capacity for an effective oversight related to the phenomenon of trafficking and identification of trafficking victims, given their small number compared to the numerous workplaces/ businesses to inspect including plantation work sites.

While recognizing the federal set up of Malaysia, coordination within and across concerned authorities and the coordination of state level authorities with their counterparts at the federal level is essential to address trafficking in persons and at present remains incoherent in spite of MAPOs initiatives. Moreover, the Anti- Trafficking Act does not explicitly provide for an appropriate framework for cooperation with NGOs including in relation to funding.

In view of the above observations, I make the following preliminary recommendations to Malaysia.

NATIONAL FRAMEWORK

• Fast track the amendment of the Anti-Trafficking in Persons and Anti–Smuggling of Migrants Act and other relevant regulations for a comprehensive anti-trafficking legal framework in compliance with the requirements of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children. Among others, the amendment should focus on allowing victims in shelters the ability to move outside the facilities and the right to stay and work while awaiting the outcome of their legal proceedings and beyond; compensation during criminal procedures that are not dependent on conviction; victims’ non-criminalization for actions undertaken in relation with their status as victims; and the possibility of NGOs to further contribute to the anti-trafficking work by allowing them to become members of MAPO.
• Envisage enacting/ amending legislation on the rights of migrant domestic workers, who are mostly women and may be at risk of trafficking for the purposes of labor exploitation and debt bondage.
• Undertake baseline research in collaboration with independent research institutions and civil society organisations to collect credible data on the phenomenon of human trafficking, its causes and consequences, including on trafficking for labour exploitation as well as other forms, trends and manifestations of trafficking, such as that for forced and servile marriages
• Evaluate the outcomes and lessons learnt of the 2010-2015 National Action Plan to combat trafficking and migrant smuggling and develop, after concerting with all stakeholders, a national plan of action (2015-2020) that clearly identifies objectives and activities which adequately financed, delineates responsibilities, and sets out clear indicators to measure progress and impact on anti-trafficking initiatives;

IDENTIFICATION

• Specifically establish protocols/guidelines for the identification of victims, defining red flags and indicators to look for while screening vulnerable persons including exploited foreign workers, stateless persons and refugees who are considered as irregular migrants. It is pertinent to observe that accurate and quick identification of victims of trafficking is crucial to activating other action, especially for investigation and prosecution of traffickers, including referrals that would allow for adequate assistance and protection for victims.
• Include the possibility for victims of trafficking to be identified, protected and assisted from the time of their arrest throughout the process of investigation that may lead to their deportation. Ensure that such a procedure is available especially in immigration detention centers where potential victims of trafficking may be repatriated and re-victimized.
• Establish appropriate tools and indicators to enable labor inspectors to identify victims of trafficking during labor checks accompanied by immediate protection measures for victims found to be in enforced labor.

SUPPORT SERVICES FOR VICTIMS OF TRAFFICKING

• Protect and assist all victims of trafficking, including those victims of labour trafficking, domestic work and children, with full respect for their human rights, including freedom of movement outside of the shelters and apply a human rights based approach in the investigation of cases of trafficking that requires the rights of all victims to be placed at the core of any response.
• Provide victims of trafficking unconditional and comprehensive assistance such as shelter, social, psychological, medical, legal support, as well as translation assistance and interpretative services in accordance with article 6 (6) of the Palermo Protocol.
• Consider NGOs with relevant capacity to provide supports and assistance to victims of trafficking inside shelters as a preferred course of action.
• Put in place a free 24 hours confidential hotline/helpline for reporting suspected cases of trafficking and exploitation of migrant workers. This should also be accessible to foreign victims of trafficking and serviced by multi-lingual staff who have received specialized training on trafficking in persons.
• Establish a victim fund that will provide a comprehensive compensation scheme for victims of trafficking.
• Maintain close cooperation with relevant United Nations Agencies and programmes in the country as well as diplomatic missions the safe return of trafficked victims in their country having due regard to the need, if any, of international protection of the victims;

PREVENTION

• Take urgent action using multi-media approach to create public awareness about all forms of trafficking in persons, including for domestic servitude, forced labour and sexual exploitation, in order to promote understanding of what constitutes trafficking among the general population and foreigners based in Malaysia.
• Constantly monitor and evaluate prevention work programmes and policies to ensure that it is effective, non-stigmatizing and not contributing to stereotyping of victims and their communities. 
• Empower NGOs including through increased interaction and the provision of funds, to conduct sensitization on trafficking-related risks and handle complaints related to trafficking at the grassroots level.
• Establish and implement a stringent regulation regarding employment agencies, regularly check the activities of those already licensed, revoke their license and prosecute them in cases of illegal action involving trafficking in persons.
• Encourage businesses inter alia through a National Action Plan to encourage and to free their supply chains from trafficking including through the establishment of self-regulatory mechanisms and adequate tools to ensure their implementation.

PROSECUTION

• Address delays in prosecution by stepping up efforts to speedily investigate, prosecute, and convict traffickers including government employees complicit in human trafficking as well as employment agencies involved in fraudulent labor recruitment, forced labor and other forms of labour trafficking.  Expedite cases involving trafficking in persons, whilst guaranteeing fair trail rights consistent with a human rights and child friendly based approach to criminal justice response.

TRAFFICKING IN GIRLS AND BOYS

• Ensure that appropriate procedures are in place to evaluate the best interest of the child during the stage of identification, protection and assistance and before making any decision on the eventual repatriation of the child.

MIGRATION

• Recognize the need for foreign work force and develop, strengthen and increase options for safe and legal migration, acknowledging that the current approach to migration management, especially in relation to the recruitment of foreign labour via unscrupulous employment agencies may favor the activities of smugglers and traffickers.
• Consider providing victims of trafficking who do not wish to return in their countries of origin due to fear of retribution, hardship or re-trafficking, alternatives to remain and work legally in Malaysia, including through granting  special work permits and employment visa.

TRAINING AND CAPACITY BUILDING

• Develop and implement clear systems and procedures for identifying victims of trafficking defining red flags and indicators to look for while screening victims among vulnerable persons including exploited foreign workers, stateless persons and refugees who are considered as irregular migrants. Ensure continued training for law enforcement officials and government authorities to enhance their capacity to identify trafficked persons quickly and accurately and to make referrals to appropriate services; 
• Raise awareness on the distinction between cases of trafficking and irregular migration while underlining the impact of mix migration influx on trafficking.
• Provide training for criminal justice officials including prosecutors and judges through continuing training to raise awareness about emerging trends of trafficking in persons, to ensure a human rights based and victim centered approach to prosecution and punishment of criminals, and protect victims. Additionally, train all stakeholders involved in providing assistance and care to victims of trafficking.

INTERNATIONAL & REGIONAL FRAMEWORK

• Ratify and domesticate relevant international human rights instruments including the International Convention on the Protection of the Rights of Migrant Workers and Members of their Families; Convention on the Status of Refugees (1951); Convention relating to the Status of Refugees; ILO Convention on Decent Work for Domestic Workers Convention (2011) and the ILO Protocol on Forced Labour (2014).  
• Strengthen partnership with source countries and extend cooperation for exchange of information and mutual legal assistance;
• Provide some level of support in source countries to ensure prevention and awareness raising and establishment of policies, mechanisms and comparable implementation levels, as well as financial aid to create victim support funds in the less developed countries.

A full report of this visit will be submitted to the United Nations Human Rights Council in June 2015.

For the use of the media; not an official record.