Anti-Trafficking in Persons Act

The elimination of slavery throughout the world was

campaigned by early abolitionists, but it was not the objective
of the earliest organised British movements. The Committee for
the Abolition of the Slave Trade, which established the Society
for the Abolition of the Slave Trade in Britain in 1787,
campaigned for an end to the Transatlantic slave trade from
Western Africa to the New World, which Britain dominated.
Much later, the Anti-Slavery Society became the everyday
name of 2 different British organizations.

The first was the 1823 Society for the Mitigation and Gradual
Abolition of Slavery Throughout the British Dominions (Slavery
Abolition Act 1833), and the second, the 1839 The British and
Foreign Anti-Slavery Society - which is presently known as Anti-
Slavery International.[1]

In America, the United States federal government severely

punishes human trafficking both within its borders and beyond,
making it, a federal crime under Title 18 of the United States
Code. Section 1584 makes it a crime to force a person to work
against his will, whether the compulsion is effected by use of
force, threat of force, threat of legal coercion or by "a climate
of fear" (an environment wherein individuals believe they may
be harmed by leaving or refusing to work); Section 1581
similarly makes it illegal to force a person to work through
"debt servitude." Human trafficking as it relates to involuntary
servitude and slavery is prohibited by the 13th Amendment.
Federal laws on human trafficking are enforced by the United
States Department of Justice Civil Rights Division, Criminal
Section.[2]

Human trafficking or trafficking in persons is a modern and new

type of global slavery which deprives people of their rights and
freedom. Southeast Asia is a source, transit and destination for
men, women, and children trafficked internally and
internationally for the purposes of sexual exploitation and
forced labor.[4]

The Vatican "Pontifical Council for the Pastoral Care of Migrants

and Itinerant People "People on the Move" (N° 96 Suppl.,
December 2004) reported that: "Poverty, unemployment,
underemployment, landless poor and armed conflict combine
to deny many children and their families in rural areas in the
Philippines a secure future. These areas include the Samar-
Leyte region, Negros, Bicol, Cebu Province, and Mindanao,
where unscrupulous recruitment agencies operate by using a
combination of deception, false promises and cash incentives
to win over the parents or the children directly. Groups are
"subverting" the Internet to traffic women and children, and
ease of travel has enabled pedophiles to move from one
country to another. Mostly foreigners are the big investors in
the Philippine sex industry. Child pornography brought in by
tourists teach local children about the sex acts that can be
done to the tourists. The children are used to sell souvenirs and
trinkets along the beaches to the tourists, who then invite them
to show them child porn videos and give them money to repeat
the acts on them.[5]

Malaysia

The Situation

Malaysia is primarily a destination but also a source country for

human trafficking. The traffickers are reportedly organized
crime syndicates.1

Source
A small number of Malaysian women and children, primarily of
Chinese ethnicity,2 are trafficked for sexual exploitation in
Singapore, Macau, Hong Kong, Taiwan, Japan, Australia,
Canada, and the United States. The Ministry of Foreign Affairs
and NGOs estimate that fewer than 100 Malaysian women were
trafficked abroad during 2006 and that the number had
declined in recent years.3

Destination
Malaysia is destination country for a significant number of men
women, and children who are trafficked from Indonesia,
Thailand, the Philippines, Cambodia, Vietnam, Burma, and the
People's Republic of China (P.R.C.), India, Nepal, Bangladesh,
and Pakistan for sexual and labor exploitation. Many victims
voluntarily migrate to Malaysia to work in factories,
construction and agricultural sectors, or as domestic servants,
but are later coerced into debt bondage or involuntary
servitude.4 The Malaysian NGO, Tenaganita reported that 65
percent of the trafficking victims in Malaysia are for forced
labor.5

The Malaysian Government

The Malaysian Government was placed in Tier 3 in the 2007

U.S. Department of State’s Trafficking in Persons Report for not
fully complying with the Trafficking Victims Protection Act’s
minimum standards for the elimination of trafficking and not
making significant efforts to do so.

There were reports of government officials who are complicit in

trafficking; however, none have been prosecuted.6 In
February 2005, officials in the National Registration
Department were detained for forging permanent resident
identity cards to traffickers.7

The Malaysian House of Representatives recently passed an

Anti-Trafficking in Persons Act in May 2007. Under the new act,
traffickers can face sentences up to 20 years in prison, fines
and a whipping. Victims would be placed in half-way shelter
houses for three months to two years.8 The new act is
expected to be enacted within three months after May. The
Government has been using a variety of laws to prosecute
traffickers, such as the Child Act for trafficking of children, the
Immigration Act, and the restricted Resident Act to prosecute
traffickers. Penalties for traffickers included 15 years in prison,
a caning, and fines.9
Prosecution
In 2006, there were no prosecutions of traffickers in Malaysia.
However, the government prosecuted 35 people for using
minors for prostitution, arrested 22 individuals for procuring
brothels, and 16 individuals for arranging prostitution.10 In a
MOU with Indonesia, the Government requires employers who
confiscate passports from migrant workers and confine them in
their workplace in Malaysia. There have been no prosecutions
of these employers for trafficking.11

Protection
The Malaysian Government offers shelters and no legal
alternatives to repatriation for victims who face hardship or
retribution in their country. The majority of trafficking victims
were rescued because of requests by foreign embassies. The
Indonesian Government houses approximately 1,100 women
and children, the majority of whom are thought to be trafficking
victims.12 The Indonesian embassy in Kuala Lumpur holds more
than 150 victims of employer abuse and trafficking victims.13
Malaysia does not adequately identify its trafficking victims;
most illegal migrants were deported or imprisoned without
identifying any potential trafficking victims.14

Prevention
The Malaysian Government has few programs for preventing
human trafficking. The Ministry of Women, Family, and
Community development held a conference to teach police and
immigration officials to identify trafficking victims. The Royal
Malaysian Police held a one-day workshop to develop a national
strategy.15

International Cooperation

The 2005 MOU between the Governments of Indonesia and

Malaysia allows Malaysian employers to confiscate passports
from its migrant workers. This MOU is widely recognized as
facilitating involuntary servitude.16

Trafficking in Persons Report 2009 - Malaysia

MALAYSIA (Tier 3)

Malaysia is a destination and, to a lesser extent, a source and

transit country for women and children trafficked for the
purpose of commercial sexual exploitation and for men,
women, and children trafficked for the purpose of forced labor.
Malaysia is mainly a destination country for men, women, and
children who migrate willingly from Indonesia, Nepal, Thailand,
the People's Republic of China (PRC), the Philippines, Burma,
Cambodia, Bangladesh, Pakistan, India, and Vietnam for work –
usually legal, contractual labor – and are subsequently
subjected to conditions of involuntary servitude in the
domestic, agricultural, food service, construction, plantation,
industrial, and fisheries sectors. Some foreign women and girls
are also victims of commercial sexual exploitation. Some
migrant workers are victimized by their employers,
employment agents, or traffickers who supply migrant laborers
and victims of sex trafficking. Some victims suffer conditions
including physical and sexual abuse, forced drug use, debt
bondage, non-payment of wages, threats, confinement, and
withholding of travel documents to restrict their freedom of
movement. Some female migrants from Indonesia, Thailand,
the Philippines, Cambodia, Vietnam, Burma, Mongolia, and the
PRC are forced into prostitution after being lured to Malaysia
with promises of legitimate employment. Individual
employment agents, which are sometimes used as fronts for
human trafficking, sold women and girls into brothels, karaoke
bars, or passed them to sex traffickers. There were reports of
Malaysians, specifically women and girls from indigenous
groups and rural areas, trafficked within the country for labor
and commercial sexual exploitation. Burmese migrants,
including some Burmese registered with the United Nations as
refugees, a legal status not recognized by the Malaysian
government, are trafficked for forced labor. To a lesser extent,
some Malaysian women, primarily of Chinese ethnicity and
from indigenous groups and rural areas, are trafficked abroad
to destinations including Singapore, Hong Kong, France, and
the United Kingdom, for commercial sexual exploitation.

There were a number of credible reports of Malaysian

immigration authorities' involvement in the trafficking of
Burmese refugees from immigration detention centers to the
Thai-Malaysian border. Several credible sources reported that
immigration officials sold refugees for approximately $200 per
person to traffickers operating along Thailand's southern
border. In turn, the traffickers demanded ransom – ranging
from $300 for children to $575 for adults – in exchange for their
freedom. Informed sources estimated 20 percent of the victims
were unable to pay the ransom, and were sold for the purpose
of labor and commercial sexual exploitation. The Malaysian and
Indonesian governments did not amend or replace a 2006
Memorandum of Understanding (MOU) between the two
countries covering the employment of Indonesian women as
domestic servants in Malaysia. The MOU authorizes Malaysian
employers to confiscate and hold the passport of the domestic
employee throughout the term of employment. Although the
MOU stated that domestic workers should be paid directly and
be given time off in lieu of overtime, it remained common
practice for employers to deposit wages with recruiting
agencies as repayment for debts. NGOs reported that many
Indonesian household workers were required to work 14 to 18
hours a day, seven days a week.

The Government of Malaysia does not fully comply with the

minimum standards for the elimination of trafficking and is not
making significant efforts to do so, despite some progress in
enforcing the country's new anti-trafficking law. While the
government took initial actions under the anti-trafficking law
against sex trafficking, it has yet to fully address trafficking in
persons issues, particularly labor trafficking in Malaysia.
Credible allegations, including those released in an April 2009
formal report by the U.S. Senate Foreign Relations Committee,
of involvement of Malaysian immigration officials in trafficking
and extorting Burmese refugees overshadowed initial steps by
the Immigration Department to address human trafficking. The
Royal Malaysian Police is investigating the allegations with the
cooperation of the Immigration Department, as publicly
confirmed by the Prime Minister, but no officials were arrested,
prosecuted, or convicted for involvement in trafficking during
the reporting period. The government did not develop
mechanisms to screen effectively victims of trafficking in
vulnerable groups. The government also continued to allow for
the confiscation of passports by employers of migrant workers –
a common practice in Malaysia. This practice is recognized by
many in the international anti-trafficking community as
facilitating trafficking. The practice of withholding the salaries
of foreign domestic workers for three to six months so the
employer can recover the levy paid to hire the worker remained
widely practiced. As a regional economic leader approaching
developed nation status, Malaysia has the resources and
government infrastructure to do more in addressing trafficking
in persons.

Recommendations for Malaysia:

Fully implement and enforce the comprehensive anti-

trafficking in persons law; increase the number of prosecutions,
convictions, and sentences for both sex and labor trafficking;
adopt and disseminate proactive procedures to identify victims
of trafficking among vulnerable groups such as migrant workers
and foreign women and children arrested for prostitution; apply
stringent criminal penalties to those involved in fraudulent
labor recruitment or exploitation o forced labor; ensure that
victims of trafficking are not threatened or otherwise punished
for crimes committed as a result of being trafficked; re-examine
existing MOUs with source countries to incorporate victim
protection and revoke passport or travel document
confiscation; increase efforts to prosecute and convict public
officials who profit from or are involved in trafficking; expand
the training of law enforcement, immigration, prosecutors, and
judges on the use of the 2007 trafficking law; implement and
support a comprehensive and visible anti-trafficking awareness
campaign directed at employers and clients of the sex trade;
and increase efforts to prosecute and convict public officials
who profit from, or are involved in trafficking, or who exploit
victims.

Prosecution

The Government of Malaysia made some progress in

investigating sex trafficking offenses and punishing trafficking
offenders during the reporting period, but has not
demonstrated efforts to investigate, prosecute, or convict
offenders of labor trafficking. Malaysian law prohibits all forms
of human trafficking through its July 2007 comprehensive anti-
trafficking law, which prescribes penalties that are
commensurate with those prescribed for other grave offenses,
such as rape. In December 2008, the government convicted its
first trafficking offender under the 2007 anti-trafficking law; an
Indian national convicted of forcing a female domestic worker
into prostitution was sentenced to eight years in prison. The
government also initiated prosecutions against an additional six
alleged traffickers, one of whom fled while on bail. Although
there were credible reports of government officials' direct
involvement in human trafficking, none were arrested,
prosecuted, or punished for trafficking. The Prime Minister and
Inspector General of Police reported that the government is
actively investigating the allegations. In July 2008, the Director-
General of Immigration and his Deputy Director-General were
arrested for graft and corruption involving the acceptance of
bribes for issuance of visas and visitation passes. Informed
observers speculate this corruption facilitated trafficking in
persons. There were reports of a significant number of migrant
laborers trafficked to Malaysia and widespread media reporting
of the trafficking conditions many of these workers face. The
government did not report any criminal prosecutions of
employers who subjected workers to conditions of forced labor
or labor recruiters who used deceptive practices and debt
bondage to compel migrant workers into involuntary servitude.

During the reporting period, there were several NGO and media
reports of groups of foreign workers subjected to conditions of
forced labor in Malaysia. In August 2008, following an
investigative news report, more than 1,000 foreign workers at a
Malaysian factory producing apparel for a U.S. company were
found subjected to squalid living conditions, confiscation of
their passports, withheld wages, and exploitative wage
deductions – conditions indicative of forced labor. Following its
own investigation, the U.S. company stated that it found major
labor violations committed by the local factory, though a
Malaysian government official reportedly responded by saying
that the local factory's management did not breach any labor
laws. Moreover, the Malaysian government did not respond
with a criminal investigation of the allegations.

In February 2009, a Malaysian newspaper revealed a case of

140 Bangladeshi workers locked in a small apartment. The
workers each reportedly paid recruiters $5,000 to $13,000 to
find them jobs in Malaysia; however, the recruiters passed the
workers to a Malaysian employment agency, which upon their
arrival in Malaysia, confiscated their passports and work
permits and did not pay their wages for three to six months in
most cases, although some individuals were not paid in more
than a year. The Malaysian government is investigating the
case as a labor dispute rather than a human trafficking case. In
2008, a local NGO coordinated with police in Sarawak to rescue
17 male Cambodians forced to work on commercial fishing
boats and repatriated them to Cambodia. The government did
not prosecute any employers who confiscated passports of
migrant workers or confined them to the workplace. Some
employers who hired foreign migrant workers held the wages of
their employees in 'escrow' until completion of a contract.

Protection

While Malaysia showed modest efforts to protect victims of sex

trafficking during the reporting period, its efforts to protect
victims of labor trafficking remained inadequate. Numerous
source country governments of migrant workers in Malaysia
expressed concern about the lack of legal protections in place
for foreign workers, particularly those subjected to involuntary
servitude. There was no widespread effort by the Government
of Malaysia to identify trafficking victims among vulnerable
migrant groups, such as girls and women detained for
involvement in prostitution or the thousands of undocumented
migrant workers rounded up by RELA, a government-sponsored
public security auxiliary force. As a result, some unidentified
victims, including children, detained by immigration authorities
were routinely processed as illegal migrants and held in prisons
or illegal migrant detention facilities prior to deportation. In
some cases, especially those involving deportation over land
borders, this made victims vulnerable to being re-trafficked by
traffickers operating at the borders such as along the
Malaysian-Indonesian border on Borneo. Police reported
rescuing about 2,000 foreign women and minors forced into
prostitution during raids on brothels in 2008. The government
deported or voluntarily repatriated most of the victims to their
home countries, referring some to their respective embassy
shelters and processing a limited number as victims under the
anti-trafficking law. The Ministry for Women, Family, and
Community Development continued to run two trafficking
shelters, which held suspected and confirmed trafficking
victims until they were repatriated to their home countries. In
2008, the Ministry renovated a third shelter in the East
Malaysian state of Sabah. In 2008, the police referred 98
potential trafficking victims to the government shelters in Kuala
Lumpur, 34 of which were certified by magistrates as officially
recognized trafficking victims. Police also referred hundreds of
suspected trafficking victims to local and diplomatic missions
operating victims' shelters; the government cooperated with
the embassies' repatriation of victims, but did not offer other
assistance. Foreign migrant laborers, legal and illegal, lacked
regular access to legal counsel in cases of contract violations
and abuse, although in a small percentage of cases workers
filed complaints under the labor laws. Some suspected
trafficking victims continued to be housed at immigration
detention centers pending repatriation. The government
offered no facilities for male trafficking victims. While victims
may file a civil suit against exploiters under Malaysian law, they
are unable to work while their suit is being considered, thus
discouraging such attempts at restitution. Immigration
authorities did not screen foreign women arrested for
prostitution for identification as trafficking victims, but instead
processed them for quick deportation. The government does
not provide legal alternatives to the removal of victims to
countries where they may face hardship or retribution.

Prevention

Malaysia made limited efforts to prevent trafficking in persons

over the last year. Senior officials, including the Prime Minister,
Inspector General of Police, and the Minister for Women,
Family, and Community Development, spoke out more
routinely against trafficking crimes, and the government-
influenced media carried numerous reports that raised
awareness of trafficking. The Women's Ministry developed
information brochures on trafficking in English and Malay for
NGOs to distribute to the public, and started a women's hotline
for victims of trafficking. The government condoned the
confiscation of passports by employers. Employers passed the
government's "immigration levy" on to the low-skilled workers,
which facilitated debt bondage. There were no visible measures
taken by the government to reduce the demand for forced
labor or for commercial sex acts. Protection officers from the
Women's Ministry received specialized training on assisting
victims. The government provided anti-trafficking training
through its Peacekeeping Training Center at Port Dickson to
troops preparing to deploy to international peacekeeping
missions. The government has not ratified the 2000 UN TIP
Protocol.

Media statement by Dr. Hiew King Cheu in Kota Kinabalu on

Friday, 16th July 2010:

An Act to amend the Anti-Trafficking in Persons Act

2007

The Act may be cited as the Anti-Trafficking in Persons

(Amandment) Act 2010.

In Parliament, the above mentioned Act has been tabled by the

Minister of Internal Affair for debate and endorsement by the
members of Parliament on the 15th July, 2010.

The original Act, The Anti-trafficking in Persons Act 2007 (Act

670) which is referred to as the "Principal Act" in this Act, and
the new title of the amended Act will be "An Act to prevent and
combat trafficking in persons and smuggling of migrants and to
provide for matters connected therewith". Most of the sections
in the Act have been inserted with the wording "Anti-Smuggling
of Migrants".

The Act gave a definition on "Smuggling of Migrants" which is

defined as:-

(a) arranging, facilitating or organizing, directly or indirectly, a

person's unlawful entry or through, or unlawful exit from, any
country of which the person is not a citizen or permanent
resident either knowing or having reason to believe that the
person's entry or exit is unlawful;

(b) recruiting, conveying, transferring, concealing, harbouring

or providing any other assistance or service for the purpose of
carrying out the acts as in (a).

New Section 7:- "Function and power of the Council" has been
inserted with the power to:-

(a) coordinating the implementation of the Act,

(b) formulating policies and program to prevent and combat

trafficking and smuggling of migrants,

(c) formulating protective programs for trafficked persons,

(d) initiating education programs to increase public awareness

of the causes and consequences of the act of trafficking in
persons and smuggling of migrants,
(e) monitoring the immigration and emigration patterns in
Malaysia including the international level,

(f) advising the government on issues of trafficking in persons

and smuggling of migrant,

(g) to make recommendations to the Minister on aspects of

prevention and combating,

(h) Coordinating the formulation and monitoring the

implementation of such policies,

(i) Cooperating and coordinating with governments and

international organizations,

(j) Collecting datas and information, and authorizing research,

(k) Performing any other function for the purpose.

There are various penalties and punishment under the Act on

the offence of smuggling of migrants:-

1. Smuggling of Migrants- jail term 15 years and fine or both;

2. Smuggled Migrants in transit- jail term 7 years and fine or
both;
3. Profiting from the offence of smuggling of migrants- jail
term 7 years not exceeding 15 years, fine RM500,000 but
not exceeding RM 1 million or both, and forfeiture of the
profits from the profits of the offence.

There are many other punishments as stated in the Act.

I viewed the Act amendment as positive and will help the illegal
immigrants flooding into Sabah. This problem of uncontrolled
movement of the illegal immigrants in and out of Sabah is a
long standing problem and is the direct cause of the huge
fluctuation of the population in the state. In the actual fact,
many of this PTI people have obtained Mycard through various
means as reported, and books had been written and published
to alert the government. There are plenty of "agents" out there
to arrange them to come in and out of Sabah freely.

It is a small steps and a belated move to cope the situation on

the illegal immigration in Sabah. The effectiveness of the Act
will still have to be proven and tested. The Council set up under
the power of the Act should with its members comprising a
wide cross section of the various government departments and
agencies, NGO,s, opposition leaders, professional bodies, and
Chambers of Commerce etc.