Trafficking in Persons Report 2008 - Malaysia

MALAYSIA (Tier 2 Watch List)

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 men, women, and children for 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 (P.R.C.), the Philippines, Burma, Cambodia, Bangladesh, Pakistan, and Vietnam to work, some of whom are subjected to conditions of involuntary servitude by Malaysian employers in the domestic, agricultural, construction, plantation, and industrial sectors. Some migrant workers are victimized by their employers, employment agents, or traffickers that supply migrant laborers and victims of sex trafficking. Victims suffer conditions including physical and sexual abuse, debt bondage, non-payment of wages, threats, confinement, and withholding of travel documents to restrict their freedom of movement. In addition, some female domestics from Indonesia, Thailand, the Philippines, Cambodia, Vietnam, Burma, Mongolia, and the P.R.C. are forced into commercial sexual exploitation after being deceived with promises of jobs or after running away from abusive employers. Individual employment agents sold women and girls into brothels, karaoke bars, or passed them to sex traffickers. Some Burmese registered with the United Nations as refugees, a status not recognized by the Malaysian government, are vulnerable to being trafficked for forced labor. To a lesser extent, some Malaysian women, primarily of Chinese ethnicity, are trafficked abroad for commercial sexual exploitation. Also, a few Malaysians, specifically women and girls from indigenous groups and rural areas, are trafficked within the country for labor and commercial sexual exploitation.

The Government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Malaysia is placed on Tier 2 Watch List for its failure to provide evidence of increasing efforts from the previous year to tackle its large and multidimensional trafficking problem, including its forced labor problem. The Government of Malaysia enacted comprehensive anti-trafficking legislation in July 2007. It completed development of implementing guidelines, training of key law enforcement and social service officers, and issued legislative supplements to bring the law fully into force in late February 2008. The government, however, did not yet take action against exploitative employers or labor traffickers during the reporting period. The government has not yet widely implemented mechanisms to screen victims of trafficking from vulnerable groups. The government established an interagency National Council for Anti-Trafficking in Persons that includes representatives from civil society that has drafted a national action plan. Also in March 2008, the Ministry for Women, Family, and Community Development opened two trafficking victims' shelters and began assisting foreign victims of sex trafficking.

Recommendations for Malaysia: Fully implement and enforce the comprehensive anti-trafficking in persons law. Adopt proactive procedures to identify victims of trafficking among vulnerable groups such as migrant workers and foreign women and children arrested for prostitution. Apply appropriate criminal penalties to those involved in fraudulent labor recruitment for the purposes of forced labor or debt bondage. Ensure that victims of trafficking are not threatened or otherwise punished for crimes committed as a result of being trafficked. Significantly improve its record of prosecutions, convictions, and sentences for sex and labor trafficking. Re-examine existing MOUs with source countries to incorporate victim protection provisions and prohibit passport or travel document confiscation in line with Malaysia's Passport Act, anti-trafficking law, and international standards. Disseminate information on the 2007 law throughout the country and train law enforcement, immigration, and prosecutors on use of the new legislation. Implement and support a visible anti-trafficking awareness campaign directed at employers and clients of the sex trade. Increase efforts to prosecute and convict public officials who profit from, are involved in trafficking, or who exploit potential victims.

Prosecution

The Government of Malaysia demonstrated improvements in efforts to investigate and prosecute trafficking cases during the reporting period. 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. The government did not provide comprehensive prosecution and conviction statistics, and, prior to bringing the new anti-trafficking law into force, continued to rely on its Emergency Ordinance and Restricted Residence Acts for law enforcement actions against suspected sex traffickers. These laws have been criticized for lack of transparency and due process. In November 2007, a Malaysian court convicted a 32-year-old HIV positive Malaysian citizen for procuring a 14-year-old girl for sex; he was sentenced to 43 years in jail, 20 strokes of the cane, and a fine of $15,625.00. In January 2008, police arrested a couple in Sabah for trafficking seven Filipina women for commercial sexual exploitation; the couple recruited the women with promises of jobs as waitresses. In March 2008, the police conducted a raid in Johor Bahru that resulted in the rescue of 17 Thai women trafficked into commercial sexual exploitation. A second raid by police rescued four Chinese and two Vietnamese women, also trafficked into commercial sexual exploitation. Also in March 2008, Malaysian immigration authorities carried out a raid in Seremban that resulted in the detention of three suspected traffickers and the rescue of seven Thai and three Lao women trafficked into commercial sexual exploitation. During the reporting period, the Royal Malaysian Police (RMP) detained 55 suspected traffickers for commercial sexual exploitation under the Emergency Ordinance and Restricted Residence Act. The government did not report prosecutions against suspected traffickers arrested and jailed under these preventive laws.

Despite indications of a sizable 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 investigations or prosecutions of Malaysian employers who subjected foreign workers to conditions of forced labor or Malaysian 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 regarding groups of foreign workers subjected to conditions of forced labor in Malaysia. In March 2008, Bangladeshi workers at a chain of U.K.-owned supermarkets in Malaysia reportedly faced deceptive recruitment, debt bondage, and exploitative wage deductions consistent with forced labor. In November 2007, reports surfaced regarding 1,300 Vietnamese laborers subjected to debt bondage, contract switching, confiscation of travel documents, confinement, and threats of deportation at a Hong Kong-owned apparel factory in Penang. Despite ample reporting on these incidents, Malaysian authorities did not respond with criminal investigations or prosecutions regarding the alleged offenses. In the Penang case, the complainants pursued the matter as a labor dispute, rather than ask the police to make a criminal investigation. A 2006 Memorandum of Understanding (MOU) between the Governments of Malaysia and Indonesia covering the employment of Indonesian women as domestic servants in Malaysia authorizes Malaysian employers to confiscate and hold the passport of the domestic employee throughout the term of employment. This practice is recognized by many in the international anti-trafficking community as facilitating the involuntary servitude of domestic workers.

Malaysia, particularly in accordance with the aforementioned MOU with Indonesia, did not prosecute employers who confiscated migrant workers' passports or who confined workers to the workplace. Passport confiscation, otherwise a violation of the Passports Act, is a common method of controlling contract laborers. It also remained common practice for the wages of employees to be held in "escrow" until completion of a contract.

There were no substantiated reports of direct government involvement in the trafficking of persons at either the local or institutional level; however, there were reports of low-level complicity of immigration authorities at the land borders with Thailand and Indonesia. No government officials were implicated, arrested, or tried for involvement in trafficking.

Protection

Malaysia's overall efforts to protect victims of trafficking remained inadequate during the reporting period. Basic protections for victims were widely unavailable to most foreign females trafficked for sexual exploitation to Malaysia during the year. The Malaysian government stated it encouraged victims to assist in the investigation and prosecution of traffickers; in practice few victims were willing to testify. A trafficking victim may file a civil suit against a trafficker under Malaysian law, but in practice this seldom happens. Potential victims continued to be charged for prostitution and immigration violations during the reporting period. The government provided no legal alternatives to the removal of foreign victims to countries where they face hardship or retribution. 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. Victims detained by immigration authorities, including children, were routinely processed as illegal migrants and held in prisons or illegal migrant detention facilities prior to deportation.

In March 2008, the Ministry for Women, Family and Community Development opened two shelters and provided assistance to 33 victims of sex trafficking rescued during its first month in operation. The victims were processed through a magistrate's court within 24 hours or less to legally identify them as trafficking victims before their placement in the shelter. Prior to the opening of the government shelters, the RMP instituted an informal victim referral process that referred over 200 suspected trafficking victims to NGO and embassy operated shelters. Immigration authorities did not screen foreign women arrested for prostitution for identification as trafficking victims, but instead processed them for quick deportation. In some cases, especially those involving deportation over land borders such as along the Malaysian-Indonesian border on Borneo, trafficking victims were vulnerable to being re-trafficked by traffickers operating at formal border crossing points.

Prevention

Senior Malaysian officials, including the Prime Minister, Foreign Affairs Minister, and Minister for Women, Families, and Social Development, increasingly spoke out against trafficking in persons, but the Government of Malaysia did not sponsor anti-trafficking information campaigns during the reporting period. In January 2008, the Director General for Enforcement in the Department of Immigration issued a public warning that employers could be charged under the new anti-trafficking law for cases involving abuse and exploitation of foreign workers. There were no visible measures taken by the government to reduce demand for commercial sex acts or raise awareness about child sex tourism. Protection officers from the Women's Ministry received specialized training on assisting victims. The RMP initiated training of trafficking victim identification during the year. All troops assigned to peacekeeping missions received training on trafficking in persons at Malaysia's Peacekeeping Training Center at Port Dickson. There were no allegations that Malaysian peacekeepers were involved in trafficking or in exploiting trafficking victims. The government has not ratified the 2000 UN TIP Protocol.