2013 Trafficking in Persons Report - Malaysia

MALAYSIA (Tier 2 Watch List)

Malaysia is a destination and, to a lesser extent, a source and transit country for men, women, and children subjected to conditions of forced labor and women and children subjected to sex trafficking. The overwhelming majority of trafficking victims are among the estimated two million documented and two million or more undocumented foreign workers in Malaysia. They typically migrate willingly to Malaysia from countries including Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Laos, Bangladesh, Pakistan, and Vietnam in search of greater economic opportunities. Some of them subsequently encounter forced labor or debt bondage at the hands of their employers, employment agents, or informal labor recruiters. A significant number of young foreign women are recruited ostensibly for legal work in Malaysian restaurants and hotels, but subsequently are coerced into the commercial sex trade. Many Malaysian recruitment companies, known as labor outsourcing companies, recruit workers from India, Vietnam, and other countries, some of whom are subjected to conditions of forced labor by employers. Contractor-based labor arrangements of this type – in which the worker may be technically employed by the recruiting company – create vulnerabilities for workers whose day-to-day employers were generally without legal responsibility for exploitative practices. In some cases, foreign workers' vulnerability to exploitation is heightened when employers neglected to obtain proper documentation for workers or employed workers in sectors other than that for which they were granted an employment visa. A complex system of recruitment and contracting fees, often deducted from workers' wages, makes workers vulnerable to debt bondage. A new Malaysian government policy to place the burden of paying immigration and employment authorization fees on foreign workers increased this risk.

There were cases of Vietnamese women and girls who entered into brokered marriages in Malaysia and were subsequently forced into prostitution. While many of Malaysia's trafficking offenders are individual businesspeople, large organized crime syndicates are also behind trafficking. During the year, there were NGO reports of Ugandan women, as well as women from Nigeria, Ghana, Zimbabwe, and Macau, fraudulently recruited to Malaysia for ostensibly legitimate work but forced into prostitution upon arrival. Nigerian, and possibly Ugandan, syndicates transport African victims between China and Malaysia, and use threats of physical harm, to victims and their families to coerce them into prostitution. Some victims of forced labor on Thai fishing boats, including Cambodian and Burmese men, reportedly escaped in Malaysian territory.

Many migrant workers on agricultural plantations, at construction sites, in textile factories, and in homes as domestic workers throughout Malaysia are subject to practices indicative of forced labor such as restrictions on movement, deceit and fraud in wages, passport confiscation, and imposition of significant debts at the hands of agents or employers. Passport confiscation remains widespread, particularly among domestic workers. Some employees reported that their employers exercised control over them by threatening to take a worker's passport to immigration authorities and alleging that the workers had breached the terms of their labor contracts, which could result in the revocation of the workers' visas and subsequent deportation. Some Malaysian employers reportedly withheld three to nine months' wages from foreign domestic workers in order to recoup recruitment agency fees and other debt bonds. In some cases, employers illegally withheld employee wages in escrow until completion of the contract, resulting in workers continuing to work for fear of not receiving financial compensation if they ceased to do so.

Forced labor, including debt bondage, occurred among domestic workers, and was also reported to occur on palm oil plantations. There are an estimated 184,000 foreign workers in domestic service in Malaysia registered with the government. NGOs estimate that an additional 200,000 migrant domestic workers are not formally registered; some domestic workers, both documented and undocumented, may be trafficking victims. The Government of Cambodia continued to ban women's emigration to Malaysia for domestic work; however, some women who migrated using tourist visas and some who had migrated prior to the imposition of the ban continued to be subjected to domestic servitude. Indonesian victims may transit Malaysia en route to Middle Eastern countries where they become victims of domestic servitude.

Refugees in Malaysia, including Rohingya men, women, and children from Burma and Bangladesh, lacked formal status or the ability to obtain work permits under Malaysian law, making them vulnerable to trafficking. Many had incurred large smuggling debts; exploitation of these debts after they reached Malaysia at times amounted to debt bondage. There were reports that children from refugee communities were subjected to forced begging. Stateless persons in Sabah – some of whom are unaccompanied children of Filipino and Indonesian migrant workers who have been deported – as well as refugees in this region were vulnerable to forced child labor and debt bondage. A small number of Malaysian citizens reportedly were trafficked internally and abroad to Singapore, China, Japan, Australia, and the United Kingdom for commercial sexual exploitation. One NGO observed an increase in the number of ethnic Malay girls who were subjected to sex trafficking during the year. There continued to be reports that some complicit officials facilitated trafficking, including by allowing the movement of vulnerable undocumented migrants across borders.

The Government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking. The government did not show evidence of overall increasing efforts to address human trafficking compared to the previous year; therefore, Malaysia is placed on Tier 2 Watch List for a fourth consecutive year. Malaysia was granted a waiver from an otherwise required downgrade to Tier 3 because its government has a written plan that, if implemented, would constitute making significant efforts to meet the minimum standards for the elimination of trafficking and is devoting sufficient resources to implement that plan. During the year, the government made no tangible improvements to its inadequate system for identifying and protecting trafficking victims, such as amending its laws to allow victims to reside in NGO shelters. Rather, it continued to consign victims to substandard facilities and to restrict the access of NGOs which could provide additional services to victims. The government did not employ a victim-centered approach; this limited the success of its anti-trafficking law enforcement efforts and inflicted further harm on victims. Malaysia certified 444 victims in 2012. Malaysia increased the number of investigations, prosecutions, and convictions in labor trafficking cases, and prosecutors convicted 21 individuals for trafficking, more than in the previous year. Inadequate efforts to proactively identify victims among vulnerable groups and front-line officials' inability to recognize indicators of human trafficking led to many victims remaining unidentified and vulnerable to detention and deportation.

Recommendations for Malaysia: Amend the anti-trafficking law to allow trafficking victims to travel, work, and reside outside government facilities, including while under protection orders; increase efforts to prosecute and punish trafficking offenders, particularly perpetrators of labor trafficking; apply stringent criminal penalties to those involved in fraudulent labor recruitment or forced labor; develop and implement procedures to identify labor trafficking victims, using internationally recognized indicators of forced labor among vulnerable groups such as migrant workers and refer them to available protection services; increase training for officials on the effective handling of sex and labor trafficking cases, with a particular emphasis on victim protection and the identification of labor trafficking victims; improve victim identification efforts to ensure that victims of trafficking are not threatened or punished for crimes committed as a result of being trafficked; encourage increased efforts by prosecutors to prepare victims for participation as witnesses in trafficking trials; consider funding specialized NGOs to provide victims in government facilities regular access to legal services and effective counseling in their native languages; ensure all victims are eligible for protective services within Malaysia, regardless of the likelihood their cases will go to trial; provide all victims legal alternatives to removal to countries in which they would face retribution or hardship; make greater efforts to educate migrant workers of their rights, legal recourses available, and remedies against traffickers or employers who fail to meet their legal obligations; enforce the law that prohibits employers from confiscating passports; increase transnational cooperation with other governments in the region on enforcing anti-trafficking laws; and increase efforts to investigate – and prosecute and punish, as appropriate – reports of public officials who may profit from trafficking or who may exploit victims.

Prosecution

The Government of Malaysia made modest overall progress in addressing human trafficking through law enforcement means during the reporting period, increasing efforts to investigate and prosecute trafficking offenders, notably in the area of labor trafficking, though convictions of sex trafficking offenders decreased. Malaysian law prohibits all forms of human trafficking through its 2008 Anti-Trafficking in Persons Act (amended), which prescribes penalties that are commensurate with those prescribed for other serious offenses, such as rape. In November 2010, the government enacted amendments to the law that broadened the definition of trafficking to include all actions involved in acquiring or maintaining the labor or services of a person through coercion.

During 2012, the government convicted 11 sex trafficking offenders and 10 labor trafficking offenders, an increase from the 17 sex trafficking convictions and zero labor trafficking convictions obtained in 2011. Police, immigration, and Labor Department officials investigated 190 suspected trafficking cases during the year, 66 of which were for labor trafficking, and initiated 63 prosecutions, 19 involving labor trafficking. This was a significant increase as compared to the prior year, in which a total of only 16 new prosecutions were initiated. Labor trafficking convictions secured during the year included a case of forced labor of seven Indonesian women and girls in a house-cleaning business and several cases in which domestic workers were subjected to forced labor along with, at times, physical abuse and other exploitative practices. The case initiated by the Labor Department in the previous reporting period against three proprietors of a media company suspected of labor trafficking was dismissed by the presiding judge. Most convicted trafficking offenders received significant prison sentences. Four offenders received prison sentences of 10 or more years, five received sentences ranging from five to nine years, and eight received sentences ranging from two to four years. The remaining four offenders received prison sentences of less than two years.

Poor government treatment of identified trafficking victims and the lack of victim protection or incentives for victim assistance in investigations and prosecutions remained a significant impediment to successful prosecutions. Prosecutors had little interaction with law enforcement officers or victims prior to trials; their lack of familiarity with victims' testimonies – often the primary source of evidence in trafficking cases – hindered their ability to obtain successful convictions. As in previous years, NGOs reported referring cases of alleged labor and sex trafficking to the government but in some instances authorities did not investigate these allegations. NGOs reported that the police and Labor Department officials often failed to investigate complaints of confiscation of passports and travel documents or withholding of wages – especially involving domestic workers – as possible trafficking offenses, and that front-line officers failed to recognize indicators of trafficking and in some cases treated these cases as immigration violations. Although the Labor Department designated 13 specialized enforcement officers for labor trafficking throughout the country, labor inspectors were not experienced in anti-trafficking procedures and officials often classified potential trafficking cases as routine labor disputes. Reports alleged that collusion between individual police officers and trafficking offenders led to offenders escaping arrest and punishment. However, there were no confirmed cases of Malaysian officials participating in or facilitating trafficking or trafficking-related crimes, and the Malaysian government took no known steps to prosecute or punish such individuals.

Protection

The government made no discernible progress in protecting victims of trafficking during the reporting period; modest improvements made in the previous year were not equaled this year and overall victim protection efforts continued to negatively affect victims. Victims identified by Malaysian authorities are adjudicated under an official protection order that triggers their forcible detention in government facilities, where they must remain for the period stipulated by the court. Most victims reportedly stayed in these facilities for three to six months, and some were detained for more than a year. Victims continued to be locked inside facilities, and were only permitted to leave for hospital visits or court appearances under the custody of the police; male victims have limited freedom of movement inside facilities. Victims were provided limited, if any, access to legal or psychological assistance by the government or NGOs.

The Ministry of Women, Family, and Community Development continued to operate three facilities for women and child victims of trafficking. These facilities detained suspected and confirmed foreign trafficking victims for an average of three to six months (but in some cases much longer) until they were deported to their home countries, per Malaysian law. The government's anti-trafficking expenditures for the current reporting period are unknown, but it reported allocating the equivalent of approximately $300,000 to the Women's Ministry for anti-trafficking work in its 2013 budget. The Ministry of Home Affairs ran a similar facility for male victims of trafficking, which also detained suspected and confirmed trafficking victims. Despite the availability of NGO resources to serve trafficking victims, including through providing shelters that may provide a supportive environment to victims, the government only occasionally referred victims to NGO shelters for temporary assistance; as a policy, it confined certified victims in its own facilities where it lacked the physical and human resource capacity to accommodate them. NGO access to victims placed in government facilities was granted inconsistently, and some organizations able to serve victims' needs were not permitted to do so.

The majority of funding for government shelter facilities has gone toward extensive levels of security, which aim to protect victims from harm but may also deny them basic freedoms; in fact, shelters that prohibit victims from leaving are regarded by experts as posing a serious risk for re-traumatizing victims. Furthermore, the facilities did not employ medical officers or trained psychologists. Employees, assigned on a temporary basis, did not receive adequate, if any, training for working with trafficking victims or managing the facilities; a lack of interpretation services meant that some victims were unable to communicate with staff.

The government reported that individual law enforcement agencies followed standardized procedures for identifying, interviewing, and referring trafficking victims, but there was no evidence of the existence of formal procedures for the proactive identification of victims among vulnerable groups with whom authorities came in contact. The Labor Department continued to rely on workers to initiate a complaint of non-payment of wages before investigating a suspected trafficking case; it did not develop or implement procedures to identify internationally recognized indicators of forced labor, such as the confiscation of travel documents or the imposition of significant debts by employers or labor brokers. In 2012, 1,096 suspected victims, 444 of whom were certified as victims of trafficking, were confined in government facilities. The total number of victims certified is an increase from the 222 victims identified in 2011. Suspected victims' certification under a protection order was largely dependent on their ability to provide testimony in a case that could be prosecuted. Some foreign embassies sheltered victims directly, rather than transferring them to Malaysian facilities, to expedite their repatriation and protect them from detention during lengthy criminal proceedings. One NGO reported sheltering 263 domestic workers who experienced conditions indicative of trafficking – including passport confiscation, unpaid wages, and excessive work hours but they did not benefit from any government assistance. The government reportedly identified an unknown number of Malaysian victims who were exploited within the country during the year.

While the government reports it encouraged victims to assist in the prosecution of their traffickers, some victims sought immediate repatriation by their countries' embassies in Malaysia or by NGOs, rather than staying in Malaysia to testify, due to systemic disincentives such as long detentions in facilities during the sometimes lengthy court proceedings. Certified victims were not permitted to leave the country while they waited for trials to commence. The government did not provide any incentives such as work permits to victims for the duration of their traffickers' trials. Victims could theoretically file civil suits against traffickers, but as foreign victims were provided limited services, it remained prohibitively difficult for them to access this option. Victims typically were uninformed about the legal processes to which they were subjected, and the government did not make adequate efforts to inform the victims of why or for how long they were being detained. This situation increased hardship for victims, who often exhibited anxiety at not knowing when they would be allowed to leave. As noted during previous reporting periods, the government's policy of forcing trafficking victims into facilities continued to provide a disincentive for victims and their advocates to bring cases to the government's attention or to cooperate with authorities. Five male labor trafficking victims benefitted from the government's ad hoc granting of temporary work permits following the expiration of their protection order. This was a decrease from the 32 victims who were given this right in the previous reporting period; the government did not clarify how victims became eligible to receive the temporary work permits, though it had previously reported that only victims who had entered Malaysia legally, and whose safety was not guaranteed if they returned to their country of origin, would be eligible. NGOs expressed concerns that challenges in interagency coordination may make it difficult to extend temporary work permits to all eligible victims, and to date only male labor trafficking victims have been granted temporary visas.

Law enforcement officers and prosecutors did not receive sufficient training to work with victims, and poor investigation procedures did not take into account the best interests of victims. Victims were asked to recount their trafficking experience on numerous occasions to different officials. Although some NGOs reported good working relationships with individual law enforcement officers, the government's restrictive policies toward victims continued to create a barrier to systematic involvement of NGOs with expertise in providing victim care, and some NGOs continued to be barred from further assisting victims after they were confined to a government facility . Some NGOs reported that they sometimes did not refer victims to the police, as they believed doing so was detrimental to the welfare of the victims. The government provided only limited financial assistance to NGOs providing services to victims. The anti-trafficking law provided immunity to trafficking victims for immigration offenses such as illegal entry, unlawful presence, and possession of false travel documents, but victims whose cases did not result in a prosecution generally weren't granted a protection order and were transferred to immigration detention facilities for deportation. Some unidentified victims, particularly those whose documents had been confiscated by employers, continued to be detained, deported, or charged with immigration offenses.

Prevention

The Malaysian government continued efforts to prevent human trafficking during the reporting period. MAPO and its trafficking in persons Secretariat within the Home Ministry continued to meet monthly to coordinate the government's anti-trafficking response. As in previous years, NGOs reported varying degrees of inclusion in the government's anti-trafficking policymaking; some NGOs were formally affiliated with MAPO and others were not included in policy discussions related to their areas of expertise. The government's denial to a number of NGOs of regular access to its victim facilities hindered effective government-civil society collaboration to combat trafficking. A state-level anti-trafficking council (MAPMAS) in Selangor conducted independent anti-trafficking efforts in that state, though MAPO and MAPMAS did not coordinate their activities. The government continued an anti-trafficking public awareness campaign in print media, on the radio, and on television, about the dangers of both sex and labor trafficking. During the reporting year, there were over 5,500 public service announcements on trafficking in persons on national and state radio. The government did not punish any outsourcing companies for trafficking or trafficking-related activities during the year, but it initiated investigation of a labor recruiter for its alleged involvement in the forced labor of 63 women from Indonesia, Cambodia, and the Philippines in domestic service.

In January 2013, the government announced a new policy to require foreign workers to bear the costs of immigration and employment processing fees, which had previously been the employer's responsibility; this policy increases the likelihood that workers will be trapped in usurious debts to recruiters or loan sharks, placing them at even greater risk of debt bondage. In November 2012, the governments of Bangladesh and Malaysia signed a bilateral memorandum of understanding (MOU) to reinstate a formal labor migration channel which had been suspended since 2009 due to abuses of Bangladeshi workers in Malaysia. Given the entrenched role of unscrupulous recruitment companies in Bangladesh's export labor sector, it is unclear how the MOU will be implemented without the involvement of private recruiters. Existing agreements with Indonesia and the Philippines reportedly provide some protections for domestic workers from these countries. The Malaysian government did not finalize an MOU to govern Cambodian domestic workers employed in Malaysia, and a 2011 ban on Cambodian women's emigration to Malaysia for domestic work remained in effect. Although the confiscation of passports by employers of migrant workers is illegal, the government did not prosecute any employers who confiscated passports or travel documents of migrant workers or confined them to the workplace. In March 2012, a migrant worker who won an administrative complaint filed against his former employer for unfair labor practices was granted a temporary permit to work in Malaysia during the remainder of his proceedings; this is not typically possible for migrant workers, whose authorization is linked to a particular employer. Domestic workers are excluded from a number of protections in Malaysian labor law.

While authorities continued some anti-trafficking training for officials with responsibilities to combat trafficking, including training conducted through cooperation with foreign donors, international organizations, and NGOs, the lack of understanding of human trafficking by many Malaysian front-line government officials, such as police, immigration, and labor officials, continued to hinder the identification and proper investigation of trafficking cases and identification and assistance to trafficking victims. The government did not take measures to reduce the demand for forced labor or commercial sex acts. The government provided anti-trafficking training to Malaysian troops prior to their deployment abroad on international peacekeeping missions.