2016 Trafficking in Persons Report - Malaysia

MALAYSIA: Tier 2 Watch List

Malaysia is a destination and, to a much lesser extent, source and transit country for men, women, and children subjected to forced labor and women and a small number of children subjected to sex trafficking. The majority of trafficking victims are among the estimated two million documented and an even greater number of undocumented migrant laborers in Malaysia. Foreign workers – primarily from Indonesia, Bangladesh, the Philippines, Nepal, India, Burma, and other Southeast Asian countries – typically migrate voluntarily to Malaysia to pursue better economic opportunities. Some of these migrants are subjected to forced labor or debt bondage by their employers, employment agents, or informal labor recruiters when they are unable to pay the fees for recruitment and associated travel. Foreign workers employed by outsourcing or contract labor companies, which may or may not have oversight of personnel issues or day-to-day working conditions, have heightened vulnerabilities to exploitative labor conditions and a reduced ability to resolve disputes. Agents in labor source countries may impose onerous fees on workers before they arrive in Malaysia, in some cases causing debt bondage. Foreign workers in Malaysia and the companies which employ them are subject to a range of government fees for immigration processing, foreign worker levies, and other administrative processes. The law allows many of the fees, which are initially paid by employers, to be deducted from workers' wages, incentivizing employers to prevent workers from ending their employment before fees are recouped. Government regulations placed the burden of paying some immigration and employment authorization fees on foreign workers; this practice makes workers more susceptible to debt bondage. Authorities report organized crime syndicates are responsible for some instances of trafficking. Corruption among immigration and police officers remains a problem and impedes efforts to address trafficking.

Some migrant workers on palm oil and agricultural plantations, at construction sites, in the electronics industry, and in homes as domestic workers are subjected to practices that can indicate forced labor, such as passport retention – both authorized and unauthorized – and contract violations, restricted movement, wage fraud, and imposition of significant debts by recruitment agents or employers. Discoveries of migrant camps and mass graves along the border with Thailand in 2015 generated reports some officials were complicit in facilitating migrant smuggling, which may have included trafficking crimes. In previous years, some forced labor victims – such as Cambodian and Burmese men on Thai fishing boats in Malaysian waters – escaped their traffickers in Malaysian territory. After reports of abuse, the Cambodian government instituted a ban in 2011 on its citizens becoming maids in Malaysia. The ban was lifted in December 2015 after the signing of two memoranda of understanding between the Governments of Cambodia and Malaysia to improve regulation of foreign worker contracts and protect workers' rights; some Cambodian women remain subjected to domestic servitude. In efforts to circumvent anti-trafficking protections established by the Indonesian government, there are reports that some Indonesian workers may transit Malaysia legally en route to Middle Eastern countries, where some may be subjected to domestic servitude. Although significantly fewer than the number of forced laborers, some young foreign women – mainly from Southeast Asia, and to a much lesser extent Africa – are recruited ostensibly for legal work in Malaysian restaurants, hotels, and beauty salons, but are instead forced into prostitution. Some Vietnamese women and girls enter into brokered marriages in Malaysia and are forced into prostitution.

The more than 150,000 registered refugees and asylum-seekers in Malaysia lack formal status or the ability to obtain legal work permits, leaving them vulnerable to trafficking. Many refugees incur large smuggling debts, which traffickers use to subject some refugees to debt bondage. Children from refugee communities in Peninsular Malaysia are reportedly subjected to forced begging. A large population of Filipino Muslims resides illegally in Sabah, some of whom are vulnerable to trafficking. Few Malaysian citizens are subjected to trafficking internally and abroad.

The Government of Malaysia does not fully meet the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Despite these measures, the government did not demonstrate overall increasing anti-trafficking efforts compared to the previous reporting period; therefore, Malaysia is placed on Tier 2 Watch List for the second consecutive year. In July 2015, Parliament passed amendments to the existing anti-trafficking law to reform its victim protection system; these amendments legally came into force in November. The government co-chaired, with an internationally recognized trafficking expert, a consultation session with civil society stakeholders to develop implementing regulations for the amendments, focusing on legal changes allowing trafficking victims to live and work outside of government facilities; it then hosted two subsequent consultation sessions with civil society. In unparalleled form, the government shared the full text of draft implementing regulations with more than 40 invited participants in advance of each consultation session and collaborated with NGOs and international organization representatives to make line by line edits to the drafts during the last two sessions. The regulations were completed in March 2016 but awaited formal adoption at the close of the reporting period. In an effort to allow victims to move freely and work outside government facilities, the government collaborated with an international hotel chain to identify employment opportunities, advertised the positions to more than 100 trafficking victims, issued work permits to four trafficking victims, and arranged medical screenings as part of the work permit approval process for an additional five victims during the year. However, two of the first four workers subsequently left their jobs, and many victims declined to participate in the program, citing a desire to return home instead. Malaysia initiated fewer trafficking investigations and prosecutions compared to last year, but increased convictions from three to seven. Sentences for convicted traffickers varied, but some were insufficiently stringent. The government questioned several officials after the discovery of mass graves on the Thai border, but did not prosecute any officials during the reporting period for complicity in trafficking crimes. The government maintained a dedicated anti-trafficking police force, doubled the number of specialized anti-trafficking labor inspectors, and increased the number of specialized trafficking prosecutors. The government did not convict any employers for unauthorized retention of passports, despite pervasive passport retention and the inherent difficulty in determining if an employee has willingly allowed his or her employer to safeguard the passport. This marks a decrease from one such conviction in 2014. Malaysia continued its government-sponsored trafficking prevention efforts, including public awareness campaigns and the signing of nine bilateral memoranda of understanding with labor source countries to improve regulation of foreign worker contracts and protect workers' rights.

RECOMMENDATIONS FOR MALAYSIA:

Adopt, publicly gazette, and fully implement the regulations for the 2015 amendments to the anti-trafficking law and allow trafficking victims to obtain employment and move freely in and out of government and NGO facilities; increase the number and effectiveness of trafficking prosecutions and convictions, including of complicit officials, through improved collaboration across law enforcement agencies, stronger cooperation between law enforcement officers and prosecutors, more effective investigations, reduced court delays, and increased judicial familiarity with the full range of trafficking crimes, particularly forced labor; increase the capacity of labor inspectors to identify trafficking victims among vulnerable groups, such as migrant workers, and to effectively investigate labor trafficking; readjust the foreign worker levy schedule to make employers, not employees, responsible for government-imposed fees; improve case management and communication with trafficking victims, including through increased prosecutor-victim interaction at least two weeks prior to trial in compliance with the attorney general's directive; increase collaboration with and allocate additional funding to credible and effective NGOs that house and counsel victims, including in respective native languages; ensure that workers, including domestic workers, are fully informed of their rights to maintain access to their passports at any time, without delay or approval, and without consequence to their status and relationship with their employer, and include language explicitly stating that passports will remain in the employee's possession in model contracts and future bilateral memoranda of understanding with labor source countries; effectively enforce the law prohibiting employers from retaining passports without employees' consent, educate workers and employers on foreign worker rights, including legal recourses and remedies against traffickers, and ensure employers provide lockers or other secure passport storage facilities; expand labor protections for domestic workers, continue investigating allegations of domestic worker abuse, and educate employers about domestic workers' rights; and fully implement the 2016-2020 national plan to combat trafficking.

PROSECUTION

The government demonstrated uneven anti-trafficking law enforcement efforts. These efforts resulted in a decreased number of investigations and prosecutions, but an increase in trafficking convictions from three to seven. Malaysia's 2007 Anti-Trafficking in Persons Act – amended in 2010 and again in 2015 – prohibits all forms of human trafficking and prescribes punishments of up to 20 years' imprisonment, which are sufficiently stringent and commensurate with those prescribed for other serious offenses, such as rape. In 2015, the government completed 158 investigations of potential trafficking cases – a decrease from 186 in 2014 – and reported 247 arrests for suspected trafficking crimes, a figure that was unavailable in the previous year. Officials continued to rely on labor inspections and reports from workers to initiate labor trafficking investigations. The government initiated prosecutions against 38 alleged trafficking offenders – including 24 for sex trafficking and 14 for forced labor – down from 54 prosecutions initiated the previous year. The government convicted seven traffickers – five for sex trafficking and two for labor trafficking – marking an increase from three traffickers convicted in 2014. Sentences for convicted traffickers varied; the average was five years in prison. However, the majority of sentences were weak and incommensurate with those prescribed for other serious offenses, including a trafficker who was administered one day in prison plus a fine of RM 20,000 ($5,000), and three others who given sentences of one to three and one-half years' imprisonment. The Attorney General's Chambers reported a majority of prosecutors were complying with the 2014 written directive requiring them to engage with victims at least two weeks prior to trial to better understand and address victims' concerns about the process and duration of trials. However, the limited availability of certified interpreters and Malaysia's decentralized jurisdictions remained challenges. The government continued to pursue cases that could not meet the evidentiary standard for the anti-trafficking law, re-classifying them under the Employment Act, the Immigration Act, and other related laws for prosecution. However, accountability for traffickers remained disproportionately low compared to the scale of the human trafficking problem in the country.

The Royal Malaysia Police maintained a specialized anti-trafficking unit, and the labor department doubled its specialized trafficking enforcement team to approximately 30 during the reporting period. The Attorney General's Chamber appointed 13 additional trafficking-specialist deputy public prosecutors throughout Malaysia, raising the total to 42, an increase from the 29 on staff in 2014. The government's enforcement of the prohibition on unauthorized passport retention by employers remained limited. The government did not prosecute any employers for this crime in 2015; in 2014, it convicted one defendant for unlawfully withholding 29 employees' passports and fined him RM 5,000 ($1,400). The practice of passport retention remained widespread and problematic; Malaysian law allows employers to hold workers' passports with the workers' permission, but it is difficult to determine if workers have freely given permission and some employers may retain the passports in order to preclude workers from changing jobs.

Each of Malaysia's five enforcement agencies continued to conduct anti-trafficking trainings for an unknown number of officials, focusing on victim protection, law enforcement, and prosecution, among other topics. The government facilitated 10 national briefing sessions at state levels to inform relevant agencies on critical aspects of the 2015 amendments to the anti-trafficking law. Government representatives organized a course for the judicial sector during which the Attorney General's Chamber briefed sitting judges on elements of human trafficking. During the year, Malaysian officials participated in a specialized course and bilateral meeting facilitated by the Philippine regional police on cross-border trafficking issues. The May and August 2015 discoveries of migrant camps and mass graves along the border with Thailand fueled reports corrupt officials facilitated migrant smuggling, which may have included trafficking crimes. Although Malaysian authorities detained an unknown number of police and forestry officials for questioning, the government did not report any prosecutions or convictions of government officials complicit in trafficking.

PROTECTION

The government made some efforts to protect victims. The government continued to reform its victim protection system, including some progress on a regulatory framework to allow victims' freedom of movement and right to work. In July 2015, Parliament passed amendments to the anti-trafficking law, which officially went into force in November 2015. The revised law allows victims to work and to move freely in and out of government facilities; allows the court to order convicted traffickers to pay restitution to trafficking victims and provides an avenue for trafficking victims to bring civil suits against their abusers; expands interim protection orders from 14 to 21 days to allow for more thorough investigations; allows NGOs to house victims legally as designated protection officers; and institutionalizes a high level anti-trafficking committee. With some international funding, the government and an internationally recognized trafficking expert co-chaired a consultation session with civil society stakeholders to solicit feedback and recommendations on the development of implementing regulations for the amendments to the anti-trafficking law, focusing on legal changes allowing trafficking victims to live and work outside of government facilities. The government then hosted two subsequent consultation sessions with civil society. In an unprecedented effort, the government shared the full text of draft implementing regulations with more than 40 invited participants in advance of each consultation session and collaborated with NGOs and international organization representatives to make edits to the drafts during the last two sessions.

The Ministry of Home Affairs completed the implementing regulations in March 2016; however, they were not officially in effect at the close of the reporting period, as they awaited formal adoption and publication in the official gazette. The final version of the draft regulations reflected some international best practices and NGO input. Additional consultations with civil society stakeholders are required to address remaining operational issues, including limitations on certain nationalities working in specific sectors, accountability for providing medical screenings and risk assessments, and the role of NGO protection officers. If fully implemented, the 2015 amendments to the anti-trafficking law would allow all trafficking victims – including foreigners – who received a protection order to stay at a government facility in Malaysia, to work, and to come and go freely from government or NGO facilities, pending a medical screening and risk assessment.

During the reporting period, the government collaborated with an international hotel chain to identify employment opportunities for trafficking victims and advertised the positions to more than 100 trafficking victims in government facilities. Nine accepted the offer during the reporting period. Many who declined participation cited preferences to return to their respective countries of origin or dissatisfaction with the salary offered by the hotel chain, which was nearly double the Malaysian minimum wage. The government issued work permits for four trafficking victims and arranged medical screenings for the remaining five, who awaited the issuance of their work permits at the end of the reporting period. In these cases, the government identified and removed administrative obstacles that make hiring a foreign worker a complicated and protracted process. Two of the four newly employed trafficking victims left their jobs a few weeks after beginning work. The government presented this employment offer to newly identified trafficking victims and other shelter residents on a regular basis, yet many women continued to decline the opportunity.

The government reported independent law enforcement agencies followed standardized procedures to identify trafficking victims. Officials initiated labor trafficking investigations after labor inspections and workers' reports of non-payment of wages. In 2015, the government identified 1,386 potential trafficking victims, of which it confirmed 305 as trafficking victims, on par with 303 identified victims in 2014. The victims were mainly Vietnamese and Indonesian, followed by Filipino and Thai nationals. The government did not always proactively screen the vulnerable migrant worker population for indicators of trafficking, which left an unknown number of potential victims unidentified and without proper care. The anti-trafficking law provides trafficking victims immunity from immigration offenses. Potential trafficking victims who denied they had been subjected to trafficking or whose employers confiscated their documents were sometimes detained, deported, or charged with immigration offenses.

During the year, most trafficking victims were housed in government facilities as part of a court-ordered 21-day interim protection order (for suspected trafficking victims) or a subsequent 90-day protection order (for certified trafficking victims). The longest recorded stay during the year was seven months. Many victims preferred to immediately return to their home countries and, in a few cases, some foreign embassies sheltered victims in order to expedite their repatriation and provide an alternative to being housed in Malaysian government facilities. Although the law permits victims to testify remotely, authorities generally expected victims to remain in-country pending trial proceedings. In an effort to avoid protracted criminal proceedings and return home more quickly, many victims were unwilling to testify against their traffickers. Reports alleged traffickers threatened victims or bribed them with out-of-court settlements.

The Ministry of Women, Family, and Community Development maintained seven facilities to house trafficking victims – four for women, one for men, and two for child trafficking victims. The government provided basic services to those staying in its facilities, including food, medical care, social and religious activities, and security; NGOs provided some victim rehabilitation and counseling services in most shelters, typically without government-allocated funding. During the reporting period, Malaysian officials negotiated a cooperative agreement to provide a local NGO service provider with RM 44,000 ($11,000) to conduct therapeutic activities at the government's trafficking shelter in Kuala Lumpur. Victims could make phone calls at least once per month and more often when shelter capacity was not maximized. The government maintained its allocation of RM 4,000,000 ($1,000,000) to the Ministry of Home Affairs and RM 4,600,000 ($1,150,000) to the Ministry of Women, Family, and Community Development to operate government facilities for trafficking victims in 2015.

PREVENTION

The government modestly increased efforts to prevent trafficking. Malaysia's anti-trafficking council (MAPO) was headed by the home affairs ministry and included representation from five enforcement bodies, other government entities, and two NGO representatives. It met monthly and was active in coordinating interagency anti-trafficking efforts. The cabinet convened one meeting to discuss human trafficking issues during the reporting period and separately approved the implementing regulations for the anti-trafficking law; it held four meetings during the previous year. The government drafted a national action plan spanning 2016-2020 to supersede its 2010-2015 plan. The government's anti-trafficking awareness campaigns continued to highlight criminal penalties associated with commercial sexual exploitation. The government produced and aired 6,447 public service radio broadcasts and 1,347 television segments during the reporting period, an increase from 3,947 and 1,179 announcements, respectively, in 2014. It also disseminated 50,000 informational booklets on trafficking via 139 information centers around the country. Public statements on flights arriving from source countries warned of severe punishments under the anti-trafficking law. Media frequently covered trafficking-related news, although often conflating it with migrant smuggling. The home affairs ministry continued outreach to electronics companies and other Malaysian employers on trafficking issues, including at the Malaysian Employer's Federation Academy Symposium in October 2015; in 2014, it targeted 100 companies in the electronics industry in Penang, Shah Alam, and Johor to sensitize strategic public fora on forced labor indicators, such as passport retention. The government co-organized with international anti-trafficking organizations a regional workshop in Kuala Lumpur in December 2015, wherein participants from the Association of Southeast Asian Nations member states and civil society worked together to develop common indicators for practitioners to more effectively identify trafficking victims.

The government signed memoranda of understanding with the governments of Sri Lanka, Vietnam, Thailand, China, Pakistan, Bangladesh, India, Cambodia, and Indonesia to improve regulation of foreign worker contracts and rights. In December 2015, the government signed two memoranda of understanding to govern the employment of Cambodian domestic workers in Malaysia, which prompted the Cambodian government to rescind its 2011 ban on its nationals traveling to Malaysia to work as household maids; however, some women remained subjected to domestic servitude. Employment law continued to exclude domestic workers from a number of protections, including the country's minimum wage. Labor inspectorates conducted more than 47,000 labor inspections, issued 6,500 citations for contraventions of the Employment Act, and referred seven cases of exploitative labor for criminal proceedings, a relatively low number given the extent of labor trafficking in the country; results of the seven referrals were unavailable at the close of the reporting period. The Labor Court also resolved more than 16,000 cases of non-payment of wages and compelled employers to pay more than RM 35.4 million ($8.85 million) in back pay and approximately RM 2.2 million ($550,000) in fines. The government provided anti-trafficking training for its diplomatic personnel and its troops prior to their deployment abroad on international peacekeeping missions.