2012 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 migrate willingly to Malaysia from countries including Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, 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. While many of Malaysia's trafficking offenders are individual businesspeople, large organized crime syndicates are also behind trafficking. A significant number of young foreign women are recruited ostensibly for legal work in Malaysian restaurants and hotels, some of whom are legally admitted to the country for this purpose but are coerced into the commercial sex trade. During the year, reports indicated an increasing number of Ugandan women were fraudulently recruited to Malaysia for ostensibly legitimate work but were forced into prostitution upon arrival. Ugandan and Nigerian syndicates transport victims between China and Malaysia, and use threats of physical harm, including through voodoo, to victims and their families to coerce them into prostitution. Many Malaysian labor outsourcing companies recruit workers from India, Vietnam, and other countries, who are often subjected to conditions of forced labor by unscrupulous employers. In some cases, foreign workers' vulnerability to exploitation was 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. 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 where the employer would allege that the workers had breached the terms of their labor contracts, which could result in the revocation of the workers' visas and their subsequent deportation. Some Malaysian employers reportedly did not pay foreign domestic workers three to six months' wages 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. It was also reported to occur on plantations in the east Malaysian states of Sabah and Sarawak and in plywood and pulp factories. There are an estimated 250,000 foreign domestic workers in Malaysia with legal authorization for employment in that sector. NGOs estimate that an additional 100,000 migrant domestic workers are not formally registered; many domestic workers, both documented and undocumented, may be trafficking victims. An estimated 90 percent of all domestic workers are from Indonesia. The Indonesian government had previously banned the arrival of additional Indonesian domestic workers to Malaysia; although this prohibition expired during the reporting period, unresolved negotiations over a revised memorandum of understanding (MOU) between the two governments delayed the arrival of additional Indonesian domestic workers. A small number of Malaysian citizens reportedly were trafficked internally and abroad to Singapore, China, and Japan for commercial sexual exploitation.

The Government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking. The government has not shown 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 third 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 continued to confine foreign victims to substandard facilities and failed to provide them with sufficient legal, translation, or psychological resources; government-certified victims cannot opt to reside outside these facilities. Malaysia's anti-trafficking law does not include adequate provisions for the protection of victims, and the government did not take steps to amend its laws to allow certified victims to reside outside government facilities. The government took steps to ameliorate the poor conditions faced by officially certified trafficking victims – such as granting three-year work permits to one group of 32 male victims of forced labor – but it did not take the more meaningful steps of structurally reforming the unnecessarily complex victim identification and protection regime that likely causes further harm to victims. Front-line officials continued to lack the ability to recognize indicators of human trafficking, limiting their efforts to assist victims and to investigate, prosecute, and convict trafficking offenders.

Recommendations for Malaysia: Increase law enforcement actions under the anti-trafficking law, particularly labor trafficking cases; apply stringent criminal penalties to those involved in fraudulent labor recruitment or forced labor; increase efforts to investigate – and prosecute and punish, as appropriate – reports of public officials who may profit from trafficking or who may exploit victims; 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; with the assistance of NGOs, improve victim protection in government facilities by providing victims regular access to legal services and effective counseling in their native languages; in collaboration with NGOs, develop and implement mechanisms to allow adult foreign trafficking victims to travel, work, and reside outside government facilities, including while under protection order; 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; negotiate MOUs with source countries to incorporate victim protection and prohibit employers from confiscating passports and travel documents and ensure that such MOUs are enforced; make efforts to reduce the demand for both sex and labor trafficking; and increase efforts to raise awareness about the dangers of both labor and sex trafficking.

Prosecution

The Government of Malaysia made insufficient overall progress in addressing human trafficking through law enforcement means during the reporting period. While it continued to prosecute and convict sex trafficking offenders, it did not demonstrate progress in its efforts to punish those who exploit others for forced labor. Malaysian law prohibits all forms of human trafficking through its 2010 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 2011, the government convicted 17 sex trafficking offenders but did not convict any perpetrators of forced labor; this compares with 14 convictions for both sex and labor trafficking offenders obtained in 2010. Sentences for convicted offenders ranged from two to 30 years' imprisonment. Police and immigration officials investigated 97 suspected trafficking cases during the year, 45 of which were labor trafficking cases; they initiated 16 prosecutions, 13 of which involved sex trafficking and three of which involved forced labor. A total of 231 prosecutions, initiated in previous years, remained ongoing at the close of the reporting period. The share of initiated prosecutions that resulted in acquittals continued to remain high, in part the result of a lack of incentives for victims to participate in investigations and prosecutions.

In November 2011, the Labor Department filed charges in a suspected labor trafficking case, the first such action it has taken since being granted authority to file charges in trafficking cases in 2010. Three suspected trafficking offenders, proprietors of a media company, were accused of subjecting five Indian nationals to forced labor distributing and selling newspapers. Initially, the victims – whose documents had been confiscated by their employer – were arrested on immigration violations and the employers were not charged. Following pressure from civil society, the Labor Department subsequently made the decision to investigate the case; the prosecution of the three traffickers remained ongoing at the close of the reporting period.

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. As in previous years, NGOs reported referring cases of alleged labor and sex trafficking to the government but believed that in many 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' failure to recognize indicators of trafficking regularly led them to treat these cases as immigration violations. Labor Department officials often classified trafficking cases as routine labor disputes; labor inspectors were not experienced in anti-trafficking procedures. The government did not report any criminal prosecutions of labor recruiters who used deceptive practices and debt bondage to compel migrant workers into involuntary servitude.

The previously reported prosecution of one immigration official, who was arrested in July 2009 for alleged involvement in trafficking Burmese citizens to Thailand, ended in an acquittal during the reporting period; the government filed an appeal, but no additional developments have been reported. Reports also indicated that collusion between individual police officers and trafficking offenders sometimes led to offenders escaping arrest and punishment. The Malaysian government took no discernible steps to investigate such reports or to prosecute or punish direct involvement in or facilitation of trafficking crimes by Malaysian officials.

Protection

The government made modest but insufficient progress in protecting victims of trafficking during the reporting period, and overall victim protection efforts remained inadequate and negatively affected 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 stay in these facilities for three to six months, and some are detained for more than a year. The government reports that victims are no longer locked in their rooms, yet they continue to be locked inside facilities, and are only permitted to leave for hospital visits or court appearances under the custody of the police; male victims are largely confined to their rooms and 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 majority of funding for government shelter facilities supports arming the facilities with high levels of security, which may serve to prevent victims from escaping rather than to protect them from harm; in fact, shelters that prohibit victims from leaving are regarded by experts as posing a serious risk for re-traumatizing victims. The government provided limited counseling to victims; it reported beginning to grant some victims individual counseling sessions during the year, and enlisting the assistance of five university students to support the work of the two counselors it employed, although it did not always have adequate facilities to offer victims privacy during these sessions. During the reporting period, the government began working with non-governmental entities to increase the availability of counseling and discuss guidelines for improved shelter management. The facilities did not employ medical officers or trained psychologists, and 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 translation services meant that some victims were unable to communicate with staff.

During the reporting period, the government discontinued its policy of treating certified victims as illegal aliens and transferring them to detention facilities for deportation after they provided evidence to prosecutors. 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 severe anxiety at not knowing when they would be allowed to leave. As noted during previous reporting periods, the government's policy of detaining trafficking victims against their will continued to provide a disincentive for victims and their advocates to bring cases to the government's attention or to cooperate with authorities.

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 women's facility in Kuala Lumpur moved to a larger location during the reporting period, although there were reports that it occasionally housed numbers of victims beyond its capacity. The Ministry of Home Affairs ran a similar facility for male victims of trafficking, which also detained suspected and confirmed trafficking victims. The government reported plans for the Women's Ministry to assume responsibility for this shelter, but this did not occur during the year. Despite the availability of specialized NGO resources to serve trafficking victims, including through providing shelters that may provide a more comfortable environment to victims, the government confines victims in its own facilities where it lacks the physical and human resource capacity to accommodate them. The basis for the government's expressed security concerns with NGO shelters was unclear, as no known security incidents have been reported at NGO shelters and their locations were kept confidential.

During the reporting year, 125 foreign women, 75 foreign men, and 22 foreign children were certified as trafficking victims and detained in government facilities. The total number of victims certified, 222, is a significant decrease from the 383 victims identified during the previous year. The government identified an unknown number of Malaysian victims who were exploited within the country during the year. 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. In a positive step, the home minister announced in January 2012 that the government would grant some victims the right to temporarily work in Malaysia following the expiration of their protection order. In March 2012, the government granted three-year work and residency permits to 32 labor trafficking victims deemed to be in danger if returned to their home country. These victims had already endured a stay of more than one and a half years in a government facility. The Home Ministry reported plans to extend the provision of work permits to other victims – meeting certain criteria – following the expiration of their protection order, but it did not provide further details about how this program would be implemented or how many victims would be eligible. It 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. 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 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 during the duration of their traffickers' trials. Victims could theoretically file civil suits against traffickers, but as foreign victims were provided neither any form of legal assistance nor basic translation services, none accessed this option during the year. Law enforcement officers 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, and during trial proceedings authorities did not make adequate efforts to separate victims from their traffickers or recruitment agents, a practice that may have resulted in threats or pressure exerted on victims and their families if they cooperated with police and prosecutors. Several NGOs reported that they generally no longer referred victims to the police, as they believed that doing so was detrimental to the welfare of the victims. Some NGOs not affiliated with the government's anti-trafficking council were barred from further assisting victims after they were placed into a government facility. The government did not provide 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 some unidentified victims continued to be detained, deported, or charged with immigration offenses.

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, which recently assumed its mandate to investigate labor trafficking cases, required evidence of non-payment of wages to investigate 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. Some unidentified victims, particularly those whose documents had been confiscated by employers, were processed as illegal migrants and held in prisons or immigration detention centers prior to deportation.

Prevention

The Malaysian government continued efforts to prevent human trafficking during the reporting period. The National Council for Anti-Trafficking in Persons (MAPO), and its trafficking in persons Secretariat within the Home Ministry continued to coordinate the government's anti-trafficking response; although certain NGOs were included in the MAPO council, some non-affiliated NGOs expressed frustration at not being included in the government's policy discussions in their areas of expertise. In a positive step, the attorney general's office and the Women's Ministry began to invite certain NGOs not affiliated with MAPO to attend meetings to discuss issues of forced labor and victim protection; the government's denial of regular access to a number of NGOs to its victim facilities, however, continues to obstruct effective government-civil society collaboration to combat trafficking. A state-level anti-trafficking council in Selangor, conducted independent anti-trafficking efforts in that state, although it has not been formally recognized by MAPO. The government continued an anti-trafficking public awareness campaign in print media, on the radio, and on television, and officials displayed an increased willingness to speak about the dangers of labor trafficking in addition to sex trafficking. For example, in November 2011, an official from the Human Resources Ministry spoke on a prime time news program to publicize the new provisions of an agreement with Indonesia – including the potential for criminally prosecuting exploitative employers under the anti-trafficking law – and to encourage the public to report suspected abuses. This ministry reported conducting a series of training events reaching 514 domestic workers, 532 employers, and 93 private employment agents. The Home Ministry continued to maintain a watch list of 42 outsourcing companies that recruit foreign workers into Malaysia whose licenses have been suspended for engaging in suspicious activities, such as use of falsified documents or listing false employers, but it did not pursue criminal prosecutions of any outsourcing companies during the year. The government reported imposing administrative sanctions against 136 employers in 2011, but it is unknown whether any of these fines were applied for violations related to human trafficking.

Although the Home Ministry announced plans to investigate allegations that recruitment agencies charged migrant workers excessive, exploitative fees during the government's migrant worker registration program, it took no discernible action to initiate any investigations during the year. In May 2011, the governments of Indonesia and Malaysia signed amendments to a bilateral MOU on domestic workers; the updated agreement includes provisions prohibiting employers from taking possession of domestic workers' passports unless given consent to do so, mandating a weekly rest day for workers, requiring payment of salaries directly into bank accounts, limiting the amount an employer can deduct from a domestic worker's earnings for repayment of recruitment fees, and requiring that workers and employers attend a seminar explaining rights and responsibilities. The MOU provided insufficient protections for workers who are compelled by their employers to "consent" to the withholding of the workers' passports. An existing agreement with the Philippines provides some protections for Philippine workers, and the Malaysian government continued negotiations with the Cambodian government over a proposed MOU to govern Cambodian domestic workers employed in Malaysian. Domestic workers are excluded from a number of protections in Malaysian labor law.

In October 2011, the government amended its Employment Act to provide a legal definition of a "contractor for labour" as an employer; it is unknown what effect these amendments may have on government regulation of contractor-based labor arrangements, which create vulnerabilities to forced labor. Although the confiscation of passports by employers of migrant workers is illegal, the government continued to allow this practice to occur with impunity; it did not prosecute any employers who confiscated passports or travel documents of migrant workers or confined them to the workplace. In January 2012, the government, with an international organization, co-hosted a Bali Process workshop – a regional conference on combating transnational organized crime, including trafficking – attended by delegates from a number of other countries in the region, and earlier in the reporting period, government officials spoke at a conference to engage journalists on human trafficking issues. 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 officers, such as police, immigration, and labor officials, continues 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.