2015 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 forced labor and women and children subjected to sex trafficking. The majority of trafficking victims are among the estimated two million documented and more than two million undocumented foreign workers in Malaysia. Foreign workers – primarily from Indonesia, Bangladesh, the Philippines, Nepal, Burma, and other Southeast Asian countries, often voluntarily migrate to Malaysia in search of greater economic opportunities. Some migrants are subjected to forced labor or debt bondage by their employers, employment agents, or labor recruiters. Many foreign workers are employed by recruiting or outsourcing companies rather than by the factory or plantation where they work, making workers more vulnerable to exploitative labor conditions and limiting the ability of factories, manufacturers, and employers to address some labor concerns. In addition, recruitment and contracting fees are sometimes deducted from workers' wages, increasing workers' vulnerability to debt bondage. In accordance with governmental regulations, the burden of paying immigration and employment authorization fees is placed on foreign workers. Authorities report large organized crime syndicates are responsible for some instances of trafficking. Reports allege some corrupt officials impede efforts to address trafficking crimes.

Some foreign migrant workers on agricultural and palm oil plantations, at construction sites, in the electronics industry, and in homes as domestic workers are subjected to practices indicative of forced labor, such as restricted movement, wage fraud, contract violations, passport confiscation, and imposition of significant debts by recruitment agents or employers. Some employers withhold an average of six months' wages from foreign domestic workers to recoup recruitment agency fees and other debts. Some forced labor victims in Malaysian waters, including Cambodian and Burmese men on Thai fishing boats, reportedly escape in Malaysian territory. Due to concerns about domestic servitude, the Cambodian government prohibits its nationals from traveling to Malaysia for domestic work; however, some Cambodian women enter Malaysia to work despite this ban and some are subjected to domestic servitude. Some Indonesian domestic workers are subjected to domestic servitude in the Middle East after transiting Malaysia en route to these countries to circumvent anti-trafficking protections initiated by the Indonesian government. A significant number of young women, mainly from Southeast Asia, and to a much lesser extent Africa, are forced into prostitution although recruited ostensibly for legal work in Malaysian restaurants, hotels, and beauty salons. Some Vietnamese women and girls enter into brokered marriages in Malaysia and are forced into prostitution.

Refugees in Malaysia – including Rohingya men, women, and children – lack formal status or the ability to obtain legal work permits, leaving them vulnerable to trafficking. Many incur large smuggling debts, which traffickers use to subject some refugees to debt bondage. An estimated 80,000 Filipino Muslims without legal status, including 10,000 children, reside in Sabah, with some vulnerable to trafficking. Children from refugee communities in Peninsular Malaysia are reportedly subjected to forced begging. A small number of Malaysian citizens are subjected to trafficking internally and have been subjected to sex trafficking in Australia, France, South Africa, and the United Kingdom.

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. In 2014, the government consulted with civil society stakeholders to draft and propose amendments strengthening the existing anti-trafficking law and addressing concerns raised in previous Trafficking in Persons Reports, including by allowing trafficking victims to move freely and work, and for NGOs to run the facilities. The amendments remained pending passage by Parliament at the end of the reporting period. The government adopted a pilot project to allow a limited number of victims to work outside government facilities. Authorities continued to provide assistance to foreign victims housed in government facilities for one to six months while under protection orders; these victims had limited freedom of movement and could not work outside the facilities. Malaysia more than doubled the number of trafficking investigations and substantially increased prosecutions, but the government convicted only three traffickers for forced labor and one for passport retention, a decrease from the nine traffickers it convicted in 2013. Malaysia also continued efforts in an expansive prevention campaign that raised awareness about trafficking.

RECOMMENDATIONS FOR MALAYSIA:

Sign into law and implement amendments to the anti-trafficking law to allow trafficking victims to travel, work, and reside outside government facilities, including while under protection orders; increase efforts to arrest, investigate, prosecute, convict, and punish traffickers, including complicit officials; provide all victims equal opportunity to receive protective services that are not contingent on their participation in prosecutions against traffickers; effectively enforce the law prohibiting employers from confiscating passports; improve victim identification efforts and implement procedures to identify labor trafficking victims among vulnerable groups, such as migrant workers; enable trafficking victims in government facilities to make phone calls more than once per month; allocate sufficient funding to NGOs that provide victims in government facilities access to legal services and effective counseling, including in their native languages whenever possible; offer legal alternatives to removal to countries in which victims would face retribution or hardship; increase and strengthen labor inspections to identify instances of forced labor; increase training for law enforcement and judicial officials on how to effectively address all trafficking cases, including the identification of labor trafficking victims, employing a victim-centered framework; expand implementation of the directive requiring prosecutors to prepare victims for judicial proceedings at least two weeks prior to trial; increase efforts to educate migrant workers of their rights, legal recourses, and remedies against traffickers; provide a dedicated budget to the National Anti-Trafficking and Anti-Smuggling of Migrants Council (MAPO); and increase transnational cooperation with other governments in the region on enforcing anti-trafficking laws.

PROSECUTION

The government increased investigations and prosecutions, but obtained only three trafficking convictions – a disproportionate number of convictions compared to the large scale of the human trafficking problem in Malaysia. Malaysia's 2007 Anti-Trafficking in Persons Act (amended in 2010) 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 2014, the government reported 186 investigations of potential trafficking cases, compared with 89 in 2013. It initiated prosecutions against 54 alleged trafficking offenders (including 26 for forced labor, 12 for sexual exploitation, and an unknown charge for 16 cases), an increase from 34 in 2013. The government convicted three traffickers for forced labor and none for sex trafficking, marking a decrease from nine traffickers convicted in 2013. Sentences ranged from two to five years' imprisonment for each trafficking charge. The government issued a written directive in August 2014 requiring public prosecutors to engage with victims at least two weeks prior to trial. Prosecutors reported they spent time with victims in government facilities, better understood victims' concerns about the trial process and timing, and worked to address these concerns. The Royal Malaysia Police operated a specialized anti-trafficking unit, and the immigration and labor departments had specialized trafficking enforcement agents. The Attorney General's Chamber had 29 deputy public prosecutors throughout Malaysia specializing in human trafficking cases. Prosecutors reported increased interaction with law enforcement during the investigation process and were more familiar with victims' accounts prior to courtroom appearances than during the previous reporting year.

NGOs reported officials often failed to investigate complaints of passport confiscation or withholding of wages, especially involving domestic workers, thereby failing to recognize trafficking indicators and instead responding to those who complained by taking action against them for immigration violations. The government continued to inadequately enforce the prohibition on employers withholding employee passports. In 2014, the government convicted one defendant for withholding 29 employees' passports and fined him RM 5,000 ($1,400).

In 2014, each of the enforcement agencies continued to conduct anti-trafficking trainings, reaching nearly 700 officials. For example, Malaysian officials trained 103 coast guard officers on trafficking in Sabah, Kuantan, and Sarawak. Several ministries coordinated a series of anti-trafficking trainings on investigative interview techniques for 205 frontline officials. The Attorney General's Chamber hosted and convened a seminar for 30 judges and prosecutors throughout Malaysia to discuss victim-centered approaches to prosecution. Topics included effective victim interviewing, identifying and meeting victims' needs, and working with interpreters. Reports continued to purport some corrupt immigration officials allegedly facilitated migrant smuggling, which may have contributed to trafficking crimes; however, the government did not report any investigations, prosecutions, or convictions of government officials complicit in trafficking.

PROTECTION

The government increased efforts to improve Malaysia's victim protection system. The government consulted with civil society stakeholders to draft amendments to the existing anti-trafficking law. The cabinet approved the draft amendments and introduced them to Parliament, but Parliament had not passed the amendments at the end of the reporting period. Under the current anti-trafficking law, the government housed victims in government facilities under 14-day interim protection orders for suspected victims and 90-day protection orders for certified victims that were renewable until a victim was no longer needed in judicial proceedings against a suspected trafficker. The government housed most victims in these facilities for one to six months. It denied foreign victims the liberty to leave the premises without a chaperone; victims remained under police custody for hospital visits or court appearances. However, the government cooperated with the embassies of some of the largest sending countries to record legal statements from trafficking victims and allowed the victims to return to their home countries before the end of the legal proceedings when outstanding legal issues, such as repayment of back wages, were resolved. The government did not allow foreign victims to work outside the facilities while under protection orders, and repatriated them to their home countries after their protection orders expired, in accordance with Malaysian law. This policy discouraged some victims from cooperating with authorities or bringing cases to governmental attention.

In 2014, the government identified 1,684 potential victims, of which it confirmed 303 as trafficking victims, an increase compared with 270 in 2013. The majority of the victims were Indonesian nationals, followed by Vietnamese and Filipino citizens. The number of victims subjected to sex or labor trafficking was unclear. NGOs and government officials report labor trafficking was far more common than sex trafficking in Malaysia. The government reported law enforcement agencies followed standardized procedures to identify trafficking victims. Officials continued to rely on workers to report nonpayment of wages to initiate labor trafficking investigations. Front-line officials and prosecutors did not receive adequate training to work with victims, and investigations were typically not victim-centered. Some NGOs reported they did not refer victims to the police, as they believed doing so was detrimental to the welfare of the victims, and some foreign embassies sheltered victims to expedite their repatriation and provide an alternative to being housed in government facilities during lengthy criminal proceedings. Some government officials continued to view foreign victims as migrant workers and not victims, hampering progress on victim protection efforts.

The government operated six facilities to house victims. The Ministry of Women, Family, and Community Development operated four facilities for women and one for child trafficking victims. The home affairs ministry operated Malaysia's only facility for male trafficking victims in Malacca. Progress on the 2014 pilot project to enable two NGOs to operate a government-owned facility for victims was set aside in favor of pursuing holistic change through legal amendments to Malaysia's Trafficking in Persons Act. The government provided basic services to those staying in its facilities; however, NGOs, without government-allocated funding, provided the majority of victim rehabilitation and counseling services. Victim services were inadequate; in some facilities, victims were only allowed to call their families once per month for 15 minutes. Authorities did not disclose full budgetary details on protection efforts but allocated RM 4,000,000 ($1,100,000) to the Ministry of Home Affairs and RM 4,600,000 ($1,300,000) to the women's ministry to operate facilities for female trafficking victims in 2015.

The anti-trafficking law provides victims immunity from immigration offenses, which are outside the scope of the penal code. NGOs and foreign embassies report that victims often preferred to be repatriated immediately rather than remain in Malaysia and wait for the judicial process to conclude. Some trafficking victims, particularly those who denied that they were subjected to trafficking or whose employers confiscated their documents, were not identified as trafficking victims and instead were detained, deported, or charged with immigration offenses.

PREVENTION

The government increased efforts to prevent trafficking. MAPO, headed by the home affairs ministry, included representation from multiple government entities. MAPO leadership was active in coordinating anti-trafficking efforts, but lacked adequate budget support. Malaysia convened four cabinet-level meetings to discuss human trafficking issues during the reporting period. NGOs continued to report deficiencies in the government's progress to implement Malaysia's 2010-2015 national plan of action to combat trafficking. The government reported producing 3,947 public service radio announcements and 1,179 public service television broadcasts during the reporting period, a decrease from 6,078 and 6,032 announcements in 2013. It also published 15,000 informational brochures on trafficking indicators for law enforcement personnel. The Ministry of Home Affairs facilitated outreach sessions in Penang, Shah Alam, and Johor to raise awareness on forced labor indicators, such as passport retention, among 100 companies in the electronics industry.

In February 2015, Malaysian and Indonesian officials announced the creation of an "official channel" for domestic worker recruitment, which aims to expedite recruitment and minimize the number of migrants who seek work illegally. The government did not finalize a memorandum of understanding to govern the employment of Cambodian domestic workers in Malaysia, and the Cambodian government's 2011 ban on Cambodian women's travel to Malaysia for domestic work remained in effect. Domestic workers continued to be excluded from a number of protections under Malaysian employment law, including the country's minimum wage. The government's anti-trafficking awareness campaign highlighted criminal penalties associated with commercial sexual exploitation and the information was disseminated via television and radio media, public fora, and at specific engagements with target groups such as manufacturers. The government provided anti-trafficking training to Malaysian troops prior to their deployment abroad on international peacekeeping missions and anti-trafficking training and guidance for its diplomatic personnel.