How is the US 2014 Trafficking in Persons Report flawed?

Malaysia talks about a policy that allegedly came into effect on ‘1 March 2014’, allows victims of labour trafficking, that do not require further care and protection at shelter homes, to work and reside in Malaysia’ but fails to indicate actual numbers of victims that have actually been allowed to work – hence, giving the impression that all this is really just a policy that is yet to be implemented.

Further, it fails to state whether it will apply to all victims of labour trafficking or just those that came in as documented migrant workers and did not suffer physical abuse. If so, this policy is flawed as it should apply to all victims of labour trafficking, and it will be good if there is an indication as to how long these victims will be allowed to work – just one year, or a period equivalent to 3 – 5 years being the period of employment generally promised to migrant workers that agree to come to work in Malaysia.

Now, the policy is mentioned in the Report, but note this report covers information received only until 31/3/2014. Further, with regards to Malaysia, there is a general lack of transparency and nobody knows exactly what is a Malaysian Policy on this or that – there is no publication of policy or even to be found on websites. Is this policy to be found on the Foreign Affairs website? Or any official government website?

Policy should be gazetted, or maybe like Thailand when Cabinet makes any decision – it is available to the public in the form of Cabinet Resolutions. But in Malaysia, what is policy and what is not is everyone’s guess. Can we say that what the Minister said to media, a policy? No, we cannot because all it maybe is just a personal opinion. Malaysia should be brave and declare to everyone what is Malaysian policy on this and that.

The proposed policy, if implemented, would not affect all victims in shelters; only those labor trafficking victims who showed no signs of physical abuse and who had entered Malaysia with a legal employment pass would be granted work and residence permits.

Malaysia fails to provide any response to the facts in the first paragraph of the US report that alleges that the majority of the trafficking victims are migrant workers – and this included the documented migrant workers.

“The overwhelming majority of trafficking victims are among the estimated two million documented and two million or more undocumented foreign workers in Malaysia.”

Malaysia fails to respond to the allegation that it is Malaysia’s policies and laws is responsible for the situation in Malaysia, i.e.

(1) The ‘contractor of labour’ or ‘outsourcing companies’

"Many Malaysian recruitment companies, known as “outsourcing companies,” recruit workers from foreign countries. Contractor-based labor arrangements of this type—in which the worker may technically be employed by the recruiting company—create vulnerabilities for workers whose day-to-day employers generally are without legal responsibility for exploitative practices."

(2) The employment of documented migrant workers without the relevant proper documentation

"In some cases, foreign workers’ vulnerability to exploitation is heightened when employers neglect to obtain proper documentation for workers or employ workers in sectors other than that for which they were granted an employment visa"

(3) The imposition of additional financial burdens on migrant workers – including the recent shifting of the obligation to pay levy on migrant workers, from what was always before an obligation of employers

Note that this levy payment was imposed on employers as a deterrence to protect local workers. Other than the levy, migrant workers have also been made to pay additional insurance – All these new financial obligations in effect makes them more vulnerable to debt bondage and exploitation.

"In addition, a complex system of recruitment and contracting fees, often deducted from workers’ wages, makes workers vulnerable to debt bondage. A Malaysian government policy implemented in January 2013 that places the burden of paying immigration and employment authorization fees on foreign workers, rather than the employers, increased this risk. A January 2013 government policy placed the burden of paying immigration and employment authorization fees on foreign workers; this increased the risk that workers would become trapped in debts to recruiters or loan sharks, placing them at even greater risk of debt bondage."

(4) The restriction of movement, the confiscation of passports by employers/agents, deception and withholding of wages - practices akin to ‘forced labour’

"Many migrant workers on agricultural plantations, at construction sites, in textile factories, and in homes as domestic workers throughout Malaysia are exploited and subjected to practices indicative of forced labor, such as restrictions on movement, deceit and fraud in wages, passport confiscation, and imposition of significant debts by recruitment agents or employers.... Passport confiscation and contract violations remain widespread, particularly among Malaysia’s estimated 380,000 foreign domestic workers. 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."

(5) Also criticised is the manner in which victims of trafficking are dealt with – ‘rescued’ but not free – but kept in detention, and then sent to immigration department for further detention until repatriation back to their country of origin

Current Malaysian law does not provide for remedy for the victims, including also wages and employment benefits promised but denied to them by unscrupulous employers/agents (the ‘human traffickers’). The ‘protection period’ seems to be more for the prosecutors to complete their investigation and maybe persecute the offender – rather than for the welfare and the wellbeing of the victims. The victim is given no choice also about their future wellbeing.

The foreign victims, even if they come forward, who the authorities decide are not victims of trafficking currently are just sent to the Immigration Department, detained until they are repatriated. This, of course, is a deterrence for the coming forward of victims of human trafficking.

"Malaysian authorities continued to detain trafficking victims in government facilities for periods of time that sometimes exceeded a year; victims had limited freedom of movement and were not allowed to work outside the facilities...., victims whose cases did not result in a prosecution generally were not granted a protection order and were transferred to immigration detention facilities for deportation. Victims’ certification under a protection order was dependent on their ability to provide testimony in a case that could be prosecuted."

It is a known fact that criminal trials take a long time – and as such, the current practice in Malaysia of keeping them for a short period and repatriating them will not work. Further, the continued detention of victims until the end of the trial will not work, and is most unjust for the victim. Has Malaysia made allocation for funds to bring to Malaysia victims to be witnesses in these trials? There is no indication that Malaysia has done so.

(6) The criticism of the lack of pro-active action by Labour Department, etc – still require a complaint to be lodged before they start taking action – investigating, etc

"The Labor Department employed 13 specialized enforcement officers, but continued to rely on workers to initiate a complaint of non-payment of wages before they would investigate a potential trafficking case."

(7) One criticism in the report is the lack of transparency in Malaysia –

"The government did not report any investigations, prosecutions, or convictions of government employees complicit in human trafficking. It did not report information regarding investigations targeting recruitment agencies or other intermediaries who may be involved in trafficking. The government did not provide data as to whether these were sex or labor trafficking victims."

When the government chose to be ‘secretive’ with data and information, and unresponsive to queries made, then people will have to rely on information from other sources. Even statements and memorandums send to the government of Malaysia, do not even receive an acknowledgement of receipt and an assurance that it will be looked into. Even in Parliament, a perusal of the Hansard, will reveal that many of the questions asked are answered – a response that does not provide a clear reply to questions is not an answer.

* Charles Hector is a lawyer and human rights activist based in Pahang.