Trafficking Report 2020 : Malaysia

The annual Trafficking in Persons Report reviews the activities of governments around the world in their efforts to fight human trafficking, ranks them accordingly; and provides the data needed for them to improve efforts, increase prosecution of traffickers, and provide the necessary protection for victims. In short, an impetus to governments to eradicate this heinous crime.

In the 2020 report, Malaysia retains its position on the Tier 2 Watch List for the third consecutive year, meaning that it does not fully the minimum requirement standards set by the Trafficking Victims Protection Act (TVPA) but is making significant efforts to improve.

Below is the Malaysia report, extracted from the Trafficking in Persons Report 2020.

MALAYSIA: TIER 2 WATCH LIST

The Government of Malaysia does not fully meet the minimum standards for the elimination of trafficking but is making significant efforts to do so. These efforts included identifying more victims than the previous reporting period, increasing the number of trafficking-specialist prosecutors, drafting victim identification standard operating procedures (SOPs), identifying two volunteer victim assistance specialists that worked with more than 100 victims, and co-hosting the first national conference on antitrafficking. However, the government did not demonstrate overall increasing efforts compared to the previous year. The government prosecuted and convicted fewer traffickers, and the number of labor trafficking investigations was low compared to the scale of the problem. Despite ongoing concerns that corruption facilitated trafficking, the government did not make sufficient efforts to prosecute official complicity in trafficking-related crimes or make public the results of investigations into such crimes. Insufficient interagency coordination and inadequate victim services, which discouraged foreign victims from remaining in Malaysia to participate in criminal proceedings, impacted the success of law enforcement efforts to prosecute traffickers. Because the government has devoted sufficient resources to a written plan that, if implemented, would constitute significant efforts to meet the minimum standards, Malaysia was granted a waiver per the Trafficking Victims Protection Act from an otherwise required downgrade to Tier 3. Therefore Malaysia remained on Tier 2 Watch List for the third consecutive year.

PRIORITIZED RECOMMENDATIONS:

Finalize, disseminate, and train relevant officials, including labor inspectors and immigration officials, on SOPs for victim identification that include information on trafficking indicators. • Increase efforts to prosecute and convict more trafficking cases, including those involving complicit officials and forced labor crimes. • Make public the results of investigations involving corrupt officials to increase transparency and deterrence and hold officials criminally accountable when they violate the law. • Increase efforts to identify trafficking victims among vulnerable populations, including migrant workers and domestic workers. • Create a system for access to timely and accurate interpretation in victims’ primary languages available to law enforcement, the court system, and shelters. • Increase the number of trafficking victims who obtain approval for freedom of movement from shelters, expand freedom of movement to include unchaperoned movement, and increase victims’ access to communication with people outside shelter facilities, including through telephone calls. • Increase law enforcement capacity to investigate and prosecute trafficking cases, including by improving interagency coordination. • Strengthen and continue to expand cooperation with NGOs, including through financial or in-kind support to NGOs to provide some victim rehabilitation services. • Increase the number of trafficking victims who obtain approval for employment and streamline the process for finding a job. • Take steps to eliminate recruitment or placement fees charged to workers by Malaysian labor recruiters and ensure any recruitment fees are paid by employers. • Expand labor protections for domestic workers and investigate allegations of domestic worker abuse. • Reduce prosecution delays, including by providing improved guidance to prosecutors on pursuing trafficking charges, and increase judicial familiarity with the full range of trafficking crimes, particularly forced labor. • 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. • Expand efforts to inform migrant workers of their rights and Malaysian labor laws, including their rights to maintain access to their passports at any time, as well as opportunities for legal remedies to exploitation. • Effectively enforce the law prohibiting employers from retaining passports without employees’ consent, including by increasing resources for labor inspectors, and include language explicitly stating passports will remain in the employee’s possession in model contracts and future bilateral memoranda of understanding with labor source countries.

PROSECUTION

The government maintained weak law enforcement efforts. The 2007 Anti-Trafficking in Persons and Smuggling of Migrants (ATIPSOM) Act—amended in 2010 and 2015—criminalized labor trafficking and sex trafficking and prescribed punishments of three to 20 years’ imprisonment and a fine, which were sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious offenses, such as rape. During the reporting period, the government conducted 277 investigations, initiated 20 prosecutions, and convicted 20 individuals, compared with 281 investigations, 50 prosecutions, and 50 convictions during the previous reporting period. However, these numbers may have also included convictions for smuggling. Of the 277 investigations, 80 involved forced labor (123 in 2018). The government reported sentences ranged from three to 10 years’ imprisonment; in the past, courts sentenced some traffickers to fines alone as punishment. The government did not report efforts to coordinate with foreign law enforcement to investigate or prosecute trafficking cases.

The Royal Malaysia Police continued to serve as the lead enforcement agency under ATIPSOM and assigned 247 officers to its specialized anti-trafficking unit. The labor department also assigned 30 officers to its specialized trafficking enforcement team. Although the government operated an interagency antitrafficking law enforcement task force, coordination among agencies was insufficient. For example, police, immigration, and customs officials often failed to collaborate when an investigation fell under the purview of two or more units or departments. Law enforcement did not proactively investigate potential trafficking crimes, including those NGOs reported to them, and sometimes referred potential victims for immigration violations, rather than investigating their traffickers. This subsequently resulted in increased unwillingness among civil society to report trafficking cases to officials. The government sometimes pursued cases of forced labor as disparate labor law violations instead of criminal cases of human trafficking. Following allegations during the previous reporting period that several rubber-product manufacturers exploited migrant workers, including through methods indicative of forced labor, the government reported it fined some rubber-product manufacturers and continued to pursue 42 charges against one of the companies for breach of the labor law. However, the government did not report investigating or prosecuting these allegations as trafficking crimes. In addition, in August 2019, three nonprofit organizations filed a formal complaint with a foreign government urging it to ban imports of products from a Malaysian palm oil company partially owned by the government due to reports of forced labor at the company’s plantations; the government did not report if it investigated these allegations for trafficking crimes.

The attorney general’s chambers increased the number of trafficking-specialist deputy public prosecutors from 55 to 69 during the reporting period. Nonetheless, some were reluctant to try trafficking cases, and the government did not provide clear guidance to prosecutors on what approvals were required to proceed with trafficking charges; this led to delays in prosecution of trafficking crimes as well as cases not being pursued. The government continued to operate its special trafficking court in Selangor, but it had not implemented plans to expand special trafficking courts around the country. During the previous reporting period, a group of 45 judges drafted best practices for handling trafficking cases but had not yet finalized their recommendations or disseminated the practices. The government continued to conduct or support anti-trafficking trainings, including 35 inservice trainings and 30 transnational or bilateral trainings in the region for police officials focusing on victim protection and law enforcement. The government also hosted 23 trafficking focused training sessions for its labor inspectors and 15 trafficking training programs for 70 prosecutors at the attorney general’s chambers. Nonetheless, observers reported officials did not consistently understand the definition of trafficking. Prosecutors often interpreted the definition of trafficking under ATIPSOM to require the physical restraint of a victim to pursue trafficking charges, which meant prosecutors did not pursue many potential trafficking cases under trafficking charges. A 2014 directive required prosecutors to meet with victims at least two weeks prior to the start of trial to prepare victims to record their statements and to help them understand the judicial process. Prosecutors reported they engaged with victims; however, limited availability of interpretation services made effective communication difficult.

In addition, NGOs reported some prosecutors did not meet with victims before trial as required by the directive and sometimes only met a victim on the first day of a trial. Further, the absence of shelters in northern Malaysia hindered the ability of prosecutors to meet with victims who were relocated to Kuala Lumpur for services. Law enforcement agencies also overwhelmingly cited language barriers with potential victims as an ongoing challenge in their work. While the government sometimes worked with foreign embassies or NGOs to interpret conversations, it did not have an institutionalized way to ensure timely and accurate communication with potential trafficking victims who did not speak Bahasa Malaysia or English. Some foreign victims reported a reluctance to stay in Malaysia to participate in prosecutions due to fears of extended shelter stays, unappealing shelter conditions, and intimidation from traffickers. Although the law permitted victims to testify remotely, authorities generally expected victims to remain in-country pending trial proceedings.

Corruption and official complicity facilitated trafficking and impeded anti-trafficking efforts. The government did not report convicting any complicit officials during the reporting period. The government did not report initiating prosecutions against any of the 600 immigration officials it reassigned in 2017, including seven who were arrested, for their alleged involvement in four smuggling networks that operated at the Kuala Lumpur International Airport, which may have facilitated trafficking. Media reported that from 2015-2018, Malaysian employment agencies and 10 Bangladeshi recruitment agencies bribed officials and politicians in both countries to create a monopoly on recruitment of Bangladeshi workers that increased the recruitment fees charged to workers— which increased Bangladeshi migrant workers’ risk of debt-based coercion. In response to these allegations, the government charged the former joint-deputy prime minister and minister of home affairs with multiple counts of corruption and criminal breach of trust during the previous reporting period, and filed additional charges in June 2019; some charges also related to allegations that he received bribes from a private company to appoint it as the implementer of the one-stop center to process work permits for Pakistani and Nepali migrant workers. The government did not report any new developments regarding the previously reported investigations of 18 immigration and police officers for human smuggling and trafficking in persons crimes, or prosecutions of two officers for exploitation of their domestic employees (unrelated to their official duties). Despite allegations of official complicity in migrant smuggling and trafficking crimes in relation to the 2015 discovery of migrant camps and mass graves in Wang Kelian, containing bodies of suspected Rohingya and Bangladeshi victims of extortion, torture, and other crimes, authorities have not brought charges against any Malaysian official or private citizen. During the reporting period, a Royal Commission of Inquiry concluded its investigation into the Wang Kelian mass grave site; however, the findings of the investigation were not made public, nor were any trafficking charges related to the inquiry announced.

PROTECTION

The government maintained uneven protection efforts. During the reporting period, the government identified 2,229 potential victims and confirmed 82 victims, an increase compared to 1,305 potential victims and confirmed 97 victims during the previous reporting period. Of the 82 confirmed victims, 55 were adult women. The government continued to focus most of its identification efforts on the use of large-scale police raids of suspected commercial sex establishments, rather than placing adequate attention to the investigation of forced labor, the larger trafficking problem in Malaysia. The anti-trafficking council (MAPO) drafted new victim identification SOPs during the reporting period, and the government reported it would disseminate the SOPs to NGOs for their review; however, the government did not finalize MALAYSIA 330 or disseminate the SOPs by the end of the reporting period. Observers reported the current SOPs used by each of the five law enforcement agencies lacked basic indicators that would allow officials to proactively and accurately identify trafficking victims and instead focused on the role and responsibility of the officer once a victim was referred to law enforcement. Officials reported an interpretation that ATIPSOM required a trafficking victim be subjected to physical restraint prevented the government from issuing protection orders to many suspected victims of trafficking. The government did not adequately screen asylum-seekers and refugees for indicators of trafficking. Officials reported the government’s identification of labor trafficking victims often relied on reports of abuse from embassies representing foreign workers or from workers’ complaints of non-payment of wages and other violations, rather than proactive screening efforts. NGOs relayed that authorities often treated potential victims identified during police or immigration raids like criminals; this treatment and the raid-environment were not conducive to victims speaking candidly to law enforcement and consequently contributed to the government’s insufficient identification of victims. NGOs reported that officials arrested and charged some victims for prostitution or immigration violations instead of identifying them as trafficking victims. As a result, the government detained some victims in immigration detention centers, which were often overcrowded and did not provide adequate medical care, food, clothing, or clean water. The government extended its pilot program that provided victim assistance specialists until March 2021. Two specialists worked with more than 100 victims during the reporting period to provide assistance during their identification, through the judicial process, and during their repatriation in their home country.

ATIPSOM required the government to place victims granted a court-ordered 21-day interim protection order (for potential trafficking victims) or a subsequent 90-day protection order (for certified trafficking victims), at a “place of refuge,” designated by the minister of home affairs. The government housed the majority of identified victims in government-operated shelters where they had access to food, medical care, social and religious activities, and security. The Ministry of Women, Family, and Community Development continued to fund and operate eight shelters for trafficking victims, one of which became operational during the reporting period, including five for women, one for men, and two for children. While the law permitted victims who were Malaysian citizens or permanent residents to be placed in the care of family members or a guardian, as opposed to a government shelter or other designated place of refuge, foreign victims were required to remain in government shelters for the duration of their protection orders. The government typically renewed protection orders for certified victims until the completion of the trial associated with their case; this resulted in some victims remaining in the shelters for up to six months. Shelter staff limited victims’ communication, including with family members in their home countries, and the government did not permit victims to possess personal phones in shelters. The government reported it allotted each victim 35 Malaysian ringgit (RM) ($8.56) to make telephone calls each month; however, in practice this amounted to one or two calls supervised by shelter staff. Some government shelters were not able to track phone costs per victim and instead instituted one 10-minute international phone call per month, while others only allowed calls within Malaysia. Further, victims were not permitted to leave shelters unless authorities granted them a special immigration pass that authorized freedom of movement. However, in practice, a victim’s freedom of movement outside of shelters remained restricted to chaperoned trips. NGOs reported these shelter conditions resulted in victims feeling as though they were detained. Of the 82 confirmed victims, the government issued 45 special immigration passes that authorized freedom of movement, compared with 68 passes for 97 confirmed victims during the previous reporting period. The government was less likely to approve these passes for female victims of sex trafficking. While the government reported it streamlined the process to issue immigration passes, which required a security risk assessment, medical screening, and mental health evaluation, by the end of their 21-day interim protection order, the majority of confirmed victims did not receive this pass, and the government continued to lack enough qualified mental health counselors to conduct the required psycho-social evaluation during the appointed timeframe. Although the government did not require victims to participate in prosecutions to access immigration passes or work permits, NGOs reported the government required victims seeking these benefits to make an initial deposition in court. The government issued a work visa to one victim during the reporting period, compared to zero in the previous reporting period.

NGOs reported medical screening was inadequate for victims upon arrival to government shelters, and shelters lacked full access to reproductive health and dental services. Shelters did not have medical staff on site, and accessing medical care required shelter staff to coordinate transportation and a chaperone. An NGO that funded and provided medical and mental health care for victims at four government shelters since 2017 faced budgetary constraints and ceased its programming during the reporting period; the government did not report efforts to seek alternative solutions to provide this care in their absence. The government allocated one million RM ($244,560) to two shelters operated by local NGOs that could assist potential and certified victims. NGOs provided some victim rehabilitation services, including medical care and counseling, without government-allocated funding; however, NGOs continued to express difficulty maintaining adequate resources and staffing levels to provide consistent services for victims. Despite placing translated shelter rules and regulations in five languages in some government shelters, language barriers continued to impact the government’s victim services. The lack of available and adequate interpretation services prevented some victims from understanding shelter rules and their rights during the judicial process, contributing to stress and reluctance to participate in prosecutions. As in past years, many identified victims preferred to return immediately to their home countries. The government worked with foreign diplomatic missions to fund and provide repatriation assistance for victims to return to their countries of origin. The government continued to give monthly allowance payments of 127 RM ($31) to victims for incidental expenditures. The government did not always disburse the funds on a monthly basis; some victims received the allowance as a lump sum when they repatriated home. Shelter staff continued to provide opportunities for victims to engage in handicrafts and other income-generating activities in the shelter. The government offered technical and vocational training for shelter residents in the Kuala Lumpur women’s shelter and the Malacca men’s shelter; since this program was established in February 2019, 51 victims (44 women and seven men) participated in English-language classes and vocational courses in cosmetology. For victims who participated in court proceedings, prosecutors noted they were instructed to request restitution in each case; in 2019, prosecutors requested restitution in 24 cases, compared with 29 in 2018, and secured 124,410 RM ($30,430). The government did not provide legal alternatives to the removal of foreign victims to countries where they may face hardship or retribution; ATIPSOM required that foreign victims without legal residence in Malaysia be referred to immigration authorities for repatriation upon the revocation of their protection order.

PREVENTION

The government maintained efforts to prevent trafficking. The Ministry of Home Affairs led the MAPO council, which included five enforcement bodies, other government entities, and three MALAYSIA 331 NGOs. It met on a quarterly basis and coordinated interagency anti-trafficking efforts to implement the government’s 2016- 2020 national action plan. MAPO held consultation sessions with NGOs and partnered with civil society organization to host the first national conference on human trafficking in August 2019, which was attended by more than 300 government officials, NGO representatives, business leaders, and officials from international organizations. The government collected more than 200 recommendations made by attendees to consider for the next national action plan. In 2019, the government maintained its allocation of four million RM ($978,230) to operate the MAPO secretariat. The communications ministry created eight television and eight radio anti-trafficking programs and continued to distribute brochures raising trafficking awareness in multiple languages. Unlike in previous years, the government did not air any public service television broadcasts, but it did air 27,667 radio broadcasts, an increase compared to 16,880 radio broadcasts in 2018. Labor officials continued to provide banners and other signage at the Kuala Lumpur International Airport in holding lounges for newly arrived migrant workers in a range of languages to help educate foreign workers about their rights in Malaysia. In addition, the Ministry of Foreign Affairs hosted a seminar on trafficking for 21 students pursuing degrees in diplomacy.

The government reported it enforced its ban of Malaysia-based outsourcing companies, which previously often used practices that perpetuated debt-based coercion among migrant workers, as of March 2019. The government’s Private Employment Agency Act (PEAA) required all private recruitment agencies to secure a license with the Ministry of Human Resources to recruit foreign workers, including domestic workers. The PEAA capped employee-paid recruitment placement fees at 25 percent of the first month’s salary for Malaysian workers employed within or outside of Malaysia and one month’s salary for non-citizens employed within Malaysia. The law did not define what comprised a “placement fee” and enforcement of this rule was lacking; the majority of migrant workers in Malaysia paid much higher fees to recruitment agents, including in their home country, which contributed to the workers’ vulnerability to debt-based coercion. The government also mandated employers pay the foreign worker levy, a one-time cost paid to the government for any non-Malaysian the company hired, instead of forcing workers to bear the cost. The government did not report investigating any employment agencies for violating the PEAA, compared to 14 investigations during the previous reporting period. In January 2020, the government launched an online application system for foreign workers to renew their temporary work permits without using a broker.

Employment law continued to exclude domestic workers from a number of protections, including maximum working hours and the country’s minimum wage. Civil society observed a lack of adequate efforts to inform migrant workers of their rights and Malaysian labor regulations. The labor department employed 673 labor inspectors; however, despite ongoing concerns of a prevalence of labor trafficking in Sabah and Sarawak, the majority of inspectors were assigned to peninsular Malaysia. Nonetheless, the lack of adequate resources, including for additional labor inspectors, hindered the government’s ability to adequately identify labor trafficking and enforce the prohibition on employerperpetrated passport retention, which remained widespread. The government did not report any prosecutions or convictions for unauthorized retention of passports. Labor courts resolved 17,448 labor disputes and ordered employers to provide workers back wages amounting to more than 44 million RM ($10.76 million) and levied fines against employers who violated labor laws of 1.1 million RM ($269,010).

As of the end of the reporting period, the government had not made public the results of a survey it funded in 2018 on the prevalence of forced and child labor in the palm oil sector, despite having completed data collection in January 2019. Malaysian birth registration policies left more than 450,000 individuals, including children, stateless and therefore unable to access some government services, including legal employment, increasing their vulnerability to trafficking. The law did not permit the government to grant asylum or refugee status, which left more than 178,000 refugees and asylum-seekers in Malaysia, including more than 97,000 Rohingya, unable to obtain legal employment, which increased their vulnerability to exploitation. Further, while some refugee community schools operated in Malaysia, the law did not permit stateless and refugee children to attend public schools. The government did not demonstrate efforts to reduce demand for commercial sex. The government provided anti-trafficking training for its diplomatic personnel, and for its troops prior to their deployment abroad on international peacekeeping missions.

TRAFFICKING PROFILE

As reported over the past five years, human traffickers exploit domestic and foreign victims in Malaysia, and to a lesser extent, traffickers exploit victims from Malaysia abroad. The overwhelming majority of victims are among the estimated two million documented and an even greater number of undocumented migrant workers in Malaysia. Foreign workers constitute more than 20 percent of the Malaysian workforce and typically migrate voluntarily—often through irregular channels—from Bangladesh, Burma, Cambodia, India, Indonesia, Laos, Nepal, the Philippines, Thailand, and Vietnam. Refugees, asylum-seekers, and stateless individuals who lacked the ability to obtain legal employment in Malaysia were also vulnerable to trafficking. Employers, employment agents, and illegal sub-agents exploit some migrants in labor trafficking primarily through debt-based coercion when workers are unable to pay the fees for recruitment and associated travel. Some agents in labor source countries impose onerous fees on workers before they arrive in Malaysia and Malaysian agents administer additional fees after arrival—in some cases leading to forced labor through debt-based coercion. Large organized crime syndicates are responsible for some instances of trafficking. Employers utilize practices indicative of forced labor, such as restrictions on movement, violating contracts, wage fraud, assault, threats of deportation, the imposition of significant debts, and passport retention—which remained widespread—to exploit some migrant workers in labor trafficking on oil palm and agricultural plantations; at construction sites; in the electronics, garment, and rubber-product industries; and in homes as domestic workers. 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 retain the passports to prevent workers from changing jobs. A 2018 NGO report documented multiple indicators of forced labor associated with the production of palm oil in Malaysia, including coercive practices such as threats, violence, lack of clarity of employment terms and conditions, dependency on the employer, lack of protection by police, debt bondage, high recruitment fees, and involuntary overtime. Traffickers use large smuggling debts incurred by refugees to subject them to debt-based coercion. North Koreans working in Malaysia may have been forced to work by the North Korean government in 2019, however, Malaysian officials reported there were no North Korean workers remaining in Malaysia as of December 2019.

Traffickers recruit some young foreign women and girls—mainly from Southeast Asia, although also recently from Nigeria— ostensibly for legal work in Malaysian restaurants, hotels, and beauty salons, or for brokered marriages, but instead compel them into commercial sex. Traffickers use fraudulent recruitment practices to lure Rohingya women and girls residing in refugee camps in Bangladesh to Malaysia, where they are coerced to MALAYSIA 332 engage in commercial sex. Traffickers also exploit men and children, including Malaysians, into commercial sex. Traffickers exploit Malaysian orphans and children from refugee communities in forced begging. Traffickers increasingly exploit Malaysian women and children in forced labor. Stateless children in Sabah were especially at risk of forced labor in palm oil production, service industries, and in forced begging. Media report young male and female Malaysians pay recruitment fees for promised high-paying jobs, but traffickers transfer them to Cambodia and exploit them and authorities arrest them for immigration violations. In order to circumvent the Indonesian government’s ban on Indonesian migration to 21 countries, some Indonesian workers transit Malaysia legally en route to Middle Eastern countries, where traffickers exploit some in forced labor.

Official complicity continues to undermine anti-trafficking efforts. Ongoing corruption related to processes for foreign nationals to work in Malaysia increase the cost of migration and consequently increase migrant workers’ vulnerability to trafficking through debt-based coercion. Corrupt immigration officials facilitate trafficking by accepting bribes from brokers and smugglers at border crossings, including at airports. Some government officials profit from bribes and direct involvement in extortion from and exploitation of migrants.