2017 Trafficking in Persons Report - Malaysia

MALAYSIA: TIER 2

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. The government demonstrated increasing efforts compared to the previous reporting period; therefore, Malaysia was upgraded to Tier 2. The government demonstrated increasing efforts by expanding trafficking investigations, prosecutions, and convictions. Officials strengthened enforcement of the law prohibiting passport retention, convicting 17 employers for unauthorized retention of passports, compared to zero during the previous year. To galvanize coordinated anti-trafficking operations, the government established a new interagency law enforcement taskforce, to which 17 officers from seven agencies were assigned and trained on investigative tactics. The government approved an updated national action plan spanning 2016-2020 and allocated sufficient resources towards its implementation. However, the government did not meet the minimum standards in several key areas. The government's victim protection efforts remained largely inadequate. Newly implemented laws created a process for shelter residents to move freely and to work if they are cleared by medical, security, and mental health professionals and approved by the anti-trafficking council (MAPO). However, bureaucratic delays, including a lack of counselors able to complete required mental health evaluations; risk-averse and paternalistic attitudes towards victims; and lack of victim interest in available work opportunities resulted in a very low number of victims being granted the right to work and/or to move freely. Of the 1,558 victims identified, the government conducted only 106 risk assessments and ultimately granted six victims work visas and 12 special immigration passes for freedom of movement. An additional 28 victims were approved for freedom of movement, but delays in obtaining required passports from their home countries meant that they either had returned home or remained waiting at the end of the reporting period. Complicity among law enforcement officials, in the form of accepting bribes to allow undocumented border crossings, hampered some anti-trafficking efforts. While authorities investigated these crimes, culpable officials typically avoided punishment. However, the government arrested at least forty-two officials during the reporting period for smuggling and trafficking-related offenses, although it is unclear how many they charged with trafficking-related crimes.

RECOMMENDATIONS FOR MALAYSIA

Improve implementation of the regulations for the 2015 amendments to the anti-trafficking law to increase the number of trafficking victims who obtain employment and routinely authorize victims of trafficking freedom of movement; 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 officials and prosecutors, more effective investigations, reduced court delays, and increased judicial familiarity with the full range of trafficking crimes, particularly forced labor; 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 the capacity of labor inspectors to identify trafficking victims among vulnerable groups, such as migrant workers, and to effectively investigate labor trafficking; implement planned changes to the foreign worker levy schedule to make employers, not employees, responsible for recruitment 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; continue collaboration with credible and effective NGOs and implement plans to provide more services for victims, including the construction of new shelters; continue to inform workers, including domestic workers, 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 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 expanded law enforcement efforts. The 2007 Anti-Trafficking in Persons Act amended in 2010 and 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. During the 2016 reporting period, the government conducted 581 investigations of potential trafficking cases, a significant increase from 158 in 2015. Investigations resulted from police raids or reactive labor inspections from employee tips. The government initiated prosecutions against 175 alleged traffickers, up from 38 initiated the previous year. The government convicted 35 traffickers 18 for labor trafficking and 17 for sex trafficking representing the highest number of convictions achieved annually and a notable improvement from seven traffickers convicted in 2015. Of the 35 convicted, 29 were prosecuted under the Anti-trafficking Act, and six others under other laws such as the Immigration Act and the penal code. Fourteen traffickers received prison sentences of at least four years, and some were as high as ten years. Of the remaining 21, eight traffickers received sentences of between one and three years imprisonment, nine received sentences of less than one year, and four received no jail time and were fined. The attorney general's chambers filed appeals for cases involving 13 individuals who received insufficiently stringent sentences. The attorney general's chambers reported a majority of prosecutors maintained compliance 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 inner workings of trials; however, the limited availability of certified interpreters and Malaysia's decentralized jurisdictions made routine compliance difficult. The government strengthened its enforcement of the law against unauthorized passport retention by securing 17 convictions of employers who contravened the Malaysian Passport Act of 1966; it did not prosecute any employers for this crime in 2015, and only one in 2014.

The government established a new interagency law enforcement taskforce, to which 17 officers from seven agencies were assigned and trained on investigative tactics and the identification of high-value targets; the taskforce officially launched operations in January 2017. Between its inception and the end of the reporting period, the taskforce successfully conducted four operations, including a raid on a bird's nest factory, which led to the arrests of two senior and two working-level staff members and the identification of 172 victims. The government expanded the initial six-month mandate of the taskforce to December 2018. The Royal Malaysia Police continued to serve as the lead enforcement agency under the anti-trafficking act and maintained a specialized anti-trafficking unit comprised of 235 officers posted throughout the country. The labor department also had a specialized trafficking enforcement team composed of 30 officers. The attorney general's chambers appointed ten additional trafficking-specialist deputy public prosecutors throughout Malaysia, raising the total to 52, an increase from the 42 on staff in 2015.

The government continued to conduct anti-trafficking trainings, this year reaching more than 1,600 officers, focusing on victim protection, law enforcement, and prosecution, among other topics. Home affairs officials continued to provide anti-trafficking training opportunities for their own officers and those from other relevant agencies, and the anti-trafficking council conducted eight sessions for a total of 125 government officials focusing on sensitization to trafficking issues and amendments to the law. During the year, a total of 99 prosecutors at the attorney general's chambers participated in 10 training programs, three internationally-based and seven in Malaysia.

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. In 2016, investigations into these camps and graves yielded four migrant smuggling convictions in Malaysia; no Malaysian nationals were among those convicted. During the reporting period, the investigations remained ongoing and Malaysia and Thailand continued to cooperate in the search for additional suspects and extradition of 10 identified targets, none of whom were Malaysian citizens. Malaysian officials have also requested that Bangladesh locate and extradite one suspect in the case.

Complicity among law enforcement officials, in the form of accepting bribes to allow undocumented border crossings, hampered some anti-trafficking efforts. The government detained 42 immigration and police officers for their involvement in facilitating smuggling and trafficking crimes; authorities prosecuted five of these officers and the cases remained ongoing at the end of the reporting period. In June 2016, the government unveiled a scheme organized by an unknown number of immigration officials to manipulate the country's passport control system at various points of entry, ostensibly to allow smugglers and traffickers to operate undetected; ensuing, the government fired 15 culpable officers, suspended 14, froze the salaries of eight, and reassigned more than 60 others. There were no reports of criminal prosecutions of these officials.

PROTECTION

The government increased efforts to identify trafficking victims, but protection measures remained inadequate. Not all victims of trafficking were granted freedom of movement and the ability to work while their investigations were pending in the judicial system. The government reported law enforcement agencies followed standardized procedures to identify trafficking victims. Identification of labor trafficking cases continued to rely on reactive labor inspections in response to workers' complaints of non-payment of wages and other violations. In 2016, the government reported identifying 3,411 potential trafficking victims, of which it confirmed 1,558 as trafficking victims, a marked increase over the 305 victims confirmed in 2015. However, enforcement agencies employed the anti-trafficking law broadly by indiscriminately labeling all foreign women during bar or massage parlor roundups as potential trafficking victims without screening for indicators. The government did not always proactively screen the vulnerable migrant worker population for indicators of trafficking, which left an unknown number of potential victims without proper care. The anti-trafficking law provides trafficking victims immunity from immigration-related offenses, such as illegal entry, unlawful presence, and possession of fraudulent travel documents. 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 reporting period.

During the reporting period, the attorney general approved and the deputy prime minister enforced implementing regulations for the amendments to the anti-trafficking law. The amendments allow victims at the discretion of the anti-trafficking council to work and to move freely in and out of government facilities, pending a security risk assessment, medical screening, and mental health evaluation; allow the court to order convicted traffickers to pay restitution to their victims and provide an avenue for victims to bring civil suits against their abusers; expand interim protection orders from 14 to 21 days to allow for more thorough investigations; allow NGOs to serve as designated protection officers; and institutionalize a high-level anti-trafficking committee. During the reporting period, the government continued its collaboration with civil society stakeholders, most notably by co-developing a set of standard operating procedures for granting freedom of movement for victims, which was used to approve applications for freedom of movement and work permits. Several operational issues remained, however, including limitations on certain nationalities working in specific sectors; accountability for providing security risk assessments, psychological evaluations, and medical screenings; and a lack of trained mental health professionals to administer them. Near the end of the reporting period, the government expanded the pool of trained counselors from three to 146 available to conduct psychological evaluations by authorizing counselors working with domestic abuse victims and other vulnerable populations to also evaluate trafficking victims.

Of the 1,558 victims identified, authorities completed 106 risk assessments to consider whether to grant freedom of movement; authorities denied 60 victims freedom of movement based on alleged medical or security concerns. The medical screenings were conducted by trained physicians. During the reporting period, the government issued six work visas to trafficking victims compared to four issued the previous year. The government authorized freedom of movement for an additional 40 foreign victims, but delays in obtaining passports from victims' respective embassies stymied the issuance process of special immigration passes, which are prerequisite for freedom of movement. Ultimately, the government issued 12 special immigration passes during the reporting period. The remaining 28 victims awaited their passports at the end of the reporting period or decided to return to their home countries as soon as their passports were ready. Malaysian officials continued to streamline the normally arduous administrative processes for linking victims interested in employment with a luxury hotel chain by waiving some requirements for new job applicants, focusing mostly on the risk assessment process. However, the remaining six eligible participants declined to participate in the employment program, citing preferences to return to their respective countries of origin or dissatisfaction with the offered salary, which was significantly above the minimum wage. The government commenced monthly allowance payments of 120 Malaysian ringgit (RM) ($27) to victims for incidental expenditures, and appointed 12 individuals to form the first NGO protection officer cohort.

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). Some victims, however, remained in the shelters for up to six months. Shelters became severely over-crowded as increased police efforts to identify victims led to more shelter residents. For example, the largest shelter has a capacity of approximately 70 residents but occasionally housed up to two hundred individuals or more. Most victims who stayed in government shelters did so without freedom of movement or the right to work, in contravention of global best practices. As in past years, many victims preferred to immediately return to their home countries. Although the law permits victims to testify remotely, authorities generally expected victims to remain in-country pending trial proceedings. During the reporting period, many victims were unwilling to testify. The reluctance of victims to provide witness testimony reportedly stemmed from a desire to avoid protracted criminal proceedings, to return home more quickly, and bribes or intimidation from traffickers.

The Ministry of Women, Family, and Community Development maintained seven facilities specifically to house trafficking victims four for women, one for men, and two for child trafficking victims. During the reporting period, the government allocated 3.06 million RM ($682,270) to open three new trafficking shelters in the states of Kedah, Kelantan, and Sarawak. The government provided basic services for all victims staying in its facilities, including food, shelter, medical care, social and religious activities, and security; NGOs provided some victim rehabilitation and counseling services in most shelters, typically without government-allocated funding. Victims could make phone calls at least once per month, and shelter staff provided opportunities for victims to engage in handicrafts and other income-generating activities. In general, NGOs were understaffed and expressed that they had difficulty in maintaining adequate resources to provide consistent services for victims. During the reporting period, Malaysian officials provided three NGOs with 483,000 RM ($107,690) ten times more than was provided in the previous year to conduct various programs and activities with trafficking shelter residents, and also increased its funding allocation to 5.3 million RM ($1.18 million), up from 4.6 million RM ($1.03 million) the previous year, to the Ministry of Women, Family, and Community Development to operate government facilities for trafficking victims.

PREVENTION

The government maintained modest efforts to prevent trafficking. MAPO was headed by the home affairs ministry and included representation from five enforcement bodies, other government entities, and two NGO representatives. It met on a quasi-monthly basis and was active in coordinating interagency anti-trafficking efforts and conducting trainings for government ministries, in addition to consultation sessions with NGO partners to strengthen victim protection. In 2016, the government maintained its allocation of 4 million RM ($891,860) to operate the MAPO secretariat. The deputy prime minister approved an updated national action plan spanning 2016-2020, which outlined the government's objectives to combat trafficking by strengthening laws, improving cooperation and investigation skills among law enforcement agencies, raising public awareness, and increasing partnerships with NGOs on victim protection. The government produced and aired 6,492 public service radio broadcasts and 1,648 television segments during the reporting period, compared to 6,447 and 1,347 announcements, respectively, in 2015. It also disseminated 20,000 informational booklets on trafficking via 139 information centers around the country; it distributed 50,000 the year prior. Labor officials also provided 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. During the reporting period, the government organized 11 awareness-raising programs with the plantation industry to sensitize them to forced labor indicators; the government organized similar outreach activities in the previous reporting period in the electronics sector.

The government had existing MOUs with the governments of Sri Lanka, Vietnam, Thailand, China, Pakistan, Bangladesh, India, Indonesia, and Cambodia to improve regulation of foreign worker contracts and rights. In 2016, the government expanded its MOU with Cambodia enacted in 2015 to govern Cambodian domestic workers in Malaysia to include factory, plantation, and construction workers. Employment law continued to exclude domestic workers from a number of protections, including the country's minimum wage. Labor inspectorates conducted 49,610 labor inspections, which resulted in the issuance of 5,297 correction notices and the referral of 27,063 labor disputes to the labor courts. Labor officials referred two cases to the attorney general's chambers for prosecution, while the rest were resolved through back-payment for exploited workers and levied fines for noncompliant employers; in 2015 the government reported 47,000 labor inspections, 6,500 citations issued for contraventions of the Employment Act, and seven cases of exploitative labor referred for criminal proceedings the outcomes of the seven cases were unknown at the end of the current reporting period. Following claims that one of its labor suppliers misled migrant workers about wages and housed them in poor conditions, McDonald's Malaysia discontinued its work with that labor supplier. The government did not demonstrate efforts to reduce demand for commercial sex. The government provided anti-trafficking training for its diplomatic personnel and its troops prior to their deployment abroad on international peacekeeping missions.

TRAFFICKING PROFILE

As reported over the past five years, 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 children subjected to sex trafficking. The overwhelming majority of trafficking victims are among the estimated two million documented and an even greater number of undocumented migrant laborers in Malaysia. Foreign workers constitute more than 20 percent of the Malaysian workforce and typically migrate voluntarily often illegally to Malaysia from Bangladesh, India, Nepal, Burma, Indonesia, the Philippines, and other Southeast Asian countries, mostly in pursuit of 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 that employ them are subject to a complex system 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. Authorities report large organized crime syndicates are responsible for some instances of trafficking. Official complicity and corruption among immigration and police officers remains a problem and impedes some efforts to address trafficking. 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; however, no Malaysian official was held criminally accountable.

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. Contract violations remain widespread in Malaysia. 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 to prevent workers from changing jobs. In efforts to circumvent anti-trafficking protections established by the Indonesian government, 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 are recruited ostensibly for legal work in Malaysian restaurants, hotels, and beauty salons, but are instead forced or coerced into the commercial sex trade. Vietnamese women and girls enter into brokered marriages in Malaysia and are subsequently forced into prostitution.

The more than 150,000 registered refugees and asylum-seekers in Malaysia lack formal status and 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.