Malaysia downgraded to Tier 3 - Trafficking in Persons Report 2014 - contractor for labour system, etc.. blamed?
The US State Department Trafficking in Persons Report 2014, has downgraded Malaysia to Tier 3 from the previous standing of Tier 2 Watch List
What is interesting is that the main reasons for the downgrading seems to be labour issues - the 'contractor for labour system' ('outsourcing companies'), the move to make migrant workers pay more - the levy, etc..., Read on... I may post more comments about this report later on
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.
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.
Below is what was said about Malaysia is the said report, the highlights are mine....
MALAYSIA (TIER 3*)
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 overwhelming majority of trafficking victims are among the estimated two
million documented and two million or more undocumented foreign workers in
Malaysia. Foreign workers typically migrate willingly to Malaysia from other
countries in Asia—primarily Indonesia, Bangladesh, the Philippines, Nepal, Burma,
Cambodia, Vietnam, India, Thailand, and Laos—in search of greater economic
opportunities. Some of the migrants subsequently encounter forced labor or debt
bondage at the hands of their employers, employment agents, or informal labor recruiters.
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. 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. 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 significant number of young
foreign women are recruited ostensibly for legal work in Malaysian restaurants,
hotels, and beauty salons, but are subsequently coerced into the commercial sex
trade. Some Vietnamese women and girls enter into brokered marriages in
Malaysia and are subsequently forced into prostitution. NGOs report Ugandan,
Somali, and Ethiopian women are fraudulently recruited to Malaysia for ostensibly
legitimate work, but subsequently forced into prostitution. Victims
from Nigeria and Rwanda have also been identified. Malaysian authorities report
that large organized crime syndicates are responsible for some instances of
trafficking.
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. Some victims of forced labor in Malaysian
waters, including Cambodian and Burmese men on Thai fishing boats, reportedly
escape in Malaysian territory. NGOs have reported allegations that workers on
palm oil plantations are subjected to forced labor. 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. The Government of Cambodia
officially prohibits its nationals from traveling to Malaysia for domestic work;
however, some women continue to enter the country using tourist visas to engage
in domestic work, and some who arrived prior to the imposition of the ban have
been subjected to domestic servitude. Indonesian victims may transit through Malaysia
en route to Middle Eastern countries—to circumvent anti-trafficking protections
put in place by the Indonesian government—where they become victims of domestic
servitude.
Refugees in Malaysia lack formal status or the
ability to obtain work permits under Malaysian law, making them vulnerable to
trafficking. Many incur large smuggling debts; traffickers use these
debts to subject some refugees to debt bondage. UNHCR estimates 80,000 Filipino
Muslims without legal status, including 10,000 children, reside in Sabah. Some
children from refugee communities are reportedly subjected to forced begging. Stateless
persons in Sabah—some of whom are unaccompanied children of Filipino and
Indonesian migrant workers who have been deported—as well as refugees in this
region are vulnerable to forced child labor and debt bondage. A small number of Malaysian
citizens are subjected to trafficking internally and have been subjected to
trafficking in Australia, China, France, Japan, Singapore, Solomon Islands,
South Africa, and the United Kingdom for commercial sexual exploitation.
One NGO observed an increase in the
number of Malaysian women who were subjected to sex trafficking overseas during
the year.
The Government of Malaysia does
not fully comply with the minimum standards for the elimination of trafficking.
In the 2012 and 2013 Trafficking in Persons Reports, Malaysia was granted consecutive
waivers from an otherwise required downgrade to Tier 3 on the basis of a
written plan to bring itself into compliance with the minimum standards for the
elimination of trafficking. The Trafficking Victims Protection Authorization Act
(TVPA) authorizes a maximum of two consecutive waivers. A waiver is no longer
available to Malaysia, which is therefore deemed not to be making significant
efforts to comply with the minimum standards and is placed on Tier 3.
During the reporting period, the
government made limited efforts to improve its flawed victim protection regime. 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. The government
provided minimal basic services to those staying in its shelters; NGOs—with no financial
support from the government—provided the majority of rehabilitation and
counseling services. During the reporting period, the government identified two
NGOs to operate a new shelter for trafficking victims and allocated funds to
support the shelter, but the shelter had not opened by the end of the reporting
period; authorities reported the shelter will be operational later in 2014. The
government identified 650 potential victims in 2013—significantly fewer than
the 1,096 potential victims identified in 2012. It reported fewer
investigations (89 compared to 190) and fewer convictions (nine compared to 21)
compared to the previous year. Prosecutors reported little interaction with law
enforcement during the investigation process and were often unfamiliar with
victims’ accounts prior to when they appeared as witnesses for the prosecution.
In November 2013, the government implemented standard operating procedures for
the investigation and prosecution of trafficking offenses. The government announced plans to enable
certain foreign labor trafficking victims to seek work while living in
shelters; this policy had not taken effect at the end of the reporting period.
RECOMMENDATIONS FOR MALAYSIA:
Amend the anti-trafficking law and government
regulations to allow trafficking victims to travel, work, and reside outside government
facilities, including while under protection orders; provide, and
refer all victims to, protective services within Malaysia, regardless of the
likelihood their cases will go to trial; improve victim identification efforts,
including by implementing procedures to identify labor trafficking victims among
vulnerable groups, such as migrant workers; establish polices to
prevent victims of trafficking from being punished for crimes committed as a
result of being trafficked; offer legal alternatives to removal to countries in
which victims would face retribution or hardship; increase efforts to
investigate and prosecute trafficking offenses and convict and punish
traffickers, particularly in cases involving labor trafficking; enforce the law
that prohibits employers from confiscating passports; apply stringent criminal
penalties to those involved in fraudulent labor recruitment or forced labor; increase
efforts to investigate—and prosecute and punish, as appropriate—public
officials who may profit from trafficking or who exploit victims;
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; encourage increased efforts by
prosecutors to prepare victims for participation as witnesses in trafficking trials;
consider funding specialized NGOs to provide victims in government facilities
regular access to legal services and effective counseling in their native
languages; 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; and increase transnational cooperation with other
governments in the region on enforcing anti-trafficking laws.
PROSECUTION
The Government of Malaysia
decreased anti-trafficking law enforcement efforts, reporting fewer
investigations and convictions related to human trafficking in 2013 than 2012. It
hired an additional 101 officers to staff Malaysia’s anti trafficking police
unit. Malaysia’s 2007 Anti-Trafficking in Persons Act (amended) prohibits all
forms of human trafficking and prescribes punishments of up to 20 years’ imprisonment,
penalties that are sufficiently stringent and commensurate with those
prescribed for other serious offenses, such as rape. November 2010 amendments
to the law broadened the definition of trafficking to include all actions
involved in acquiring or maintaining the labor or services of a person through
coercion. The government reported initiating 89 new investigations of trafficking
cases in 2013, a decrease from 190 investigations in 2012. The attorney
general’s office reported initiating prosecutions against 34 defendants for
alleged human trafficking offenses; the government initiated 63 prosecutions
against an unknown number of defendants in 2012. The government convicted nine traffickers (five
for sex trafficking and four for forced labor), a decrease from 21
traffickers (11 for sex trafficking and 10 for forced labor) convicted
in 2012. Sentences ranged from three to 15 years’ imprisonment for
each trafficking charge and averaged 5.8 years; some traffickers received
lengthier sentences because they were convicted on multiple charges. Poor
government treatment of victims remained a significant impediment to successful
prosecutions. NGOs reported referring cases of alleged labor and sex
trafficking to the government, some of which the authorities failed to
investigate. NGOs reported that 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; these front-line officers failed to recognize indicators
of trafficking and instead treated these cases as immigration violations.
The Royal Malaysia Police
operated a specialized anti-trafficking unit and the government reported hiring
an additional 101 officers into the unit in 2013. The government also reported hiring
63 people who will specialize in combatting trafficking in the Immigration
Department. 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. The Attorney General’s
Chamber had 29 deputy public prosecutors throughout Malaysia specializing in
human trafficking cases. Prosecutors reported little interaction with law
enforcement during the investigation process and were often unfamiliar with
victims’ accounts prior to courtroom appearances. In November 2013, the
government implemented standard operating procedures for the investigation and
prosecution of trafficking offenses. The government’s National Anti-Trafficking
and Anti-Smuggling of Migrants Council (MAPO) reported that 248 government officials
from the Royal Malaysian Police, Malaysian Maritime Enforcement Agency,
Immigration Department, and Labor Department received specialized
anti-trafficking training in 2013. The government reported several additional
anti-trafficking training sessions attended by more than 500 law enforcement officials
during the year. The Laos and Chinese governments reported cooperating with
Malaysian authorities on trafficking investigations in 2013.
Press reports continued to accuse
some immigration officials of facilitating smuggling, including the
transportation of trafficking victims. 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.
PROTECTION
The government made limited and
inadequate efforts to improve its flawed victim protection regime. Malaysian
authorities detained
trafficking victims in government facilities as part of a court-ordered
protection measure; these protection orders lasted 90 days, but could be
extended. Most victims stayed in these facilities for three to six months; some
were detained for more than a year. The government deported victims to their home
countries after their detention ended, in accordance with Malaysian
law. Experts regard shelters that prohibit victims from leaving as posing a
serious risk for re-traumatizing victims.
In 2013, the government reported
identifying 650 potential trafficking victims and, of those, confirmed 270 were
victims of trafficking (254 adult females and 16 adult males). This represents
a significant decrease from the 1,096 potential victims and 444 certified
trafficking victims confined in government facilities in 2012. The government did not
provide data as to whether these were sex or labor trafficking victims.
More than half of the victims were Indonesian nationals. The government reported
that individual law enforcement agencies followed standardized procedures to
identify trafficking victims; however, government officials lacked formal
government-wide procedures for the proactive identification of victims among
vulnerable groups. Law enforcement officers and prosecutors did not receive
adequate specialized training to work with victims, and investigation
procedures—such as asking victims to recount their trafficking experience to
numerous officials—sometimes did not take into account the best interests of
victims.
Under Malaysia’s anti-trafficking
law, government-identified trafficking victims are required to stay in
government-approved shelters. The government operated five facilities to house
victims of trafficking. The Ministry of Women, Family, and Community Development
operated three facilities for women—one in Kuala Lumpur, one in Johor, and one
in Kota Kinabalu, Sabah. This department also operated one shelter for child
trafficking victims in Negeri Semibilan, near Kuala Lumpur. The Home Ministry operated
Malaysia’s only shelter for male trafficking victims in Malacca. The government
detained foreign victims in these facilities 24 hours per day, with few
exceptions. It did not allow foreign adult victims to leave the facilities
without a chaperone—and only then for hospital visits or court appearances
under the custody of police. Male victims had limited freedom of movement
inside the one facility for men. The government did not allow foreign
trafficking victims to work outside the facilities while under the protection
order; in past years, the government granted work permits to some trafficking
victims after they left the shelter. The government provided some basic services to those staying in its shelters.
NGOs—with no financial support from the government—provided the majority of
victim rehabilitation and counseling services. At times, the government granted
NGOs access to victims in government facilities; however, it prevented some
victim assistance organizations from accessing shelters to provide services.
One NGO reported improved access to the government-run shelters to provide
psychological counseling in 2013. The government did not release detailed budget
information on its victim protection efforts, but it reported allocating the
equivalent of approximately $1,221,000 to the Ministry of Home Affairs for
anti-trafficking work and $909,000 for the Women’s Ministry in its 2014 budget.
In 2013, the government reported
progress on plans for a pilot project to enable two NGOs to operate a government-owned shelter for trafficking
victims in 2014. This shelter had not opened at the end of the reporting
period. The government had allocated funds to support the shelter, but grants
had not yet been extended to the two NGOs. In March 2014, the government
announced plans for a new policy to
enable certain victims of labor trafficking to have freedom of movement and reside
in Malaysia for a maximum of three months while they sought work. 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. The planned policy had not taken effect at the end of
the reporting period.
Victims were not allowed to leave
the country pending trial proceedings. The government’s policy of forcing
trafficking victims into facilities discouraged victims from bringing cases to
the government’s attention or cooperating with authorities.
Prosecutors attributed the high
acquittal rate of trafficking cases in part to the lack of victim cooperation. Some
foreign embassies sheltered victims directly to expedite their repatriation and
protect them from detention in Malaysian facilities during lengthy criminal
proceedings. Some NGOs reported that they did not refer victims to
the police, as they believed doing so was detrimental to the welfare of the
victims. Malaysia’s anti-trafficking law provides victims immunity from
criminal prosecutions for some crimes as a result of being trafficked; however,
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. Some
unidentified victims, particularly those whose documents had been confiscated
by employers, continued to be detained, deported, or charged with immigration
offenses. NGOs reported that Malaysian authorities released a small number
of identified victims to an embassy which had given assurances to the Malaysian
government that it would repatriate the victims immediately. However, some of
the victims were reportedly required by the embassy to work to earn money to pay
for their return home.
PREVENTION
The Malaysian government improved
efforts to prevent human trafficking during the reporting period. MAPO, headed
by the Home Ministry, included representation from multiple government
entities. The Ministry of Health joined MAPO in 2013 and began providing health screenings to foreign victims in
shelters. MAPO continued to meet monthly to coordinate the government’s
anti-trafficking response. As in previous years, NGOs reported varying degrees
of inclusion in the government’s anti-trafficking policymaking; some NGOs were
formally affiliated with MAPO, and others were not included in policy
discussions related to their areas of expertise. NGOs reported that it was
difficult to assess the government’s progress in implementing Malaysia’s
2014-2015 anti-trafficking action plan. The government reported producing 6,078
public service radio announcements and 6,032 public service television
announcements to raise awareness of human trafficking during the reporting
period—a significant increase from public service efforts during the previous
year. It also produced ads in newspapers and pamphlets and on billboards to
raise awareness of trafficking issues.
During the year, 1,351
Bangladeshis entered Malaysia to work under a January 2013 memorandum of
understanding (MOU) between the Governments of Bangladesh and Malaysia that
reinstated a formal labor migration channel between the countries. Existing
agreements with Indonesia and the Philippines provided some protections for
domestic workers from these countries. In October 2013, the government ceased to
allow Indonesians to enter Malaysia and then obtain a “journey performed” work
permit; workers and agents had used this type of visa to circumvent Indonesian
government regulations governing migration for positions as domestic workers.
The government did not finalize an MOU 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. In
late 2013, the Thai and Malaysian governments finalized a bilateral MOU to
share information to combat human trafficking. 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. Domestic workers remained excluded
from a number of protections under Malaysian labor law, including the country’s
recently implemented minimum wage. The government did not take measures to
reduce the demand for commercial sex acts. The government provided anti-trafficking
training to Malaysian troops prior to their deployment abroad on international
peacekeeping missions
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