THE EVOLUTION OF HUMAN TRAFFICKING LAWS IN MALAYSIA 

BY NUR IMAN NABIHAH BINTI MUHAMMAD EIRFAN  (2217614) 

Human trafficking, as defined by the United Nations, is the recruitment, transportation, transfer, harbouring or receipt of people through force, fraud or deception, with the aim of exploiting them for profit.1 It is an incredibly heinous and disgusting act which preys on the vulnerable people of society, such as children, women, and economically disadvantaged people. This crime has, in some shape or form, existed in the background of history. Nowadays, human trafficking has been brought to the forefront of the majority of the countries in the world, as the rates of human trafficking grows more concerning day by day. The UNODC, in their Global Report on Trafficking in Persons, listed some of the reasons for exploiting these victims such as; sexual exploitation, forced labour and forced criminal activity.2 With these abhorrent forms of exploitation, it is imperative that all countries around the world have a system in place to prevent these happenings and to aid victims. 

Malaysia, a member of the ASEAN countries, is in a similar position to the other members as it is definitively a hotspot of human trafficking activity, whether be it trafficking victims to Malaysia or trafficking Malaysian citizens to other countries. This is largely due to the multiple access points across its many borders. In an article by Flamm (2003, as cited in Michael, 2013), at least 200, 000 – 250,000 women and children are being trafficked from Southeast Asia annually. This number can be said to have escalated throughout the years.  

The major starting point for the push on anti-trafficking laws and organisations starts with the TIP (Trafficking in Persons) Report, which was initiated by the US Department of State to counter the lack of information of the influx of trafficked peoples. It is important to note, before we go any further, to define the phrase “Trafficking in Persons”. It is defined as the act of recruiting, transporting, etc. to achieve the consent from a person having control over another person, whether committed within the country or cross-border, for the purpose of exploitation or which causes the exploitation of a person.3 The Department of State put out a list of criteria for countries’ efforts in combating the issue of human trafficking, their approaches to the victims, and so on. These criteria are as follows: 

Tier 1 

Countries whose governments fully meet the TVPA’s minimum standards for the elimination of trafficking.   

Tier 2 

Countries whose governments do not fully meet the TVPA’s minimum standards but are making significant efforts to bring themselves into compliance with those standards. 

Tier 2 Watch List 

Countries whose governments do not fully meet the TVPA’s minimum standards but are making significant efforts to bring themselves into compliance with those standards, and for which: 

  1. the estimated number of victims of severe forms of trafficking is very significant or is significantly increasing and the country is not taking proportional concrete actions; or 
  1. there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year, including increased investigations, prosecutions, and convictions of trafficking crimes, increased assistance to victims, and decreasing evidence of complicity in severe forms of trafficking by government officials. 

Tier 3 

Countries whose governments do not fully meet the TVPA’s minimum standards and are not making significant efforts to do so. 

The TVPA, as amended, lists additional factors to determine whether a country should be on Tier 2 (or Tier 2 Watch List) versus Tier 3: 

  • the extent to which the country is a country of origin, transit, or destination for severe forms of trafficking; 
  • the extent to which the country’s government does not meet the TVPA’s minimum standards and, in particular, the extent to which officials or government employees have been complicit in severe forms of trafficking; 
  • reasonable measures that the government would need to undertake to be in compliance with the minimum standards in light of the government’s resources and capabilities to address and eliminate severe forms of trafficking in persons; 
  • the extent to which the government is devoting sufficient budgetary resources to investigate and prosecute human trafficking, convict and sentence traffickers; and obtain restitution for victims of human trafficking; and 
  • the extent to which the government is devoting sufficient budgetary resources to protect victims and prevent the crime from occurring.4 

Malaysia then began its journey by ratifying the PALERMO Protocol, or the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime. The country was also previously listed as a Tier 3 nation, but soon after the passing of the Anti-Trafficking in Persons Act 2007 (ATIP), it was moved up to a Tier 2 nation. The Act was made in pursuant of the PALERMO Protocol. ATIP had gone through a number of amendments since then, changing its name to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM). In Section 2 of this Act, both the definitions for human trafficking and human smuggling are present, as they can sometimes be mixed up with each other. The definitions are as follows: 

“trafficking in persons” means all actions involved in acquiring or maintaining the labour or services of a person through coercion, and includes the act of recruiting, conveying, transferring, harbouring, providing or receiving a person for the purposes of this Act; 

“smuggling of migrants” means—  

(a) arranging, facilitating or organizing, directly or indirectly, a person’s unlawful entry into or through, or unlawful exit from, any country of which the person is not a citizen or permanent resident either knowing or having reason to believe that the person’s entry or exit is unlawful; and  

(b) recruiting, conveying, transferring, concealing, harbouring or providing any other assistance or service for the purpose of carrying out the acts referred to in paragraph (a).5 

Inside the Act, Section 12 until 14 govern the Anti-Trafficking (ATIP) portion. For the Smuggling of Migrants (SOM) portion, it is governed by Sections 26A until 26K. The jurisdiction of the ATIP, as stated in Section 52, can be directed to the Sessions Court firstly. However, SOM’s jurisdiction begins at the High Court. 

The process in which TIP victims have to go through is also detailed in ATIPSOM 2007. It consists of 4 major steps, beginning with the rescue of the victim (Section 44). Within 24 hours of the rescue, the enforcement officer has to get an Interim Protection Order (IPO), which is produced by a Magistrate. Next, during the IPO period, the enforcement officer has 14 days to gather evidence to produce a human trafficking case (Section 51). The third step will only be reached if the Magistrate or the Deputy Public Prosecutor is satisfied that there is a case of human trafficking. This step is to issue a Protection Order (PO) to the victim. Lastly, if the case is successful, the victim is released back to society for repatriation and integration (Section 54). 

Other Acts which touch on this topic are the Child Act 2001, Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, Penal Code and Immigration Act 1959/63. Despite the efforts produced by Malaysia in these various acts, there seems to be criticisms on its actual implementation.  

Some criticise the effectiveness of prosecuting a perpetrator, as one only needs to prove under Section 13, that the victim had physical freedom. This does not take into account mental manipulations made by the perpetrator to the victim. Its protection of victims is also something to consider, as the government of Malaysia does not provide proper care or funds to the victim at all, leaving them just as hopeless as they were at the hands of their perpetrator. Malaysia must set out narrower definitions in our legal framework to curb these absurd defences being allowed to destroy a victim’s only hope at proving their trafficked status.6 

In the US Department of State’s 2023 Trafficking in Persons Report of Malaysia, it highlighted several concerns. Although there is a specialised anti-trafficking unit as well as a specialised trafficking enforcement team, the actual resources are insufficient to properly carry out the mandates. These agencies also lack coordination, as only 2 judges specialise in trafficking in Mahkamah Selangor, but the government failed to give a spotlight to the judicial process of trafficking offences, such as implementing expansions of trafficking courts as promised before. 

Perhaps, in order to increase the efforts in the prevention of human trafficking, authorities can refer again to the recommendations given by the Malaysian Human Rights Commission (SUHAKAM) to provide better protection to the victims of human trafficking and smuggling. The recommendations are as follows: 

  • Urging the government to enhance the prosecution mechanism on offenders, protect victims and prevent new cases of trafficking in collaboration with civil society groups, diplomatic missions, regional and international stakeholders; 
  • Non-Governmental Organisations (NGOs) should provide a channel to offer their expertise to the Council For Anti-Trafficking In Persons and Anti-Smuggling of Migrants (CFATIP) as many victims are more likely to get their services; 
  • All victims should be provided with immediate medical examination on arrival at the shelters and visited regularly by medical personnel; 
  • Victims should be informed of the status of their cases and a special court set up to expedite disposal of cases related to anti-human trafficking. 
  • Government should provide intensive training to enhance skills of law enforcement officers at the frontline on how to identify suspected victims of human trafficking. 
  • The government should amend the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIP) to allow victims to receive compensation and work pending resolution of their cases; gazette NGO-run shelters, provide better explanation of cases of human trafficking and smuggling of migrants namely Sections 12 and 13 under ATIP; well as clarify the role of SUHAKAM and its membership in CFATIP; 
  • Urge the government to review Section 2 (1) of the Employment Act 1955 that allow ‘contractor for labour’ which could result in exploitation of workers by recruitment agencies and employers; and 
  • The government should join the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families and the convention relating to the status of refugees.7 

These recommendations were made in the year 2013, in response of Malaysia’s fourth year being on the Tier 2 Watch List. Almost 10 years later, Malaysia is still on the Tier 2 Watch List after a devastating drop to Tier 3 years before. The government of Malaysia must take into account these suggestions and criticisms to run a solid framework that aims to protect victims.  The government should not be satisfied with this continuous status, but rather provide funds and resources to organisations in charge, as well as communicating with NGOs passionate on this topic (ex. Global Shepherds). 

BIBLIOGRAPHY 

2023 Trafficking in Persons Report – United States Department of State. (2023, June 15). United States Department of State. https://www.state.gov/reports/2023-trafficking-in-persons-report/ 

ANTI-TRAFFICKING IN PERSONS AND ANTI-SMUGGLING OF MIGRANTS ACT 2007 (Act 670) 

CASES, T. (2021). PROMOTING VICTIM-BASED JOURNALISTIC REPORTING FOR TRAFFICKING IN PERSONS CASES. 

Countering Human Trafficking in Malaysia — Are We On the Right Track? [2015] 5 MLJ xxxvii 

Hamid, Z., Aziz, N., & Amin, N. (2017). THE EFFECTIVENESS OF TRAFFICKING IN PERSONS REPORT IN COMBATTING HUMAN TRAFFICKING. International E-Journal of Advances in Social Sciences, III(7), 293–299. 

Michael, S. (2013). HUMAN TRAFFICKING IN MALAYSIA: TRENDS AND CHALLENGES. Proceeding of the Global Conference on Business, Economics and Social Sciences. 

SUHAKAM Makes Eight Recommendations To Better Protect Human Trafficking Victims. (2013, June 21). CAMSA. https://www.camsa-coalition.org/en/suhakam-makes-eight-recommendations-to-better-protect-human-trafficking-victims/ 

The Effectiveness of Anti-Human Trafficking Laws in Malaysia: with Reference to Australia [2013] 7 MLJ 3 

United Nations. (2022). Global Report on Trafficking in Persons. 

United Nations. (2023). Human Trafficking. United Nations: Office on Drugs and Crime. https://www.unodc.org/unodc/en/human-Trafficking/Human-Trafficking.html