Tier 3 \u2013 not again!

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LAST year, we were classified as Tier 3 in the US State Department’s Trafficking in Persons (TIPs) Report (2021).

In its opening remarks, the report says: “… Malaysia does not fully meet the minimum standards for the elimination of trafficking and is not making significant efforts to do so… [therefore, the country] remained on Tier 3”.

It sounds familiar, doesn’t it? It is the same opening remarks as the previous TIPs Report, except that “downgraded” was used instead of “remained”.

It is as if we are always behind the curve and having to go through Groundhog Day, ie, going through the same cycle of bad experience all over again.

Again, “[a]s in previous years, the government did not adequately address or criminally pursue credible allegations from multiple sources alleging [labour] trafficking in the rubber manufacturing industry and palm oil sector, with the government owning 33% of the third-largest palm oil company in the world”.

More worrying is the government’s anti-trafficking policy seems to have slackened – due to lack of focus, prioritisation and concerted effort.

As noted in the TIPs Report (2022), Malaysia’s Anti-Trafficking in Persons and Smuggling of Migrants Act (2007) criminalises labour and sex trafficking, and prescribed punishments of three to 20 years’ imprisonment and a fine.

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The report commended the punishments as “sufficiently stringent and, with respect to sex trafficking, commensurate with those prescribed for other serious offences, such as rape”.

Malaysia’s downgrade comes at a time when we had amended the act for the third time. The first two improvements were passed in 2010 and 2015. The latest was in December 2021, with 17 amendments all told. The key changes were as follows:

1. The definition of human trafficking is widened that included the repeal of the requirement for coercion.

Nevertheless, as the report observed, the same challenge persists: officials did not consistently comprehend the definition of trafficking and continued to interpret requirement as necessitating the physical restraint of a victim.

This meant prosecutors did not pursue many potential trafficking cases – especially in cases where coercion was a primary element used.

Critically, officials also “continued to conflate human trafficking and migrant smuggling, which impeded overall anti-trafficking law enforcement and victim identification efforts”.

2. Increased punishment – in the form of increased prison sentences and introduction of whipping.

The sections are 13, 14, 15A, 19, 26A, 26B, and 26C. In addition, to strengthen the statutory duty to prosecute officials who are complicit in human trafficking and smuggling, amendments also include the insertions of sections 13(f) and 26B(d), which provide that “a public officer who commits an offence of trafficking in persons and smuggling of migrants respectively in the performance of his public duties commits an aggravated offence…” which results in imprisonment for life or for a term not less than five years, and whipping.