A commentary on the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (Amendment) Act 2022
12 April 2022
Malaysia is a major and popular destination amongst migrant workers from Southeast Asia and South Asia due to its vast economic opportunities. At the same time, Malaysia is unfortunately considered as a destination and a transit country for trafficking in persons and smuggling of workers.
1 Migrant workers who constitute more than 30 percent of the Malaysian workforce are vulnerable to becoming victims of human or labour trafficking. According to statistics published by the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (“
MAPO”)
2, from 2015 up to June 2021, a total of 1,854 trafficking cases were reported in Malaysia while 2,732 people were arrested in connection with the cases.
3
Human trafficking is a global crime that trades in people and exploits them for profit. Human trafficking is defined in Article 3(a) of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (
“UNTIP Protocol”) as follows:
“
the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
4
Human trafficking takes many forms. They include exploitation in the sex, entertainment and hospitality industries, and when working as domestic workers or forced into marriages. Victims are made to work in factories, on construction sites or in the agricultural sector without adequate pay or at all, are subjected to threats or duress, live in fear of violence and often in inhumane conditions.
On or around June 2021, Malaysia was downgraded to Tier 3 (the worst ranking) in the U.S. State Department’s annual trafficking in persons (commonly known as human trafficking) report (“
TIP Report”).
5 The TIP Report provides an insight into countries’ governmental efforts against human trafficking. The U.S. State Department ranks countries in Tier 3 for failure to comply with the minimum standards for eliminating trafficking or making significant efforts to comply. The downgrading of Malaysia to Tier 3 was partly prompted by allegations by activists of exploitation of migrant workers in the plantation and manufacturing industries which allegations were acted upon by U.S. authorities.
6
On 22 February 2022, the amendments to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (“
ATIPSOM”) via the Anti-Trafficking in Persons and Anti-Smuggling of Migrants(Amendment) Act 2022 came into effect. It is part of the Malaysian government’s efforts to strengthen the regulatory framework to promote a higher level of effectiveness when dealing with issues of human trafficking and smuggling of migrants.
We set out below some of the key changes to ATIPSOM.
- The definition of human trafficking is widened and the definition of coercion is repealed
It was highlighted in the TIP Report that to pursue trafficking charges, Malaysian prosecutors often interpreted the definition of trafficking under the ATIPSOM to require the physical restraint of a victim.
7 As a result, they did not classify many potential trafficking cases as such – especially in cases where coercion was a primary element used by traffickers.
8 As part of efforts to disrupt, prevent and combat the crime of human trafficking and to align with the definition provided in UNTIP Protocol, the definition of “trafficking in persons” is given a wider meaning. The amended section 2 of the ATIPSOM provides that:
“
trafficking in persons” means all actions of recruiting, conveying, transferring, acquiring, maintaining, harbouring, providing or receiving, a person, for the purpose of exploitation, by the following means:
(a) threat or use of force or other forms of coercion;
(b) abduction;
(c) fraud;
(d) deception;
(e) abuse of power;
(f) abuse of the position of vulnerability of a person to an act of trafficking in persons; or
(g) the giving or receiving of payments or benefits to obtain the consent of a person having control over the trafficked person;”
Prior to the amendments, prosecuting a case under section 12 of ATIPSOM for offences related to trafficking in persons was made doubly difficult. First, trafficking in persons was previously defined as “
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.” The prosecution therefore not only had to prove exploitation, but also that the labour or services of the victim were acquired or maintained through coercion.
Secondly, prior to the amendment, section 2 of ATIPSOM defined ‘coercion’ narrowly as:
(a) threat of serious harm to or physical restraint against any person;
(b) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
(c) the abuse or threatened abuse of the legal process;
In this regard, the mental and psychological controls were disregarded as the definition of coercion was only limited largely to physical hardships. This was a major contributing factor to the lower conviction rate as the burden of proving physical harm or restraint beyond reasonable doubt was not always discharged.
9 The deletion of the definition of coercion allows the courts to interpret “coercion” widely i.e. to include non-physical forms of coercion such as psychological oppression, abuse of power, exploiting a trafficked victim’s vulnerability, and fraud or deception. This also expels the need for evidence of physical compulsion.
- Inclusion of more members from non-governmental organisations or other relevant organisations in MAPO
Pursuant to section 6(2) of ATIPSOM, more members from non-governmental organisations (“NGO”) or other relevant organisations are included in MAPO by increasing their participation from five to eight persons with five persons having experience, knowledge and expertise in problems and issues relating to trafficking in persons and the other three having experience, knowledge and expertise in problems and issues relating to smuggling of migrants.
- Increased penalties
The amendments to ATIPSOM prescribe heavier punishments i.e. increased jail sentences and/or introduction of whipping to deter and adequately reflect the heinous nature of the offences as follows:
- Section 13 of ATIPSOM introduces the punishment of imprisonment for life or for a term not less than five years, and whipping for any person who is guilty of the aggravated offences10 of trafficking in person;
- Section 14 of ATIPSOM introduces the punishment of imprisonment for life or for a term not less than five years, and whipping for any person who is guilty of trafficking in children or a person who is unable to fully take care of or protect himself because of a physical or mental disability or condition;
- Section 15A increases the punishment of imprisonment for the offence of profiting from exploitation of a trafficked person from a maximum term of seven years to 15 years;
- Section 19 increases the punishment of imprisonment for the offence of recruiting persons to participate in the commission of an act of trafficking in persons from a maximum term of ten years to 15 years;
- Section 26A increases the punishment of imprisonment for the offence of smuggling of migrants from a maximum term of 15 years to 20 years;
- Section 26B introduces the punishment of imprisonment for life or for a term not less than five years, and whipping for any person who is guilty of the aggravated offences11 of smuggling of migrants; and
- Section 26C increases the punishment of imprisonment for the offence of smuggling migrants in transit from a maximum term of seven years to 15 years.
Further, the TIP Report highlighted that the Malaysian government previously arrested and investigated, but did not prosecute or convict public officials who were allegedly complicit in trafficking and smuggling related crimes.
12 This has resulted in the insertions of sections 13(f) and 26B(d) of ATIPSOM 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 harsher punishments i.e. imprisonment for life or for a term not less than five years, and whipping.
- Protection for a physically or mentally disabled person
The amended section 14 of ATIPSOM affords protection for a physically or mentally disabled person:
(1) Any person, who traffics in persons being a child or a person who is unable to fully take care of or protect himself because of a physical or mental disability or condition, commits an offence and shall, on conviction, be punished with imprisonment for life or with imprisonment for a term which shall not be less than five years, and shall also be liable to whipping.
(2) In a prosecution for an offence under this section, the means used against a trafficked person who is a child or a person who is unable to fully take care of or protect himself because of a physical or mental disability or condition is irrelevant and is not a requirement to be proved.
- Appointment of any public officer as an enforcement officer
Pursuant to the insertion of section 27(1A), the Minister in charge of internal security may, after consultation with any other relevant Minister, appoint any public officer as may be deemed necessary as an enforcement officer for the purposes of ATIPSOM and the public officer appointed as such may exercise all powers of enforcement.
- Management and control of protective officers and shelters for victims
With the insertion of section 42(3), the Minister charged with the responsibility for women, family and community development becomes responsible for any matter relating to the management, administration and control over the place of refuge, the trafficked person in the place of refuge and the Protection Officer
13 appointed under section 43 of ATIPSOM.
Additionally, pursuant to the amendment to section 57 of ATIPSOM, the Minister charged with the responsibility for internal security may, after consultation with the Minister charged with the responsibility for women, family and community development remove trafficked person from one place of refuge to another.
Commentary
Overall, the amendments to ATIPSOM reaffirms the Malaysian government’s political will and commitment to the international legal framework to combat trafficking in persons.
The expanded definition of human trafficking and deletion of the definition of coercion from ATIPSOM allow the prosecution of employers and/or recruitment agents who exploit migrant workers through debt-based coercion i.e. workers who are unable to afford recruitment and travel expenses to Malaysia; and are forced to work to pay off their debts. For example, a 2018 NGO report by Fair Labor Association for the Consumer Goods Forum documented multiple indicators of forced labour 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.
14
The increased jail sentences and the introduction of whipping for trafficking in persons offences amplify one of the efforts underlined by the United Nations in the fight against human trafficking by meting out the appropriate punishments to the perpetrators.
The inclusion of additional members from non-governmental organisations or other relevant organisations in MAPO promotes greater collaboration between the government and NGOs and/or international organisations and allows for such organisations to better influence and advise on the relevant issues including developments at the international level against human trafficking and smuggling of migrants, formulation of policies and programmes to prevent and combat the mischief ATIPSOM seeks to eradicate, and make recommendations to achieve its aims.
The amendment to section 14 of ATIPSOM recognises that a person suffering from a physical or mental disability or condition is more susceptible to exploitation and/or less able to protect himself/herself. According to the Global Report on Trafficking in Persons 2020, those with mental, behavioural or neurological disorder and physical disability account for about 23 percent of the detected victims of trafficking.
15
Some of the notable recommendations underscored in TIP Report that are yet to be implemented by the Malaysian government are as follows:
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- 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 labour.
- Make public the results of investigations involving corrupt officials to increase transparency and deterrence and hold officials criminally accountable when they violate the law.
- Expand efforts to inform migrant workers of their rights and Malaysian labour laws, including their rights to maintain access to their passports at any time, as well as opportunities for legal remedies to exploitation.
Apart from investigating, prosecuting, and convicting traffickers with significant terms of imprisonment, an increase in government engagements with advocates and NGOs would be welcomed to build a more effective anti-trafficking strategy rooted in equity. It is also left to be seen if investigation and prosecution will in fact be vigorously undertaken so that the amendments do not become yet another window dressing.
2 MAPO is a special body set up under the Home Ministry in 2007 to formulate and monitor activities to combat crimes related to trafficking in persons and smuggling of migrants in Malaysia.
4 Article 3(a), UNTIP Protocol.
7 Section 2, ATIPSOM (prior to the amendment) provides that “
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.”
9 In a criminal case, it is the prosecution who bears the legal burden to prove beyond reasonable doubt of the accused's guilt.
10 The circumstances of aggravation are where the offender caused grievous hurt or death; caused the trafficked person to commit suicide; exposed the trafficked person to life threatening diseases, including Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS); engaged in trafficking in persons activities as part of an organised criminal group activity; or the offence of trafficking in persons was committed by a public officer in the performance of his public duties.
11 The circumstances of aggravation are where the offender intended the smuggled migrant to be exploited after entry into the receiving country or transit country whether by the person himself or by another person; subjected the smuggled migrant to cruel, inhuman or degrading treatment; the offender’s conduct gives rise to a risk of death or serious harm to the smuggled migrant; or the offence of smuggling of migrants was committed by a public officer in the performance of his public duties.
13 Section 43(2) of ATIPSOM provides that a Protection Officer shall — (a) have control over and responsibility for the care and protection of the trafficked person at the place of refuge; (b) carry out an enquiry and cause to be prepared a report of the trafficked person as required under this Act; (c) have the power to supervise the trafficked person upon order by the Magistrate or direction by the Minister; and (d) have such other powers, duties and functions as the Minister may prescribe.
This alert contains general information only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such. For further information, kindly contact skrine@skrine.com.