Thursday, July 01, 2010

Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

Malaysia's Anti-Trafficking in Persons Act 2007 is a bad law....and one must be careful when one asks the government to use this law against certain persons and classes of persons.

It is just too wide...

A consideration of the definition in section 2 of the Act shows that it is so wide - that it can even cover situations where workers are exploited by employers....

"trafficking in persons" or "traffics in persons"  means the recruiting, transporting, transfering, harbouring, providing or receiving of a person for the purpose of exploitation;

"exploitation" means all forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, any illegal activity or the removal of human organs;

2 - The danger of this law, is that its solution with regard to victims only extends to rescue, protection, rehabilitation and deportation. There is no provision for compensation..damages, etc. In cases of of oppressed workers who have not been paid, this Act will not consider them as workers that ought to be get their fair wages, etc...but just as 'victims of trafficking'.

What happens to the victims?


Interim Protection Order (14 days) - to determine whether victim is a 'trafficked person'

YES - Trafficked person - then a Protection Order
Local:'...placed in a place of refuge for a period not exceeding two years.' ***parent, guardian or relative can later apply that victim be placed under their custody
Foreigner: 3-month Protection Order & then send to Immigration

Not Trafficked Person
Local: Release
Foreigner: Send to Immigration

Send to Immigration? - what does that mean?
I believe that what this means is that they will be deported just like any other undocumented migrant workers, and if they are documented - they will be send back.
Even the purpose of the 'Protection Order' seem to be more for completing investigations...rather than for the care and protection of the victim.

Thus, in the case of workers, it is best to use the labour laws...and other laws, rather than the Anti-Trafficking in Persons Act if we want real justice for the victims.

44.  Taking a person into temporary custody.
(1) An enforcement officer may, on reasonable suspicion that any person who is found or rescued is a trafficked person, take that person into temporary custody and produce him before a Magistrate within twenty-four hours, exclusive of the time necessary for the journey to the Magistrate's Court, for the purpose of obtaining an interim protection order.
(2) The Magistrate may make an interim protection order for the person to be placed at a place of refuge for a period of fourteen days for the purpose of carrying out an investigation and enquiry under section 51.
(3) The enforcement officer shall, upon obtaining the order issued under subsection (2), surrender the trafficked person to a Protection Officer to place that trafficked person at the place of refuge specified in the order.

51.  Investigation, enquiry and Protection Order.
(1) Where an interim protection order is made under subsection 44(2), within fourteen days from the date of such order-
(a) an enforcement officer shall investigate into the circumstances of the person's case for the purpose of determining whether the person is a trafficked person under this Act; and
(b) a Protection Officer shall enquire into the background of that person.
(2) Upon completion of the investigation and enquiry under subsection (1), the enforcement officer and the Protection Officer shall prepare a report and produce the report together with the person before a Magistrate's Court for the purpose of satisfying the Magistrate that such person is a trafficked person under this Act.
(3) Where the Magistrate, having read the report produced under subsection (2), is satisfied that the person brought before him-
(a) is a trafficked person and in need of care and protection, the Magistrate may make a Protection Order-
(i) in the case of a trafficked person who is a citizen or permanent resident of Malaysia, ordering that such trafficked person be placed in a place of refuge for a period not exceeding two years from the date of the order; or
(ii) in the case of a trafficked person who is a foreign national, ordering that such trafficked person be placed in a place of refuge for a period not exceeding three months from the date of the order, and thereafter to release him to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63,
(b) is not a trafficked person, the Magistrate may-
(i) in the case of a person who is a citizen or permanent resident of Malaysia, order that person to be released; or
(ii) in the case of a person who is a foreign national, order that person to be released to an immigration officer for necessary action in accordance with the provisions of the Immigration Act 1959/63.
(4) The Magistrate may at any time, on the application of an enforcement officer or a Protection Officer, as the case may be, extend or revoke the Protection Order made under this section.
(5) Notwithstanding subsection (4), where the trafficked person is a foreign national, an extension of the Protection Order may be granted only for the purpose of completing the recording of his evidence under section 52 or for any exceptional circumstances as determined by the Magistrate.
I am concerned about the suggestion to use the Anti-Trafficking in Persons Act in this situation involving workers building Malaysia's new palace. I believe that it may have been a misreporting - for surely they meant the Malaysian Labour Laws. For foreign workers, they do not want to be merely 'rescued' and deported - they want their unpaid wages, overtime payments, and all their rights as workers.

KUALA LUMPUR: Human rights group Lawyers for Liberty, representing migrant workers at the new Istana Negara project, has lodged a police report claiming the workers were not paid by their employers and that they faced extortion from police during raids.

The report was lodged at the Brickfields police station yesterday.

Lawyer Fadiah Nadwa Fikri said the group had personally spoken to the workers and had written-and-signed confessions from them about the abuse claims.

Among the allegations by the workers were that police personnel participating in the raids had confiscated the workers’ belongings, from food to handphones.

Police raiding teams were also said to have representatives that met the workers’ representatives to negotiate a sum to release detained workers.

On Sunday, The Star frontpaged the plight of many foreign workers hired to build the RM800mil Istana Negara who claimed they were not paid three months’ wages from some project sub-contractors.

Another lawyer, Latheefa Koya, said yesterday that the authorities did not have to wait for the workers to lodge reports in order to act.

She said once the plight was highlighted, the Labour Department had the authority to enter any site to investigate under the Anti-Trafficking in Persons Act.

“We made a police report today because there has been no serious action taken by the authorities,” she said.

When asked to comment on a statement made by Human Resources Minister Datuk Dr S. Subramaniam that there was no truth in the allegations because no reports were lodged, Latheefa said the signed confessions from the migrant workers were proof that things were not right at the construction site.

Separately, Segambut MP Lim Lip Eng urged the Government to allow non-governmental organisations to conduct interviews of the foreign workers at the new Istana Negara construction site.

Lim also said the project contractor, Maya Maju Sdn Bhd, had invited him for a meeting at the site today, without the media being present.- Star, 1/7/2010, Human rights group alleges abuse of foreign workers

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