Hishammuddin, we do not believe you - release these ISA detainees now

We do not believe you - because under the ISA (and other Detention Without Trial laws), you can effectively arrest and keep in detention any person alleging this and that ..... and this is certainly against justice and human rights...

So, immediately and unconditionally release the said 3 persons now...

If any person really broke Malaysian laws, then charge them in court and allow them the right to defend themselves in a fair and open trial...and, if the court is convinced with the evidence that you have and you have managed to prove them guilty, then the court will convict and sentence them...

Malaysia already have an anti-human trafficking Act - so, what is the problem of taking action under this Act.

And, is this really a case of 'trafficking' - or was it just a case of persons assisting immigrants/asylum seekers/refugees enter Malaysia? Smuggling persons into the country is different from 'trafficking of human persons'. A smuggler is a person who illegally facilitates the entry of persons into Malaysia - people seeking the services of 'smugglers' do it of their own free will...many a times paying for this service. Trafficking of human persons on the other hand is where the person being trafficked is brought in forcibly, without consent, etc... Smuggled in persons are certainly not victims of human trafficking... and that is why we cannot lump both 'people smugglers' and 'human traffickers' together...

Three people including two foreigners were detained under the Internal Security Act (ISA) in Lahad Datu on May 24 for suspected human trafficking involving illegal immigrants.

Home Minister Hishammuddin Hussein, who confirmed this, said the trio were found to be active in smuggling illegal immigrants through land and sea routes.

However, he declined to disclose their identities.

The action was in line with the government's firm stand in tackling security threats to the country, he said after handing over appointment letters to the new Sabah Registration Department director Ismail Ahmad and Sabah Prisons Department director Suria Idris, both of whom are Sabahans, here today.

He said the arrests of the trio enabled more detailed investigations to be carried on human trafficking syndicates, particularly those operating in Sabah.

He added that the arrests were also part of the measures being taken by the government to check the inflow of illegal immigrants into Sabah.

On the new appointments, Hishammudin said he hoped it would help further improve the delivery system of the two agencies under his ministry.

"They have wide knowledge and experience on the local situation and are committed to discharge the responsibilities entrusted to them," he said, adding that with their appointments, five of nine department and agency directors under the ministry in Sabah now were locals.

He also dismissed perceptions held by some quarters that the percentage of locals employed in federal agencies in the state was very low.

Citing the departments and agencies under his watch, Hishammuddin said the majority of the staff in them were locals with the percentage between 70 and 97 percent. - Bernama - Malaysiakini, 29/5/2011, 3 held under ISA for human trafficking

MPs - Wake Up - Do not allow the Anti-Trafficking amendments to be passed..

Well, the UMNO-led BN Malaysian government is going to amend the Anti-Trafficking in Persons Act 2007 D.R.22/2010(Anti-Trafficking in Persons (Amendment) Bill 2010), and sadly, it does not correct the flaws and the inadequacies of the Act - but further complicates matters.

See earlier post:- Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

This time, it wrongly tries  to lump 'trafficking in human persons' and  the 'smuggling of persons' across the border into Malaysia.

Many persons, especially refugees, asylum seekers and undocumented migrants, use the services of 'smugglers' to get into Malaysia (and also out of Malaysia), or they smuggle themselves into the country. This is an offence against the immigration laws of the country - and  should not be unnaturally lumped into the Anti-Trafficking in Persons Act. In fact, is not an unlawful entry... an offence already under the Immigration Act? Unlawful entry  into and exit from the country, facilitating/assisting such unlawful entries  into and exits should rightly be offences under the Immigration Act only.

What is the AG's Chambers and the Malaysian Government up to? Same acts offences in 2 different Acts? Just like the possession of firearms/bullets - where the AG will have the 'power' to choose under which Act to charge. For some under the Act which has a lesser penalty.... and for others under the Act with a higher penalty. This should not be....for it is wrong.

The right of the accused to be able to cross-examine the witnesses...to challenge the witnesses in court is a fundamental right that ensures a fair trial. Currently, the Anti-Trafficking in Persons Act 2007 allows for statements, with the presence of the maker, to be adduced and received as evidence in a trial - and, not only is this wrong - but may even be worse that some of the provisions of the ESCAR (Emergency Security Cases Regulations). I hope the human rights lawyers in Parliament protested this provisions in the Act.   

I have not studied the Bill in detail - and may have further comments later on    

a bill

i n t i t u l e d

An Act to amend the Anti-Trafficking in Persons Act 2007.

[ ]

ENACTED by the Parliament of Malaysia as follows:

Short title and commencement

1. (1) This Act may be cited as the Anti-Trafficking in Persons (Amendment) Act 2010.

(2) This Act comes into operation on a date to be appointed by the Minister by notification in the Gazette.

Amendment of long title

2. The Anti-Trafficking in Persons Act 2007 [Act 670], which is referred to as the “principal Act” in this Act, is amended by substituting for the long title the following long title:

“An Act to prevent and combat trafficking in persons and smuggling of migrants and to provide for matters connected therewith.”.

Amendment of section 1

3. Subsection 1(1) of the principal Act is amended by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”.

Amendment of section 2

4. Section 2 of the principal Act is amended—

(a) in the definition of “Council”, by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(b) by inserting after the definition of “Minister” the following definition:

‘ “smuggled migrant” means a person who is the object of the act of smuggling of migrants, regardless of whether that person participated in the act of smuggling of migrants;’;

(c) by substituting for the definition of “receiving country” the following definition:

‘ “receiving country” means a country into which a trafficked person or a smuggled migrant is brought as part of an act of trafficking in persons or smuggling of migrants, as the case may be;’;

(d) by inserting after the definition of “receiving country” the following definition:

‘ “transit country” means a country from which, or into or through which, a trafficked person or a smuggled migrant, as the case may be, is brought or travels through by land, sea or air or temporarily remains in as part of an act of trafficking in persons or smuggling of migrants;’;

(e) by inserting after the definition of “officer of the Malaysian Maritime Enforcement Agency” the following definition:

‘ “Labour Officer” means a Labour Officer appointed under section 3 of the Employment Act 1955 [Act 265] or section 3 of the Labour Ordinance (Sabah Cap. 67) or section 3 of the Labour Ordinance (Sarawak Cap. 76);’;

(f) in the national language text, in the definition of “Pegawai Kebajikan Masyarakat”, by substituting for the word “Pembantu” the word “Penolong”; Anti-Trafficking in Persons (Amendment) 2010 3

(g) by substituting for the definition of ‘ “trafficking in persons” or “traffics in person” ’ the following definition:

‘ “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;’; and

(h) by inserting after the definition of “conveyance” the following definition:

‘ “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);’.

Amendment of section 3

5. Section 3 of the principal Act is amended—

(a) by inserting after the words “inside or outside Malaysia” the words “and whatever the nationality or citizenship of the offender”;

(b) in paragraph (a), by inserting after the words “receiving country” the words “or transit country”; and

(c) by substituting for paragraph (b) the following paragraph:

“(b) if the receiving country or transit country is a foreign country but the trafficking in persons or smuggling of migrants starts in Malaysia or transits Malaysia.”.

Amendment of section 5

6. Subsection 5(1) of the principal Act is amended by inserting after the words “trafficking in persons” the words “and smuggling of migrants”.

Amendment of Part II

7. Part IIof the principal Act is amended in the heading by inserting after the words “ANTI-TRAFFICKING IN PERSONS” the words “AND ANTI-SMUGGLING OF MIGRANTS”.

Amendment of section 6

8. Section 6 of the principal Act is amended—

(a) in the shoulder note, by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(b) in subsection (1), by inserting after the words “Anti-Trafficking in Persons” the words “and Anti-Smuggling of Migrants”;

(c) in subsection (2)—

(i) by deleting the word “and” appearing at the end of paragraph (m);

(ii) by substituting for the full stop at the end of paragraph (n) the words “; and”; and

(iii) by inserting after paragraph (n) the following paragraph:

“(o) not more than two persons from non-governmental organizations or other relevant organizations with appropriate experience, knowledge and expertise on problems and issues relating to smuggling of migrants, to be appointed by the Minister.”; Anti-Trafficking in Persons (Amendment) 2010 5

(d) in subsection (3), by substituting for the words “paragraph (2)(n)” the words “paragraphs (2)(n) and (o)”; and

(e) in subsection (4), by substituting for the words “paragraph (2)(n)” the words “paragraphs (2)(n) and (o)”.

Amendment of section 7

9. The principal Act is amended by substituting for section 7 the following section:

“Functions and powers of the Council

7. (1) The Council shall perform the following functions:

(a) coordinating the implementation of this Act;

(b) formulating policies and programmes to prevent and combat trafficking in persons and smuggling of migrants;

(c) formulating protective programmes for trafficked persons;

(d) initiating education programmes to increase public awareness of the causes and consequences of the act of trafficking in persons and smuggling of migrants;

(e) monitoring the immigration and emigration patterns in Malaysia for evidence of trafficking in persons and smuggling of migrants and to secure the prompt response of the relevant government agencies and non-governmental organizations to problems on trafficking in persons and smuggling of migrants brought to its attention;

(f) advising the Government on the issues of trafficking in persons and smuggling of migrants including developments at the international level against trafficking in persons and smuggling of migrants;

(g) making recommendations to the Minister on all aspects of the prevention and combating of trafficking in persons and smuggling of migrants;

(h) coordinating the formulation of policies and monitoring the implementation of such policies on issues of trafficking in persons and smuggling of migrants with relevant government agencies and non-governmental organizations;

(i) cooperating and coordinating with governments and international organizations on trafficking in persons and smuggling of migrants;

(j) collecting and collating data and information, and authorising research, in relation to the prevention and combating of trafficking in persons and smuggling of migrants; and

(k) performing any other functions for the proper implementation of this Act.

(2) The Council shall have all such powers as may be necessary for, or in connection with, or reasonably incidental to, the performance of its functions.”.

Amendment of section 15

10. Section 15 of the principal Act is amended by substituting for the words “fifty thousand ringgit but not exceeding five hundred thousand ringgit” the words “five hundred thousand ringgit but not exceeding one million ringgit and shall also be liable to forfeiture of the profits from the offence”.

New section 15a

11. The principal Act is amended by inserting after section 15 the following section:

“Offence in relation to trafficked person in transit

15a. Any person who brings in transit a trafficked person through Malaysia by land, sea or air, or otherwise arranges or facilitates such act commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding seven years, and shall also be liable to fine.”. Anti-Trafficking in Persons (Amendment) 2010

New section 17a

12. The principal Act is amended by inserting after section 17 the following section:

 “Movement or conveyance of trafficked person irrelevant

17a. In a prosecution for any offence under this Part, the prosecution need not prove the movement or conveyance of the trafficked person but that the trafficked person was subject to exploitation.”.

Amendment of section 23

13. Section 23 of the principal Act is amended—

(a) in subsection (1), by inserting after the words “receiving country” the words “or transit country”;

(b) by substituting for subsection (2) the following subsection:

“(2) Any owner, operator or master of any conveyance mentioned in subsection (1) who—

(a) knowingly permits or has reasonable grounds to believe that such conveyance is used for purposes of bringing a person into a receiving country or transit country without travel documents required for the lawful entry of that person into the receiving country or transit country; or

(b) knowingly permits or has reasonable grounds to believe that such conveyance is being used for purposes of committing any offence of trafficking in persons,

commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both.”; (c) in subsection (3), by inserting after the words “receiving country”, wherever they appear, the words “or transit country”;

(d) in subsection (4), by inserting after the words “receiving country” the words “or transit country”; and

(e) by inserting after subsection (4) the following subsection:

“(5) Where there is no prosecution or conviction under this section, the owner, operator or master of the conveyance used shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the trafficked person and his removal from Malaysia and such expenses shall be recoverable as a debt due to the Government.”.

Amendment of section 25

14. Section 25 of the principal Act is amended by inserting after the words “receiving country”, wherever they appear, the words “or transit country”.

New Part IIIa

15. The principal Act is amended by inserting after Part IIIthe following Part:

“Part IIIa

SMUGGLING OF MIGRANTS

Offence of smuggling of migrants

26a. Any person who carries out smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both. Anti-Trafficking in Persons (Amendment) 2010

Aggravated offence of smuggling of migrants

26b. Any person who commits an offence of smuggling of migrants where any of the following applies:

(a) in committing the offence, the person intends that the smuggled migrant will be exploited after entry into the receiving country or transit country whether by the person himself or by another person;

(b) in committing the offence, the person subjects the smuggled migrant to cruel, inhuman or degrading treatment; or

(c) in committing the offence, the person’s conduct gives rise to a risk of death or serious harm to the smuggled migrant,

shall, on conviction, be punished with imprisonment for a term not less than three years but not exceeding twenty years, and shall also be liable to fine, or to both.

Offence in relation to smuggled migrant in transit

26c. Any person who brings in transit a smuggled migrant through Malaysia by land, sea or air or otherwise arranges or facilitates such act commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding seven years, and shall also be liable to fine, or to both.

Offence of profiting from the offence of smuggling of migrants

26d. Any person who profits from the offence of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than five hundred thousand ringgit but not exceeding one million ringgit, or to both, and shall also be liable to forfeiture of the profits from the offence.

Fraudulent travel or identity documents

26e. Any person who makes, obtains, gives, sells or possesses a fraudulent travel or identity document for the purpose of facilitating an act of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term of not less than seven years but not exceeding fifteen years, and shall also be liable to a fine of not less than fifty thousand ringgit but not exceeding five hundred thousand ringgit, or to both.

Providing facilities in support of smuggling of migrants

26f. Any person, being—

(a) the owner, occupier, lessee or person in charge of any premises, room or place, knowingly permits a meeting of persons to be held in that premises, room or place; or

(b) the owner, lessee or person in charge of any equipment or facility that allows for recording, conferences or meetings via technology, knowingly permits that equipment or facility to be used,

for the purpose of committing an offence under this Part, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

Providing services for purposes of smuggling of migrants

26g. (1) Any person who, directly or indirectly, provides or makes available financial services or facilities—

(a) intending that the services or facilities be used, or knowing or having reasonable grounds to believe that the services or facilities will be used, in whole or in part, for the purpose of committing or facilitating the commission of an act of smuggling of migrants, or for the purpose of benefiting any person who is committing or facilitating the commission of an act of smuggling of migrants; or Anti-Trafficking in Persons (Amendment) 2010

(b) knowing or having reasonable grounds to believe that, in whole or in part, the services or facilities will be used by or will benefit any person involved in an act of smuggling of migrants,

commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

(2) For the purpose of subsection (1), “financial services or facilities” include the services and facilities offered by lawyers or accountants acting as nominees or agents for their clients.

Concealing or harbouring smuggled migrants and migrant smugglers

26h. (1) Any person who conceals or harbours, or prevents, hinders or interferes with the arrest of any person knowing or having reason to believe that such person is—

(a) a smuggled migrant; or

(b) a person who has committed or is planning or is likely to commit an act of smuggling of migrants,

commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding ten years, and shall also be liable to fine, or to both.

(2) In this section, “harbour” includes supplying a person with shelter, food, drink, money or clothes, arms, ammunition or means of conveyance, or assisting a person in any way to evade apprehension.

Supporting offence of smuggling of migrants

26i. (1) Any person who provides material support or resources to another person and the support and resources aid the receiver or any other person to engage in conduct constituting the offence of smuggling of migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding fifteen years, and shall also be liable to fine, or to both.

(2) For the avoidance of doubt, a person commits an offence under subsection (1) even if the offence of smuggling of migrants is not committed.

Offence of conveyance of smuggled migrants

26j. Any person being the owner, operator or master of any conveyance who engages in the conveyance of smuggled migrants commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding five years and shall also be liable to a fine not exceeding two hundred and fifty thousand ringgit, or to both.

Obligation of owner, etc. of conveyance

26k. (1) Any person being the owner, operator or master of any conveyance that engages in the conveyance of goods or people for commercial gain shall ensure that every person travelling on board is in possession of travel documents for the lawful entry of that person into the receiving country or transit country and if not, shall refuse to convey such person.

(2) Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years, or to both.

(3) In any proceeding for an offence under this section, it shall be a defence for such owner, operator or master to prove that—

(a) he has reasonable grounds to believe that the travel documents of the person referred to in subsection (1) are travel documents required for lawful entry of that person into the receiving country or transit country;

(b) the person referred to in subsection (1) possessed travel documents required for lawful entry to the receiving country or transit country when that person boarded, or last boarded, the conveyance to travel to the receiving country or transit country; or Anti-Trafficking in Persons (Amendment) 2010

(c) the entry of the person referred to in subsection (1) into the receiving country or transit country occurred only because of illness or injury to that person, stress of weather or any other circumstances beyond the control of such owner, operator or master.

(4) Any person convicted of an offence under this section shall be liable to pay the costs of the smuggled migrant’s detention in, and removal from, the receiving country or transit country.

(5) Where there is no prosecution or conviction under this section, the owner, operator or master of the conveyance used shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the smuggled migrant and his removal from Malaysia and such expenses shall be recoverable as a debt due to the Government.”.

Amendment of section 27

16. Subsection 27(1) of the principal Act is amended—

(a) by deleting the word “and” appearing at the end of paragraph (c);

(b) by substituting for the full stop at the end of paragraph (d) the words “; and”; and

(c) by inserting after paragraph (d) the following paragraph:

“(e) any Labour Officer.”.

Amendment of section 35

17. Section 35 of the principal Act is amended by substituting for subsection (2) the following subsection:

“(2) When any witness is called for the prosecution or for the defence, other than the accused, and there is a basis for impeaching the credit of that witness, the Court shall, subject to the provisions of the Evidence Act 1950 [Act 56], refer to any statement made by that witness to an enforcement officer in the course of an investigation under this Act and may then use that statement to impeach the credit of the witness.”.

Amendment of Part V

18. Part V of the principal Act is amended by inserting before section 42 the following section:

“Non-application

41a. This Part shall not apply to a smuggled migrant unless such smuggled migrant is a trafficked person.”.

Amendment of section 44

19. Subsection 44(2) of the principal Act is amended by substituting for the word “may” the word “shall”.

Amendment of section 51

20. Section 51 of the principal Act is amended—

(a) in subsection (2), by inserting after the words “the Protection Officer shall” the word “jointly”; and

(b) by inserting after subsection (5) the following subsection:

“(6) Nothing in this section shall prejudice any prosecution of an act of trafficking in persons under this Act.”.

Amendment of section 52

21. Section 52 of the principal Act is amended—

(a) in subsection (1)—

(i) by substituting for the words “an enforcement officer” the words “the Public Prosecutor”; and

(ii) by substituting for the words “Magistrate’s Court” the words “Sessions Court before which the criminal prosecution has been instituted”; and

(b) in subsections (2), (3) and (5), by substituting for the word “Magistrate” the words “Sessions Court Judge”. Anti-Trafficking in Persons (Amendment) 2010

Amendment of section 58

22. Section 58 of the principal Act is amended by inserting after the words “trafficked person”, wherever they appear except for in paragraph (1)(b), the words “or smuggled migrant”.

New section 61a

23. The principal Act is amended by inserting after section 61 the following section:

“Admissibility of deposition of trafficked person or smuggled migrant who cannot be found

61a. (1) Notwithstanding anything contained in this Act and any written law to the contrary, where in any proceeding for an offence under this Act a testimony of any person in respect of whom an order of removal from Malaysia has been made by the Director General under section 32 or 33 or subsection 56(2) of the Immigration Act 1959/63 is required by the court, there shall be admissible in evidence before that court any deposition relating to the subject matter of that proceeding made by that person—

(a) in Malaysia before a Sessions Court Judge or a Magistrate in the presence or absence of the person charged with the offence; or

(b) outside Malaysia before a consular officer or a judicial officer of a foreign country in the presence or absence of the person charged with the offence,

and any such deposition shall, without further proof, be admitted as prima facie evidence of any fact stated in the deposition.

(2) It shall not be necessary for any party in any proceeding to prove the signature or official character of the Sessions Court Judge, Magistrate, consular officer or judicial officer before whom the deposition under subsection (1) was made.

(3) For the purposes of this section, a reference to—

(a) a “deposition” includes any written statement made upon oath; and

(b) an “oath” includes an affirmation or declaration in the case of persons allowed by law to affirm or declare instead of swear.

(4) Nothing in this section shall prejudice the admission as evidence of any other depositions.”.

Amendment of section 63

24. Section 63 of the principal Act is amended—

(a) by substituting for the shoulder note “General penalty” the shoulder note “General and enhanced penalties”;

(b) by renumbering the section as subsection (1) of that section; and

(c) by inserting after subsection (1) the following subsections:

“ (2) Where an offence under this Act is committed by a body corporate, the body corporate shall, on conviction—

(a) where a fine is specified under the relevant section, be liable to a fine of not less than three times the maximum fine specified; and

(b) where no fine is specified—

(i) in relation to sections 15a and 26c, shall be liable to a minimum fine of five million ringgit; and

(ii) in any other case, shall be liable to a minimum fine of one million ringgit. Anti-Trafficking in Persons (Amendment) 2010

(3) Where, after having been convicted of any offence under this Act, a person subsequently commits another offence under this Act, he shall, on conviction, for that subsequent offence, be punished with an enhanced penalty which shall not be less than the penalty that had been imposed on him for the earlier offence.

(4) Where an offence under this Act has been committed by a person who has been proved to the court to have acted jointly with one or more persons in the commission of the offence, the person shall, on conviction, be punished with an enhanced penalty which shall be a more severe penalty than that which would have been imposed on him if he had acted individually.”.

Amendment of section 66

25. Subsection 66(2) of the principal Act is amended by inserting after paragraph (f) the following paragraph:

“ (fa) to provide for the payment and recovery of any expenses incurred by the Government in connection with the detention, maintenance, medical treatment and removal from Malaysia of any person under this Act;”.

Savings

26. All references to the Anti-Trafficking in Persons Act 2007 and the Council for Anti-Trafficking in Persons in any written law or document shall, on the coming into operation of this Act, be construed as references to the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 and the Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants respectively.

EXPLANATORY STATEMENT

This Bill seeks to amend the Anti-Trafficking in Persons Act 2007 (“Act 670”).

2. Clause 1 contains the short title and provision on the commencement of the proposed Act.

3. Clause 2 seeks to amend the long title of Act 670 to widen the scope of the Act to include preventing and combating the smuggling of migrants. The amendment is necessary to deal with the current influx of illegal migrants from conflict countries who are seeking better life either in Malaysia or third countries and who, in particular, are using Malaysia as a transit point while they await their onward journey to possible countries. These migrants are distinct from trafficked persons in that they normally seek and finance the illegal migration themselves and the only danger of exploitation faced is cruel or inhuman or degrading treatment or being endangered in the course of their journey. Further, under international law, Malaysia is under a humanitarian obligation to ensure the safety of such migrants while they are on Malaysian territory. The influx of these illegal migrants also posed a security threat to Malaysia as their methods of entry and exit are generally illegal.

4. Clause 3 seeks to amend section 1 of Act 670 to amend its short title. The amendment is necessary to reflect the expanded scope of the Act in relation to the prevention and combating of smuggling of migrants.

5. Clause 4 seeks to amend section 2 of Act 670. The amendment seeks to substitute certain definitions used in Act 670 and to introduce new definitions in consequence of the expansion of Act 670 to cover the smuggling of migrants. Among the substantive definitions that have been amended or introduced are “trafficking of persons”, “smuggled migrants”, “smuggling of migrants” and “transit country”.

6. Clause 8 seeks to amend section 6 of Act 670 to change the name of the Council for Anti-Trafficking in Persons to “Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants” in consequence of the expanded scope of the Act and its functions. The membership of the Council will be expanded to include not more than two persons from non-governmental organizations or other relevant organizations with appropriate experience, knowledge and expertise on problems and issues relating to smuggling of migrants.

7. Clause 10 seeks to amend section 15 of Act 670 to increase the fine imposed upon a person who profits from the exploitation of a trafficked person from not less than fifty thousand ringgit but not exceeding five hundred thousand ringgit to a fine of not less than five hundred thousand ringgit but not exceeding one million ringgit, and the convicted offender shall also be liable to have any profits obtained from the offence forfeited.

8. Clause 11 seeks to introduce a new section, namely section 15a, into Act 670 to provide for a new offence. This amendment seeks to provide that a person who brings in transit a trafficked person through Malaysia by land, sea or air, or otherwise arranges or facilitates such act commits an offence. Anti-Trafficking in Persons (Amendment) 2010

 9. Clause 12 seeks to introduce a new section, namely section 17a, into Act 670 to provide that the prosecution need not prove the movement or conveyance of the trafficked person to prove that the offence of trafficking in person had occurred. The prosecution need only to prove that the trafficked person was subject to exploitation.

10. Clause 13 seeks to amend section 23 of Act 670 to provide that the owner, operator or master of a conveyance used for the trafficking in persons shall be jointly and severally liable for all expenses incurred by the Government in respect of the detention and maintenance of the trafficked person and his removal from Malaysia. The expenses shall be recoverable as a debt due to the Government.

11. Clause 15 seeks to introduce a new part, namely Part IIIa, into Act 670 to deal with the smuggling of migrants. This new Part IIIa contains 10 new sections, namely sections 26a to 26j. The new Part IIIa addresses concerns that have arisen about the smuggling of migrants as a criminal activity distinct from legal or illegal activity on the part of the migrants themselves. The sections specifically criminalize the exploitation of migrants and the generation of illicit profits from the procurement of illegal entry or illegal residence of migrants.

12. Clause 16 seeks to amend section 27 of Act 670 to include a Labour Officer as an enforcement officer for the purpose of the Act.

13. Clause 17 seeks to amend section 35 of Act 670 to provide for the admissibility of statement must be in accordance with the Evidence Act 1950.

14. Clause 18 seeks to introduce a new section, namely section 41a, into Part V of Act 670 to clarify that a smuggled migrant is only entitled to be protected under that Part if he was a trafficked person.

15. Clause 19 seeks to amend section 44 of Act 670 to make it mandatory for the Magistrate to make an interim protection order for a person who is found or rescued and reasonably suspected to be a trafficked person to be placed at a place of refuge for a period of fourteen days for the purpose of investigation.

16. Clause 20 seeks to amend section 51 of Act 670 to make it clear that the enforcement officer and the Protection Officer shall jointly prepare a report to the Magistrate for the purpose of satisfying the Magistrate as to whether the person against him an interim protection order has been made is a trafficked person. The amendment also seeks to provide that the decision of the Magistrate shall not prejudice any prosecution instituted against the person.

17. Clause 23 seeks to introduce a new section, namely section 61a, into Act 670 to provide for the

admissibility of a deposition made by a trafficked person or a smuggled migrant who cannot be found during a proceeding in court. The deposition must have been made upon an oath before a Sessions Court Judge or a Magistrate if in Malaysia or a consular officer or a judicial officer of outside Malaysia.

18. Clause 24 seeks to amend section 63 of Act 670 to provide for general and enhanced penalties. The amendment makes provision for penalties that are to be imposed upon a body corporate for the offences committed under the Act, as well as enhanced penalties where the offender is a repeat offender and where the offender acts jointly with one or more persons to commit the offence.

19. Clause 26 contains a saving provision in consequence of the amendment to the short title of Act 670 and the change of name of the Council.

20. Other amendments not specifically mentioned in this Statement are minor or consequential in nature.

FINANCIAL IMPLICATIONS

This Bill will not involve the Government in any extra financial expenditure.

[PN(U²)2742]

The US's (not UN's) Trafficking in Persons 'bad' Report that unnecessarily bothers Malaysia

The US State Department, not the United Nations, placed Malaysia at 'Tier 3' ...and then in 2010, elevated us to 'Tier 2' - and the Malaysian government was so happy.

Why do we even bother with the US's list? I wonder.... Anyway, a perusal of the US State Department's Trafficking in Persons Report 2010 on Malaysia would show that there are many errors and inaccuracies. For example, there is no such thing as a 'Guest Relation Officers' visa in Malaysia. [If you are a single women (or a group of single women) in a pub, bar..in Malaysia..you may likely be arrested, and the next day the media may,etc call you 'prostitutes' . The official reasons for arrest will be a violation of the conditions of the social visit pass(i.e. the tourist visa)... and by the time investigation is completed, the visa may have expired - and you get deported. For a nation, where there are about 60% Muslims, this really is wrong for such arrests, allegations, ... should never have been made without actual proof of soliciting...The victims are just glad to get back top their country...and so, the Malaysian authorities get away with it. Go see the papers, and you will come across such reports...do not just take it to be the truth just because it is reported in the press (or the police says so)]

There are also no indication of the sources of information, let alone any real data, upon which 'conclusions' have been made.

For example, let's consider the statement, "...The majority of trafficking victims are foreign workers who migrate willingly to Malaysia from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan, and Vietnam...". 

Now, the only data about trafficking victims was found later in this report that stated that "139 women and children were certified as victims". I wonder how many of these were foreign workers? How many migrated 'willingly"?

If the US is serious about labelling other countries, one would expect a more comprehensive and accurate report. I hope the UMNO-led BN Malaysian government has done the needful to demand a correction of all inaccuracies of this report.

Frankly, the US has been getting away being the 'Big Bully", and this has to stop. War on Terror....now, Trafficking in Human Persons...and sadly, Malaysia under Najib (and Abdullah Ahmad Badawi) has just become too weak to stand up against this bully.

In a knee-jerk response to US Pressure, we came up with an Anti-Trafficking Act - which is more likely to bring greater injustice to workers and other persons. See earlier posting: Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

 

The Malaysian government has allegedly made available pamphlets in 9 languages about trafficking that is being distributed by the Immigration Department - better if it was about worker rights and other rights in Malaysia, and information about what to do in the case of rights violations - i.e. procedure of lodging complaints at the Labour Departments, Industrial Relations Department, Police, Human Rights Commission, Public Complaints Bureau, etc.. Now, we have so many migrant workers from so many countries but there is no material in migrant languages in government departments, hospitals, etc..

The report do raise some interesting points ... but at the end of it, we ask again why are we so bothered about a US State Department Report - which is not a UN Report. Maybe, the US should also come up with a report on Worker Rights and Protection, and I wonder what 'tier' Malaysia would be placed on... and that will surely get Najib and gang to be more concerned about the rights and welfare of workers in  Malaysia...

MALAYSIA (Tier 2 Watch List)

Malaysia is a destination, and to a lesser extent, a source and transit country for women and children subjected to trafficking in persons, specifically conditions of forced prostitution and for men, women, and children who are in conditions of forced labor. The majority of trafficking victims are foreign workers who migrate willingly to Malaysia from Indonesia, Nepal, India, Thailand, China, the Philippines, Burma, Cambodia, Bangladesh, Pakistan, and Vietnam in search of greater economic opportunities, some of whom subsequently encounter forced labor or debt bondage at the hands of their employers, employment agents, or informal labor recruiters. While many of Malaysia’s trafficking offenders are individual business people, large organized crime syndicates are also behind some of the trafficking of foreigners in Malaysia. A significant number of young women are recruited for work in Malaysian restaurants and hotels, some of whom migrate through the use of “Guest Relations Officer” visas, but subsequently are coerced into Malaysia’s commercial sex trade. Many Malaysian labor outsourcing companies apparently recruited excess workers, who were then often subject to conditions of forced labor. Some Malaysian citizens are trafficked internally and abroad to Singapore, Hong Kong, France, and the United Kingdom for commercial sexual exploitation. There were approximately two million documented migrant workers in Malaysia in 2009, and an additional estimated 1.9 million who were undocumented. Many migrant workers in plantations, construction sites, textile factories, and employed as domestic workers throughout Malaysia experienced restrictions on movement, deceit and fraud in wages, passport confiscation, or debt bondage, which are practices indicative of trafficking. Some Malaysian employers reportedly did not pay their foreign domestic workers three to six months’ wages in order to recoup recruitment agency charges, making them vulnerable to trafficking. Refugees were particularly vulnerable to trafficking, and Malaysians from rural communities and indigenous groups were also vulnerable. The People’s Volunteer Corps (RELA) continued to conduct raids targeting illegal migrant communities and detained refugees, asylum seekers, and trafficking victims along with allegedly illegal migrants. Some trafficking victims were locked up in warehouses or brothels. The Indonesian and Malaysian governments have not amended or replaced a 2006 Memorandum of Understanding (MOU) covering the employment of Indonesian domestic workers in Malaysia, which authorizes Malaysian employers to confiscate and hold the passports of domestic employees.

The Government of Malaysia does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. Because the assessment that the government had made significant efforts is based in part on its commitments to undertake actions over the coming year – notably greater implementation of Malaysia’s anti-trafficking law against labor trafficking – Malaysia is placed on Tier 2 Watch List. The Malaysian government has shown a greater commitment to address human trafficking that is expected to lead to: increased investigations and prosecutions of labor trafficking offenses and identification of labor trafficking victims; increasing efforts to prosecute trafficking-related corruption by government officials; and greater collaboration with NGOs and international organizations to improve victim services in government shelters. During the reporting period, senior government officials, including the Prime Minister, publicly acknowledged Malaysia’s human trafficking problem, the government increased its investigations of trafficking cases and filed an increased number of criminal charges against traffickers, significantly expanded training of officials on the 2007 anti-trafficking law, conducted a public awareness campaign on human trafficking, opened three more shelters for trafficking victims, and launched a five-year national action plan on trafficking. Nevertheless, these early efforts will require continued attention, as there are many serious concerns remaining regarding trafficking in Malaysia, including the detention of trafficking victims in government facilities.

Recommendations for Malaysia: Build on initial law enforcement actions under the Trafficking in Persons Act, particularly relating to cases of labor trafficking; apply stringent criminal penalties to those involved in fraudulent labor recruitment or exploitation of forced labor; increase efforts to prosecute and convict public officials who profit from or are involved in trafficking, or who exploit victims; develop and implement procedures to identify labor trafficking victims among vulnerable groups such as migrant workers and refer them to available protection services; ensure that victims of trafficking are not threatened or otherwise punished for crimes committed as a result of being trafficked; re-negotiate MOUs with source countries to incorporate victim protection and revoke passport or travel document confiscation; increase cooperation with NGOs to improve victim protection efforts, including in shelters for trafficking victims; continue to expand the training of officials on the effective handling of sex and labor trafficking cases, with a particular emphasis on victim protection; and continue and expand a comprehensive and visible anti-trafficking awareness campaign to encompass both labor and sex trafficking.

Prosecution

The Government of Malaysia made some progress in law enforcement efforts against sex trafficking during the reporting period, and limited progress in prosecuting and convicting offenders of labor trafficking. Malaysian law prohibits all forms of human trafficking through its 2007 anti-trafficking law, which prescribes penalties that are commensurate with those of other serious offenses, such as rape. During the reporting period, the government convicted three sex trafficking offenders and reported initiating 180 trafficking-related investigations and filing 123 charges against 69 individuals, though it is unclear how many of these cases were for actual trafficking. In January 2010, authorities identified their first labor trafficking case in the fisheries industry when the Malaysian Maritime Enforcement Agency intercepted Thai fishing boats off the coast of Sarawak and arrested five Thai traffickers; the case remains pending. While NGOs reported several potential labor trafficking cases to the government, authorities did not report any related arrests or investigations. Authorities initiated a review of the licenses of the 277 companies that are authorized to act as labor recruiters in Malaysia. The government did not report any criminal prosecutions of employers who subjected workers to conditions of forced labor or labor recruiters who used deceptive practices and debt bondage to compel migrant workers into involuntary servitude. Despite a public statement by a senior official highlighting the right of workers to hold their own passports, the government continued to allow for the confiscation of passports by employers of migrant workers, and did not prosecute any employers who confiscated passports or travel documents of migrant workers or confined them to the workplace. In September 2009, the Home Minister announced that a new MOU being negotiated between Malaysia and Indonesia would not allow confiscation of passports of migrant workers, but the 2006 MOU authorizing such confiscation has not yet been amended or replaced. Authorities did not take criminal action against Peoples Volunteer Corps (RELA) volunteers who physically threatened and abused migrant workers and extorted money from them, despite continued reports of these abuses. In response to credible reports of government officials’ direct involvement in a human trafficking network along the Malaysia-Thailand border outlined in a Senate Foreign Relations Committee Report, five immigration officials were arrested for alleged involvement in a trafficking ring that took Burmese migrants to Thailand for sale to trafficking syndicates. However, officials have only lodged criminal charges under the Anti-Trafficking Act against one of the officers and the case against him is still pending. Some observers report that corruption plays a role in the trafficking of foreign migrant workers, particularly with regard to officials’ authorizing excess recruitment by Malaysian outsourcing companies, despite assurances from officials that practice had been reduced by regulations implemented in July 2009 that require outsourcing companies to demonstrate their need for each worker recruited. Reports also indicate that collusion between police and trafficking offenders sometimes leads to offenders escaping arrest and punishment. Nevertheless, there were no officials convicted of trafficking-related complicity during the reporting period.

Protection

The government made minimal progress in protecting victims of trafficking during the reporting period. Efforts to identify and protect both sex and labor trafficking victims remained inadequate overall. The government did not report the identification of any Malaysian victims of trafficking. In January, officials rescued and identified 16 male forced labor victims from four deep-sea trawlers off the coast of Sarawak – the first trafficking victims in the fisheries industry identified by the government. The Ministry for Women, Family, and Community Development continued to run two trafficking “shelters” for women and children and opened a third in July 2009, which detained suspected and confirmed foreign sex trafficking victims involuntarily for 90 days until they were deported to their home countries, per Malaysian law. During the reporting period, the government also opened its first two shelters designed to house male victims of trafficking, although these shelters also detained victims involuntarily until they were deported. The government’s policy of detaining trafficking victims against their will provided a disincentive for victims and their advocates from bringing cases to the government’s attention.

During the reporting period, 139 women and children were certified as victims and detained in the shelters. An additional 232 individuals were given initial protective orders, but were ultimately determined by the government to not be victims of trafficking and were deported, though officials acknowledge that some of these may have been trafficking victims who were reluctant to cooperate with law enforcement proceedings. During the year, the government reportedly made some improvements in its screening to identify individuals possessing UNHCR cards or possessing traits of trafficking victims in order to separate them from the illegal migrant populations. The government continued to use RELA volunteers in indiscriminate raids to identify illegal migrants, some of whom were reportedly trafficking victims. Several foreign embassies reported that they were sometimes not informed by Malaysian authorities of the presence of their nationals in trafficking shelters, and at times, authorities would deny these diplomatic missions access to their citizens once their presence was known. Government shelters resembled immigration detention centers, by denying victims basic freedoms, and these facilities did not employ medical officers, trained psychologists, or trained victim counselors. Some victims were locked in rooms within the shelters.

While NGO trafficking shelters provide resources that government shelters do not, the government does not provide any financial assistance to NGOs, and requires all identified victims to reside in its own shelters. The anti-trafficking law provides immunity to trafficking victims for immigration offenses such as illegal entry, unlawful presence, and possession of false travel documents, but victims continue to be detained and deported, as they would be if they were arrested for illegal immigration. Malaysian law does not provide immunity for criminal acts committed as a result of being trafficked. In January 2010, a 14-year-old Indonesian girl working as a domestic worker in Malaysia was identified by authorities as a trafficking victim. Authorities prosecuted the girl for theft from her employer, and did not prosecute the girl’s employer for violating child labor laws. The government issued guidelines and provided training on the identification and processing of suspected trafficking victims, but did not develop or implement formal procedures to proactively identify victims of labor trafficking. The government treated victims of trafficking as illegal aliens and turned them over to immigration authorities for deportation after they provided evidence to prosecutors. Victims are required by law to assist in the prosecution of trafficking offenders, but the lack of victim protection or any incentives for victim assistance in investigations and prosecutions remained a significant impediment to successful prosecutions. Aside from a standard 90-day stay in one of its shelters, the government did not provide other legal alternatives to the removal of victims to countries where they may face hardship or retribution. Although victims may file a civil suit against exploiters, their lack of any option to legally work during the consideration of their suit discouraged such attempts. Some foreign governments expressed concern about the lack of legal protections in place for foreign workers in Malaysia, particularly those subjected to involuntary servitude. Some unidentified victims, including children, were routinely processed as illegal migrants and held in prisons or immigration detention centers prior to deportation.

Prevention

Malaysia made some efforts to prevent trafficking in persons over the last year. The government conducted numerous anti-trafficking training events for Malaysian police, immigration, prosecutors, labor department officials, and Women’s ministry officials, and began to partner with NGOs, international organizations, and foreign governments on such trainings. In November 2009, the government launched an anti-trafficking public awareness campaign that included advertisements in print media, on the radio, and on television, including television appearances by senior government officials to discuss human trafficking. In March 2010, the government launched a five-year action plan to combat trafficking. The government began to use its “999” emergency number as a trafficking hotline where calls are routed to the Malaysian Police, though calls can only be taken in Malay and English. The Women’s Ministry produced pamphlets to potential trafficking victims in nine languages, which the Immigration Department began to distribute. The Indonesian and Malaysian governments have yet to amend or replace a 2006 Memorandum of Understanding (MOU) covering the employment of Indonesian domestic workers in Malaysia, which authorizes Malaysian employers to confiscate and hold the passports of domestic employees, though negotiations to do so continued through the reporting period.

The government forged partnerships with airlines during the year, which began announcing a statement regarding the country’s trafficking laws and punishments on some arriving flights. The government did not take measures to reduce the demand for forced labor or commercial sex acts. The government provided anti-trafficking training to troops preparing to deploy to international peacekeeping missions. On February 26, 2009, Malaysia became a party to the 2000 UN TIP Protocol with reservations. - US  Department of State's  Trafficking In Persons Report 2010