Human trafficking: Raise transparency to ensure effective prosecution, Irene tells govt

For the third consecutive year, Malaysia remained on “Tier 2” of the U.S. Trafficking In Persons Watchlist, as published in the report released by the U.S State Department on June 19th 2012 [“U.S. TIP Report”].

The tier rankings are established upon an assessment of a country’s actions to prevent trafficking in persons, to prosecute traffickers and to protect survivors of trafficking, through a combination of legislative acts, collaboration with civil society, commitment to channel funding to combat human trafficking, and undertaking other proactive measures to identify and protect victims of trafficking.

This ranking earned by Malaysia reflects poor governance, an unwillingness to building genuine and collaborative partnerships with civil society and a lack of political will to collectively, systematically and holistically combat modern day slavery and human trafficking.

Poor rates of prosecution

One of the key areas of concern noted in the US TIP Report was the poor rates of prosecution, an issue that has been raised repeatedly by Tenaganita. According to the report, police and immigration officials investigated 97 suspected trafficking cases during 2011, 45 of which were labor trafficking cases; they initiated 16 prosecutions, 13 of which involved sex trafficking and three of which involved forced labor.

The TIP report said that “a total of 231 prosecutions, initiated in previous years, remained ongoing at the close of the reporting period. The share of initiated prosecutions that resulted in acquittals continued to remain high, in part the result of a lack of incentives for victims to participate in investigations and prosecution”.

The Anti-Trafficking in Persons Act (2007) in its implementation is not victim centred. Trafficking in persons is addressed as a crime and thus the framework for investigations is purely focused on the criminal aspects of the case, while the trafficked survivor’s rights and needs are given little priority. Trafficked survivors, for example, are still denied the right to work in Malaysia while their cases are ongoing (*there have been several exceptions to this, although it is unclear why these exceptions were made for selected cases only).

Cases drag on for lengthy periods of time, often for reasons unbeknownst to the survivor, who in the meantime has to remain in the shelter, freedom of movement [among other freedoms] denied. Furthermore, there isn’t a framework for reparations under the ATIP Act. For the survivor, the trauma from being in a trafficked state is exacerbated while remaining in this state of limbo. Many therefore decide to return home as quickly as possible, as this is seen as the best solution for them. Proposals by NGOs such as Tenaganita to the Malaysian government to assist in ensuring a more survivor-centred and rights-driven approach to combating trafficking seem to be ignored. Access to government shelters also remains non-existent for NGOs, which means that NGO case workers are unable to continue meeting and supporting their clients. Tenaganita therefore has only referred cases of sex-trafficking to government-run shelters (primarily because the cases may not be investigated under the ATIP Act otherwise). Worryingly, once these referrals are made, we no longer know what happens to the survivors. In countries where NGOs are allowed access, survivors’ needs and rights are better addressed, and prosecution rates are much greater. Why then is there this resistance from the State to have an open and honest partnership with NGOs?

Questions have also been raised regarding prosecutors ability to handle cases of trafficking. The recent acquittal on the basis of ‘lack of evidence’ and ‘contradictions in witness statements’ of the GSS Agency employers who were charged under the ATIP Act for trafficking five Indian nationals goes to show the weaknesses in the system especially by the prosecution. Preparations of the witnesses in this case was apparently limited, thereby hindering effective prosecution. It was obvious to civil society members who had been managing the GSS Agency case that it had all the elements of labor trafficking. Therefore, failure to obtain a conviction here is cause for great concern. Prosecutors do not seem to have increased their competence in successfully prosecuting traffickers. This is also an example of how the lack of collaboration between NGOs and prosecutors leads to ineffective means of combating trafficking.

The prosecution of cases and the holding of traffickers accountable has also weakened tremendously with the use of the draconian Internal Security Act (ISA) to arrest and detain suspected traffickers. The use of the draconian ISA isn’t just fundamentally wrong in that it denies human right to an open and fair trial, but it also raises a very serious question about the State’s motives in not charging suspected traffickers in an open court.

Based on a report from Lawyers for Liberty, we understand that SUHAKAM is aware of 29 ISA detainees who are accused of human trafficking. We do not know yet have further details regarding this.

From October 10th to 12th 2010, a total of eight Immigration Department officials who were suspected of being involved in a trafficking syndicate were detained without trial under the ISA. Home Minister Datuk Seri Hishamuddin Hussein said that "Their arrest under the ISA was done in line with the government's stand to defend the safety and stability of the country while also enabling better and comprehensive investigations into the case, especially in syndicates involving the trafficking of foreigners…This is also in line with the government's intention to prove to the people of the country and the international community that Malaysia is very committed in fighting human trafficking..” (The Sun, 1st August 2011). Incredibly, these eight Immigration officials were subsequently released in August 2011, based on the Home Ministry’s assessment that “all the detainees were aware of their mistakes and showed remorse for the offence they had committed and made a promise not to repeat it in the future” (The Sun, 1st August 2011).

Meanwhile, Lawyers for Liberty, representing some of the ISA detainees currently held in Kamunting Detention Centre reported last week that there are at least two detainees suspected of human trafficking that are currently detained without trial. Both detainees are foreigners, one a Sri Lankan, while the other an Iraqi. The Sri Lankan detainee was arrested and detained in 2009, and his detention without trial has been extended to 2013, while the Iraqi detainee was arrested in 2011, and his detention (without trial) has also been extended to 2013. Both detainees have told their lawyers that they were severely tortured during the first 60 days of detention in order for the authorities to extract confessions from them. Both refused to confess, and have for the past one month been on a hunger strike to demand their release from detention.

We are still waiting for a decent response from the government and remain shocked over reports of the use of torture these ISA detainees. The use of the ISA to detain human traffickers is both a gross human rights violation of the individual’s right to an open and fair trail and violates principles of good governance and transparency. The State should also be reminded that under international human rights principles, there is an absolute prohibition against the use of torture, even if Malaysia is not a signatory to the Convention Against Torture.

These questions also remain: why didn’t the government charge these persons under the ATIP Act? Is the ISA being used as a means to show that Malaysia is “tough on trafficking”, without actually carrying out proper investigations, being transparent in prosecutions and arresting actual traffickers? What has the Home Ministry to hide in relation to human trafficking and who are they trying to protect?

The Malaysian Human Rights Commission (SUHAKAM) in filing its Annual Report (2011) in Parliament on 26th March 2012 asked the government what criteria and rationale was used to prosecute and punish offenders . It noted the inconsistencies in the penalties for different offenders from 2008 to 2011. For example, in 2008 and 2011, two persons were punished under the ATIP Act for labour trafficking and sentenced to eight years imprisonment each; eight Immigration officials were detained for 10 months without trial and released because they showed remorse over their mistakes; eleven Uighurs from China who were suspected of being involved in human trafficking were deported to China without being charged [possibly at the behest of the Chinese government, and despite protests by UNHCR and civil society not to deport them as the Uighurs face persecution in China]; and now two foreign nationals are detained without trial, and state that they have been tortured in order to confess to being human traffickers.

This opaque and troubling methods of prosecution need to be addressed immediately. The Home Ministry and the Attorney Generals Chambers must answer the critical question raised by SUHAKAM in Parliament earlier this year.

The Home Ministry must also come clear on its policy on prosecution of human traffickers as human trafficking is both a heinous and a global crime that cannot be manipulated and treated as low priority in prosecution. The magnitude and complexity of this problem especially in forced labor conditions and various other forms of modern day slavery is growing daily with increased forced migration as the world inequalities and poverty widen.

The weaknesses within the system of judicial process including prosecution needs an overhauling from rationale and criteria to collection of evidence, with a strong victim centred approach, Ensuring access of NGOs to both detention centres and government-run shelters for trafficked persons is also critical in realizing these proposals. Furthermore, it is of utmost importance that we invest in strengthening the skills of prosecutors and enforcement officers, and demonstrate increased transparency in the State’s case management and prosecutions of human trafficking cases. Transparency is also critical especially where State actors may work hand-in-glove with human traffickers.

Tenaganita also condemns outright the use of the ISA to detain suspected traffickers without trial, not only because it is a heinous injustice to deny persons their right to a fair trial, but also because it is irrational to do so when there is existing legislation (the ATIP Act) to charge the persons concerned.

We call upon the government to immediately release all the ISA detainees. As for the ISA detainees suspected of human trafficking offence, we call on the government to charge them in an open court under the ATIP Act. Failing to do so, the detainees should be release without any conditions.

Malaysia should no longer be allowed to continue its recalcitrant behaviour in the implementation of the ATIP Act. It can no longer ‘hoodwink’ its citizens and the international community with its “A-TIP Plan of Action”, without actually demonstrating real political will, good governance, and transparency.

Irene Fernandez is the director of Tenaganita