Human trafficking or illegal entry: Why Malaysia must investigate before detaining migrants

Malaysians Against Death Penalty and Torture (Madpet) is most concerned that Malaysia may have forgotten to consider first whether alleged ‘undocumented migrants’ detained are victims of human trafficking.

Victims of human trafficking are not criminals.

The principle of non-liability and non-punishment for crimes committed by victims of human trafficking has been adopted by Malaysia and is also found in law: the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.

Undocumented migrants?

It was reported that:

…Malaysian authorities detained 843 undocumented migrants during an integrated enforcement operation in Selayang Baru last night after they were suspected of committing various offences under the Immigration Act. – Malay Mail, 7 December

A total of 17,896 undocumented migrants were being held at immigration detention centres nationwide as of July 6, with over 10% of them being children. – Free Malaysia Today, 7 August

How many of these undocumented migrants are in fact victims of human trafficking? Law enforcement must not treat victims of human trafficking like criminals. Victims of human trafficking should be protected and never be treated like criminals.

No criminal liability?

…Victims of trafficking are subjected to exploitation in various ways. Sometimes, as a result of their victimization, they engage in illegal conduct. Common examples include involvement in the sex trade, involvement in drug production or trafficking, petty crime, possession or the use of fraudulent documents or entering another country in a manner that does not comply with its immigration laws, and even phone/online scam. In many cases, victims are forced or otherwise compelled by traffickers to commit these crimes or other illegal conduct…’ – ICAT, The Inter-Agency Coordination Group against Trafficking in Persons

In 2002, the United Nations High Commissioner for Human Rights issued recommended principles and guidelines on human rights and human trafficking that provides that: “Trafficked persons shall not be detained, charged or prosecuted for the illegality of their entry into or residence in countries of transit and destination, or for their involvement in unlawful activities to the extent that such involvement is a direct consequence of their situation as trafficked person.”

The Asean Convention Against Trafficking in Persons, Especially Women and Children, which was adopted in Kuala Lumpur, Malaysia on 21 November 2015 clearly states in Article 14(7):

Each Party shall, subject to its domestic laws, rules, regulations and policies, and in appropriate cases, consider not holding victims of trafficking in persons criminally or administratively liable, for unlawful acts committed by them, if such acts are directly related to the acts of trafficking.

Non-criminal liability of victims

In Malaysia, Section 25 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act states:

Section 25 – Immunity from criminal prosecution

A trafficked person shall not be liable to criminal prosecution in respect of:

    (a) his illegal entry into the receiving country or transit country;

    (b) his period of unlawful residence in the receiving country or transit country; or

    (c) his procurement or possession of any fraudulent travel or identity document which he obtained, or with which he was supplied, for the purpose of entering the receiving country or transit country, where such acts are the direct consequence of an act of trafficking in persons that is alleged to have been committed or was committed.

Thus, Madpet is concerned whether the Immigration Department and other authorities have ignored this law when they crack down on migrants or even local people, without considering whether they are victims of human trafficking or not.

How many of the 843 undocumented workers recently detained were victims of human trafficking? If they are victims, they should not be detained in the first place or treated like criminal suspects or criminals. They should not be placed in the same detention places. As victims, they should be housed in proper dignified housing.

From deception to victims

Many foreign nationals have been deceived into coming to Malaysia as migrant workers, only to find themselves with no job or income as agreed or promised.

Recently, a High Court decision upheld a Labour Court ruling awarding over RM760,000 to the workers, who were left stranded without jobs upon arriving in Malaysia in 2023. – Malaysiakini, 1 November.

In this case, these migrant workers managed to get a new employer, and thus were able to pursue their rights in Malaysian courts.

How many other migrant workers would have been not so lucky – and ended up in Malaysia ultimately as ‘undocumented migrants’ as a direct consequence of an act of human trafficking and being compelled by their reality to an earn income in whatever way possible.

Other migrants may have been tricked into coming to Malaysia on agreements to work for three or more years, but end up being deceived when their employer wrongly failed to renew their immigration annual work passes or permits. Agreements to pay recruitment fees are sometimes also breached or agreed wages are not paid. And if the workers fight for their rights, they risk being sent back to their home country ‘forcibly’.

One recently reported case – Ansell suspended MediCeram as a supplier and publicly expressed its unhappiness with the company – would not have happened if Ansell found the allegation of worker abuse was not baseless. The allegations against the employer in this case included wage theft, forced labour and debt bondage, as well as the deportation of workers who complained about their treatment. – ABC, 23 November

From deception to trafficking

In the Malaysian Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act, “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

“Exploitation” includes 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.

As such, it is highly probable that many of these so-called ‘undocumented migrants’ are in fact victims of human trafficking. Malaysia too may be guilty of being accomplices in the crime of human trafficking if it simply takes them as people illegally coming or remaining in Malaysia, without first considering and investigating whether these ‘undocumented migrants’ are in fact victims of human trafficking.

If they are victims of human trafficking, then Malaysia must identify and prosecute the human traffickers, even if they may be government-linked companies.

The victims are necessary witnesses, needed for the successful prosecution of human traffickers. Malaysia must not ‘destroy’ or make unavailable such witnesses who are needed for the effective prosecution of human traffickers in Malaysian courts.

Compensation for suffering

Victims of human trafficking should not just be rescued but should be adequately compensated for their sufferings and losses as a consequence of being trafficked. This can only be done in Malaysia, where these human trafficking companies and people are.

Ensure victims not wrongly arrested

Madpet calls for the setting up of an anti-trafficking task force that will effectively also investigate and determine whether all those currently in detention in Malaysia – in immigration detention facilities and other facilities – for being illegally present in Malaysia are indeed victims of human trafficking.

Those who came into Malaysia through the use of valid employment passes or permits should be presumed to be victims of human trafficking unless their employer or agent can prove otherwise.

For others who came to Malaysia on the promise of work and income, they too should be presumed to be victims of human trafficking.

Expand criminal non-liability of victims

It is no use having laws that acknowledge the principle of non-liability and non-punishment for crimes committed by victims of human trafficking, and then not enforcing them.

Madpet also urges Malaysia to extend this principle to cover all other crimes where those trafficked were victims who were forced or otherwise compelled by traffickers to commit a crime. This must cover all crimes, including drug production or trafficking, petty crime, possession or the use of fraudulent documents, or entering another country in a manner that does not comply with its immigration laws, and even phone or online scams.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture.

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