Nazreen, programme coordinator at CAMSA (Coalition to Abolish Modern-day Slavery in Asia), writes on the shortcomings of existing legislation with regards to the protection of trafficked persons. She also shares what CAMSA has proposed in relation to this, and why the delicateness of such circumstances must be finely dealt with.
The Anti-Trafficking In Persons Act came into force on 28 February 2008. This Act was then amended in 2010 in order to strengthen the regulatory framework to deal more effectively with the issues of human trafficking and smuggling of migrants in Malaysia. After the amendment was passed and the act came into force on 15 November 2010, it is now known as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.
Even with the amendments made, in hopes of strengthening the legislation as well as its enforcement, Malaysia was placed on Tier 2 in the U.S Department of State’s Trafficking in Persons Report for 2 consecutive years. The 2011 report stated that the Malaysian Government has failed to comply fully with the Trafficking Victims Protection Act’s minimum standards to eliminate trafficking in this country. However, the report also recognised that the Government is taking considerable efforts to address serious concerns regarding trafficking in Malaysia.
CAMSA (Coalition to Abolish Modern-day Slavery in Asia) is working very closely with relevant authorities to combat human trafficking from every possible aspect. As one of the NGO members in Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants (MAPO), CAMSA was also invited by the Prosecution Department of the Attorney-General’s Chambers to be part of the consultation group in assessing the current law and making suggestions for amendments.
One issue that we pointed out in the consultation was the placement of trafficking victims in government shelters. Under the current law, once a victim is identified, they will be put under the Protection Order and then placed in a gazetted shelter managed by the Government. Though the intention of placing them there is one of protection and care, victims often feel suffocated and isolated, as though they are being punished for something they did wrong. In fact, many believe that they are being detained because they broke the law. This inflicts further trauma on many victims.
Being kept in Government-institutionalised shelters, the victims’ freedom of movement is restricted. They are unable to earn a livelihood and have no access to legal advice or representation. It is also difficult for NGOs to enter the shelter to provide any form of empowerment or psychological assistance. Furthermore, victims are compelled to become witnesses in the prosecution’s case but are not given any form of incentives for their cooperation. They are not even given an opportunity to claim damages against traffickers!
A victim of human trafficking could have many civil claims against traffickers – including unpaid wages (basic, overtime and holiday leave etc), termination benefits, false imprisonment, assault (physical and/or sexual), aggravated and exemplary damages, interest thereon, declaratory and injunctive relief, unjust enrichment, medical costs, cost of psychological treatment and therapy, legal and other costs. The law also does not provide any alternatives for victims who may face harm upon returning to their home country. Most, if not all, the victims will be repatriated after providing evidence under oath.
Taking into consideration all the concerns mentioned above, CAMSA proposed some amendments to the current law. We believe that the law should not only be prosecution-centric, but must also consider the rights and needs of victims. One of our proposals is to widen the scope of shelters to be run and managed by NGOs. This could provide greater flexibility in which care and protection is not only given physically but victims are also empowered and their rights are protected. It is also important for shelters to look into the differing needs of women and men, adults and children, as well as the numerous different nationalities who need assistance.
Victims should be given access to legal representation so that they can be aware of their rights, and to be able to make informed decisions about their case. The victim should not be further victimized by losing the opportunity to enforce claims against traffickers. In terms of the prosecution’s case, we proposed that the law be amended so that the victim is given a choice as to whether and to what extent they wish to cooperate with the law enforcement.
Whatever their decision, a victim’s care and protection should not be made conditional upon cooperation. Immunity should be given to them, simply because they are victims of human trafficking and not only if they cooperate with the authorities. We must understand that some victims are not willing to cooperate or disclose any information for fear of their (or their family back home’s) lives.
A person who has gone through a situation involving trafficking must not be penalised further. Like any other human being, they also have rights and must be treated with dignity. In order to do this, we must amend our laws to holistically combat modern-day slavery and human trafficking in Malaysia.
To learn more about CAMSA and how you can play a part in combating human trafficking, visit their website here and reach out to them. This NGO, like many others, needs your time, skills (e.g. clerical, medical, legal, technical etc) and funds. Please contribute in any way you can. Today.