MALAYSIA: Tier 3
The Government of Malaysia does not fully meet the minimum standards for the elimination of trafficking and is not making significant efforts to do so, even considering the impact of the COVID-19 pandemic on its anti-trafficking capacity; therefore Malaysia was downgraded to Tier 3. Despite the lack of significant efforts, the government took some steps to address trafficking. The government prosecuted and convicted some traffickers, adopted victim identification standard operating procedures (SOPs), continued to identify and provide some protection services to trafficking victims, and publicly released the results of a survey it funded on the prevalence of forced and child labor in the palm oil sector. However, the government continued to conflate human trafficking and migrant smuggling crimes and did not adequately address or criminally pursue credible allegations from multiple sources alleging labor trafficking, including in the rubber manufacturing industry and palm oil sector, with the government owning 33 percent of the third largest palm oil company in the world. The government continued to rely on victims to “self-identify” and did not implement SOPs to proactively identify victims during law enforcement raids or among vulnerable populations with whom authorities came in contact; thus, authorities continued to inappropriately penalize victims for immigration and prostitution violations. Insufficient interagency coordination and inadequate victim services, which discouraged foreign victims from remaining in Malaysia to participate in criminal proceedings, continued to hinder successful law enforcement efforts to prosecute traffickers. Despite ongoing concerns that corruption facilitated trafficking, the government arrested and investigated, but did not prosecute or convict, officials who were allegedly complicit in trafficking-related crimes.
Increase efforts to identify trafficking victims among vulnerable populations, including household workers and palm oil plantation workers • Increase efforts to prosecute and convict more trafficking cases—as distinct from migrant smuggling—including those involving complicit officials and forced labor crimes. • Make public the results of investigations involving corrupt officials to increase transparency and deterrence and hold officials criminally accountable when they violate the law. • Increase law enforcement capacity to investigate and prosecute trafficking cases, including by improving interagency coordination. • Improve case management and communication with trafficking victims, including through an expanded Victim Assistance Specialist program. • Expand labor protections for domestic workers and investigate allegations of domestic worker abuse. • Take steps to eliminate recruitment or placement fees charged to workers by recruiters and ensure recruitment fees are paid by employers. • Expand efforts to inform migrant workers of their rights and Malaysian labor laws, including their rights to maintain access to their passports at any time, as well as opportunities for legal remedies to exploitation. • Create a system for access to timely and accurate interpretation in victims’ primary languages available to law enforcement, the court system, and shelters. • Continue to expand cooperation with NGOs, including through financial or in-kind support to NGOs to provide some victim rehabilitation services. • Effectively enforce the law prohibiting employers from retaining passports without employees’ consent, including by increasing resources for labor inspectors, and include language explicitly stating passports will remain in the employee’s possession in model contracts and future bilateral memoranda of understanding with labor source countries. • Increase the number of trafficking victims who obtain approval for freedom of movement from shelters, expand freedom of movement to include unchaperoned movement, and increase victims’ access to communication with people outside shelter facilities, including through telephone calls. • Train relevant officials, including labor inspectors and immigration officials, on SOPs for victim identification that include information on trafficking indicators. • Reduce prosecution delays, including by providing improved guidance to prosecutors on pursuing trafficking charges, and increase judicial familiarity with the full range of trafficking crimes, particularly forced labor. • Increase efforts to identify trafficking victims among Chinese workers on Chinese-government affiliated infrastructure projects.
The government demonstrated mixed protection efforts. From April 2020 to March 2021, the government identified and confirmed 119 trafficking victims among 487 potential victims. Of the confirmed victims, 72 were adult women and 47 were men or children. This data compared with the 82 confirmed victims identified and granted full protection orders among the 2,229 potential victims during the previous reporting period. In April 2020, the anti-trafficking council (MAPO) formally adopted victim identification SOPs, which were previously developed in collaboration with NGOs. However, the government did not report systematically implementing these SOPs; thus, authorities continued to punish potential trafficking victims with arrest, detention, and deportation for immigration or prostitution violations. The government continued to focus most of its identification efforts on the use of large-scale police raids of suspected commercial sex establishments; NGOs reported that some police units continued to conduct these raids during the reporting period. The government also conducted raids during the reporting period on factories suspected of having forced labor, the more prevalent trafficking problem in Malaysia. The government did not place adequate attention on the identification of victims of forced labor. Officials reported the government’s identification of labor trafficking victims often relied on reports of abuse from embassies representing foreign workers or from workers’ complaints of non-payment of wages and other violations, rather than proactive screening efforts. Despite adopting victim identification SOPs, NGOs reported police and immigration officers inconsistently applied victim identification procedures during large-scale operations to detect undocumented migrants, which ultimately prevented some foreign victims from being identified as victims and receiving protection services. Law enforcement authorities relied on victims to “self-identify” subsequent to a police raid, rather than proactively identifying victims using standardized procedures or victim-centered screening methods. Furthermore, the government did not partner with NGOs to help screen for trafficking during such raids or among vulnerable populations. The government did not adequately screen asylum-seekers and refugees for indicators of trafficking. Officials’ interpretation that ATIPSOM required a trafficking victim to be subjected to physical restraint, prevented the government from identifying some victims and issuing protection orders to many suspected victims of trafficking. NGOs relayed that authorities often treated potential victims identified during police or immigration raids like criminals; this treatment and the raid-environment were not conducive to victims speaking candidly to law enforcement and consequently contributed to the government’s insufficient identification of victims. In January 2021, the government announced a state of emergency and extended power to the armed forces to arrest undocumented migrants—a population highly vulnerable to trafficking—at the border. NGOs reported the government’s focus on illegal immigration during the reporting period resulted in local law enforcement personnel treating potential trafficking victims as illegal migrants and failing to investigate perpetrators for trafficking crimes.ATIPSOM required that the government place victims who were granted a court-ordered 21-day interim protection order (for potential trafficking victims) or a subsequent 90-day protection order (for certified trafficking victims) at a “place of refuge,” designated by the Minister of Home Affairs. During the reporting period, the government granted all 119 certified victims with full protection orders and housed them in government-operated shelters where they had access to food, medical care, social, religious, and income-generating activities, and security. The Ministry of Women, Family, and Community Development continued to fund eight shelters for trafficking victims: five government-operated and three NGO-operated. While the law permitted victims who were Malaysian citizens or permanent residents to be placed in the care of family members or a guardian, as opposed to a government shelter or other designated place of refuge, foreign victims were required to remain in government shelters for the duration of their protection orders. The government typically renewed protection orders for certified victims until the completion of the trial associated with their case; this resulted in some victims remaining in the shelters for up to six months. NGOs reported investigative authorities did not allow sufficient time to appropriately interview potential victims in shelters in order to certify them as victims and grant 90-day protection orders, which prevented some victims from obtaining protection services. Undocumented foreign trafficking victims had a considerably lower chance of obtaining protection orders compared with foreign victims who had valid immigration papers. During the 21-day protection order, immigration authorities could offer special immigration passes to victims of labor trafficking that would allow them the right to work. Although the government did not require victims to participate in prosecutions to access special immigration passes, NGOs reported the government required victims seeking these benefits to make an initial deposition in court. While the government reportedly maintained a streamlined process to issue immigration passes, which required a security risk assessment, medical screening, and mental health evaluation by the end of victims’ 21-day interim protection order, no victims had requested an immigration pass nor were any issued during the reporting period. The government continued to lack enough qualified mental health counselors to conduct the required psycho-social evaluation during the appointed 21-day timeframe. In comparison, the government issued 45 special immigration passes to victims during the previous reporting period. Furthermore, victims were not permitted to leave shelters unless immigration authorities granted them a freedom of movement pass; however, the government was less likely to approve these passes for female victims of sex trafficking. Although the government reported freedom of movement passes allowed victims to leave the shelters unchaperoned, in practice, a victim’s freedom of movement outside of shelters remained restricted to chaperoned trips. NGOs reported these shelter conditions resulted in victims feeling as though they were detained. Of the 119 confirmed victims, the government issued 66 freedom of movement passes, compared with 45 passes for 82 confirmed victims during the previous reporting period. The government issued a work visa to one victim during the reporting period, compared with one in the previous reporting period; the victim later declined the visa and requested repatriation.NGOs reported medical screening was inadequate for victims upon arrival to government shelters, and shelters lacked full access to reproductive health and dental services. Shelters did not have medical staff on site, and accessing medical care required shelter staff to coordinate transportation and a chaperone. Shelter staff limited victims’ communication, including with family members in their home countries, and the government did not permit victims to possess personal phones in shelters. Despite placing translated shelter rules and regulations in five languages in some government shelters, language barriers continued to impact the government’s victim services. The lack of available and adequate interpretation services prevented some victims from understanding shelter rules and their rights during the judicial process, contributing to stress and reluctance to participate in prosecutions. As in past years, many identified victims preferred to return immediately to their home countries. The government worked with foreign diplomatic missions to fund and provide repatriation assistance for victims to return to their home countries. The government continued to give monthly allowance payments of 127 Malaysian ringgit (RM) ($32) to victims for incidental expenditures. The government did not always disburse the funds on a monthly basis; some victims received the allowance as a lump sum when they repatriated home. The government allocated 750,600 RM ($186,720) to three shelters operated by local NGOs that could assist potential and certified victims, a decrease compared with its allocation of 1 million RM ($248,760) to two shelters in 2019. NGOs provided some victim services, including medical care and counseling, without government-allocated funding; however, NGOs continued to express difficulty maintaining adequate resources and staffing levels to provide consistent services for victims.The government extended a victim assistance specialist program until March 2023; under the program, two appointed specialists provided services to trafficking victims from the time authorities identified them, through the judicial process, and during their repatriation to their home country. The specialists under this program worked with and provided assistance to 15 victims during the reporting period—a significant decrease from more than 100 victims they assisted during the previous reporting period. For victims who participated in court proceedings, the government instructed prosecutors to request restitution in each case; during the reporting period, prosecutors requested restitution in five cases, compared with 24 in 2019, and secured 86,236 RM ($21,450), compared with 124,410 RM ($30,950). The government did not provide legal alternatives to the removal of foreign victims to countries where they may face hardship or retribution. ATIPSOM required that foreign victims without legal residence in Malaysia be referred to immigration authorities for repatriation upon the revocation of their protection order.
The government maintained efforts to prevent trafficking. The Ministry of Home Affairs led the MAPO council, which included five enforcement bodies, other government entities, and three NGOs. It continued to meet on a quarterly basis and coordinated interagency anti-trafficking efforts to implement the government’s 2021-2025 national action plan. In 2020, the government allocated 4 million RM ($995,020) to operate the MAPO secretariat, the same amount allocated during the previous reporting period. The government created 11 television and 10 radio anti-trafficking programs and broadcasted more than 3,000 anti-trafficking public service announcements on television stations and more than 55,000 announcements on national radio networks, compared with 27,667 radio broadcasts in 2019; it also created 22 anti-trafficking billboards, issued more than 5,000 mobile trafficking awareness announcements, and continued to distribute brochures raising trafficking awareness in multiple languages during the reporting period. The government also allocated 12,048 RM ($3,000) to a local NGO to implement anti-trafficking awareness campaigns. Labor officials continued to provide banners and other signage at the Kuala Lumpur International Airport in holding lounges for newly arrived migrant workers in a range of languages to help educate foreign workers about their rights in Malaysia. The government hosted three public sessions for more than 700 foreign workers in the palm oil industry about their legal rights and for employers on indicators of forced labor. The government continued to operate an anti-trafficking hotline, established in 2018; however, it was attached to a general government hotline staffed by operators who were not trained to work on human trafficking cases. The hotline reportedly received 22 calls during the reporting period, which resulted in the initiation of 22 law enforcement investigations and the identification of seven potential trafficking victims.The government continued to enforce its ban of Malaysia-based outsourcing companies, which previously often used practices that perpetuated debt-based coercion among migrant workers. The government’s Private Employment Agency Act (PEAA) required all private recruitment agencies to secure a license with the Ministry of Human Resources to recruit foreign workers, including domestic workers. The PEAA capped employee-paid recruitment placement fees at 25 percent of the first month’s salary for Malaysian workers employed within or outside of Malaysia and one month’s salary for non-citizens employed within Malaysia. The law did not define what comprised a “placement fee” and enforcement of this rule was lacking; the majority of migrant workers in Malaysia paid much higher fees to recruitment agents, including in their home country, which contributed to the workers’ vulnerability to debt-based coercion. The government also mandated employers pay the foreign worker levy, a one-time cost paid to the government for any non-Malaysian the company hired, instead of forcing workers to bear the cost. The government did not report investigating any employment agencies for violating the PEAA during the current or previous reporting period. The government continued to use an online application system – launched during the previous reporting period – for employers to renew their workers’ temporary work permits without using a broker. During the reporting period, the government convicted six immigration officers, suspended five officers from their duties, and investigated 28 officers for involvement in providing fraudulent passport stamps to allow foreign workers and undocumented immigrants to stay in Malaysia.