As the world tackles the coronavirus pandemic, it continues to have a widespread impact on migrant workers.
For disadvantaged migrant workers in Malaysia, traffickers will find ways to keep them trapped in exploitative, forced-labour situations.
How this will play out is clear. These workers will take jobs that may be exploitative, informal, below minimum wage, with no legal and health protections. One can, therefore, be sure they’ll be even more vulnerable to exploitative labour systems in the wake of this global economic and social crisis.
Here, we look at how the constructed definition of “trafficking in person” under the Anti-Trafficking In-Person and Anti-Smuggling of Migrants Act 2007 (ATIPASMA) affects migrant workers trapped in forced labour situations.
Malaysia formulated the ATIPASMA in 2007, with core reference to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (Palermo Protocol), which it acceded to on 26 February, 2009.
The ATIPASMA aims to comprehensively counter human trafficking. The main themes are threefold: to combat human trafficking by ensuring that traffickers are apprehended, investigated, prosecuted and appropriately punished; to protect and support victims of trafficking; and to set up legal and administrative mechanisms for the prevention of trafficking.
Article 3 of the Palermo Protocol defines “trafficking”, which has helped Malaysia in defining the crime. Under the ATIPASMA, “trafficking in person” means “all actions involved in acquiring or maintaining the labour or service of a person through coercion, and includes the act of recruiting, conveying, transporting, transferring, harbouring, providing or receiving of a person for exploitation”.
“Exploitation” is defined as “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”.
The three aspects of trafficking
There are three aspects to the crime of trafficking in persons.
Firstly, there must be acts of acquiring or maintaining the labour or services of a person through the process of “recruiting, conveying, transferring, transporting, transferring, harbouring or receiving a person” (the act).
Secondly, the act above must be by way of “coercion” (the means). “Coercion” is defined as: (a) threat of serious harm to or physical restraint against any person; (b) any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or (c) the abuse or threatened abuse of the legal process.
Thirdly, the “act” and “means” must have been carried out for the purpose of “exploitation” (the purpose). “Exploitation” is defined as “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”.
The definition limits the crime to situations in which a person is exploited by means of “coercion”. This is inconsistent with the Palermo Protocol, which states that trafficking includes not only cases of coercion, but also “of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”.
The broader definition is aimed to cover particular cases of child trafficking where adults use their power over children to force them into exploitative work and prevent them from escaping.
Without proper clarification, the understanding and comprehension of forced labour may be limited to extreme cases, and fail to show the importance of non-visible indicators.
It’s also essential to effectively prosecute traffickers who abuse adult victims by using fear, psychological manipulation, and spiralling debt to prevent the victim from seeking help. Although the victims may not be physically restrained, they may be affected by psychological coercion.
“Coercion” as defined by the ATIPASMA is therefore narrow. It’s inconsistent with the realities of modern forms of exploitation that include elements of psychological coercion, deception, fraud and abuse of vulnerabilities.
It also fails to clearly include psychological coercion, which is a powerful coercive practice.
This is particularly so where migrant workers trafficked for forced labour into Malaysia are recruited through deception and fraud. Upon arrival, the fraud continues. They’re required to perform arduous and dangerous labour for little pay, often less than promised. Some employers withhold pay entirely, and many provide squalid housing for their workers, a factor found by the International Labour Organisation (ILO) to be linked to exploitation and forced labour.
As a legal concept, forced labour is not defined in any legislation, although it’s a form of exploitation criminalised under the ATIPASMA. This is despite the fact that Malaysia ratified the ILO Convention on Forced Labour 1930 in 1957.
The convention defines “forced labour” as “all work or service which is exacted from any person under the menace of any penalty, and for which the said person has not offered himself voluntarily”.
Forced labour is specified as an act of compulsion and intimidation, and the convention commands all state parties to take the necessary preventative measures to counter this activity.
Despite the absence of a definition in the ATIPASMA, indicators of forced labour are evident under the Employment Act 2012. These include contract substitution, excessive overtime, withholding of wages, debt bondage, and abusive working and living conditions.
However, without proper clarification, the understanding and comprehension of forced labour may be limited to extreme cases, and fail to show the importance of non-visible indicators, such as psychological intimidation, fraud and deception, as the narrowed definition of “coercion” fails to acknowledge that forced labour could occur through abuse of these non-visible indicators.
Due to the onerous burden of proving “coercion” and the absence of a coherent definition of “forced labour”, finding a solution for migrant workers trafficked for forced labour under the existing ATIPASMA is difficult.
Consequently, these cases fall through the cracks, and trafficked migrant workers forced into exploitative working conditions are treated as immigration or industrial dispute cases. The cases aren’t heard in the special court, which was established specifically to deal with human trafficking offences, and the victims aren’t entitled to the protection provided by Part IV of the ATIPASMA.
As such, broadening the “means” element of human trafficking to include more than “coercion”, and providing a clear definition of “forced labour” under the ATIPASMA is paramount.
Without clarification, the problem will grow
The confusion regarding trafficking, forced labour, and substandard working conditions as indicators is apparent, and will only become more problematic in today’s context.
As work dries up during the pandemic, desperation among migrant workers will grow. Working conditions can quickly deteriorate at the hands of unscrupulous employers, resulting in an increase in human trafficking and forced labour situations.
The law has to keep up with the times, and these concepts have to be clarified, unmistakably identified, illustrated and explicated if they’re to have significant impact on the trafficking of migrant workers for forced labour in Malaysia.
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