BY M. SARAVANABAVAN
HUMAN trafficking is one of organised crime’s most lucrative markets. The size of its annual trade ranks only behind illicit drugs and arms markets. The offence involves the transport of victims, usually between states. It has always been a concern for the international community. The term human trafficking covers the movement of victims for sexual and labour exploitation as well as moving them for organised crime, including pickpocketing, begging and cannabis cultivation.
The definition of trafficking has undergone developments in the international arena and now is codified in the Palermo Protocol, which provides a detailed, internationally accepted meaning.
Incentives have been offered by the international community to tackle the issue, but this is exacerbated by globalisation and expanding borders.
In the recently released United States’s Trafficking in Persons (TIP) report, Malaysia was deemed to be in Tier 2 of the watch list. Countries in Tier 2 are considered those that “do not fully meet the minimum standard in eliminating human trafficking”. The minimum standards were stipulated in the Palermo Protocol, which was passed in 2000.
Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi responded to the TIP Report by reiterating Malaysia’s commitment to combat human trafficking. He vowed to elevate Malaysia to Tier 1 by 2020 and in that respect, he has launched the National Action Plan for Anti Human Trafficking 2016-2020 (NAP TIP 2016-2020).
This action plan will be a source for reference and basic guide for ministries, government agencies and non-governmental organisations in planning strategies and initiatives to combat human trafficking.
This initiative corresponds to trends in international law. Early this year, the European Courts Of Human Rights endorsed the positive obligations of states in human trafficking cases.
The case of L.E. v Greece (2016 ECHR) outlines three obligations for states: (1) to adopt an appropriate legal and administrative framework; (2) to take protective operational measures; and, (3) to conduct an effective criminal investigation and court proceedings.
The European Court has held that states are required to design and implement a legislative framework capable of identifying victims, and realistic enforcement to prohibit and punish individuals who engage in human trafficking.
There is also an obligation to protect victims and a duty to investigate claims of human trafficking effectively, promptly and independently of those implicated and which leads to the identification and punishment of individuals responsible.
The European Court decision is significant as it establishes clear duties and positive obligations on states to criminalise human trafficking.
NAP TIP 2016-2020 and Malaysian legislation on human trafficking have made provisions to fulfil the obligations identified above. Malaysia has legislation criminalising human trafficking, that is, the Anti-Trafficking in Persons and Anti Smuggling of Migrants Act 2007 and the definition of this criminal offence is in line with the definition in the United Nations Trafficking Protocol.
Also, Malaysia’s legislation provides for protection measures for victims of human trafficking (healthcare, food and legal support) and has enforcement and prosecution mechanisms against offenders.
Additionally, NAP TIP 2016-2020 seeks to bolster operational measures by having mechanisms to strengthen laws, encouraging concerted actions among enforcement agencies and promoting the exchange of information among states.
Malaysia has always treated human trafficking as a crime against humanity.
This view highlights the severity of the criminal act and also reflects the evolving nature of criminality. NAP TIP 2016-2020 is a step forward for Malaysia since the Anti-Trafficking in Persons Act 2007 reaffirmed the demanding positive obligations in human trafficking imposed by international instruments and judgments.
The effect is that it strengthens the law in this area and provides for a more unified approach to dealing with trafficking. The idea is that if all states complied with their obligations and undertook measures in adopting legislation to protect potential victims of trafficking, it will make it harder for traffickers to commit abuse.
It is believed that the government’s action plan is a step forward in ensuring that our legal and policy framework adheres to an integrated human rights-based approach that prioritises the prosecution, protection and prevention of human trafficking. As such, we can confidently say that Malaysia is on its way to Tier 1 status.
DR M. SARAVANABAVAN
Hutan Melintang, Perak