KUALA LUMPUR, May 27 — Malaysia does not have a dearth of laws to stunt human trafficking, yet why is it so difficult to put a human trafficker in jail?
Universiti Malaya’s criminologist Haezreena Begum Abdul Hamid said that proving in court that a person was trafficked comes with a great many challenges due to the nature of this calculated and complex crime.
Ironically, the vulnerability of the victims also serves as a hurdle to putting the culprit behind bars.
“We have a lot of laws but because trafficking is such a complex issue, it's sometimes difficult to comprehend.
“Not only in Malaysia but throughout the world, the conviction rate is very low. In terms of prosecution, we have a very heavy threshold to prove trafficking,” said Haezreena, who is also the deputy dean (postgraduate) of the Faculty of Law.
She warned that taking down traffickers is nothing like the suspenseful action movies we see. In reality, there are many circumstances that lead to trafficking.
Usually, victims come to Malaysia to work an honest job but end up exploited or deceived by their employers or agents; some of them are trapped in debt bondage and other “contracts”.
In Malaysian courts, the primary witness to a crime of human trafficking is the victim.
Even with all that the victim can testify to, Haezreena said that a trafficking case often falls between the cracks because the means of trafficking are difficult to prove.
In court, the prosecution would need to prove the elements that distinguishes voluntary work from human trafficking: the act (which could be recruitment or movement), the purpose of trafficking and the means of trafficking which typically consist of coercion, force, taking advantage of vulnerability, deception or others.
“The burden of proof vests on the one who asserts, so for example, the victim wants to prove coercion, how do you prove coercion? How do you prove psychological harm as well? You need to have witnesses show that the person was coerced, or forced or there was undue pressure asserted.
“And who can give that testimony? Just the witness themselves,” she said, referring to the victim, noting that to fortify evidence in court, corroboration of evidence is needed yet difficult to obtain as the only people that can testify to what actually happened are normally all the way in the victim's home country.
“If she is sexually exploited there may be condoms, there may be lubricant, or anything but these are all just supplementary evidence. It does not directly show that they were trafficked," the law lecturer explained.
However, traffickers in Malaysia often plead guilty under a reduced charge under the Immigration Act 1959/63, the Passport Act 1966 or the Penal Code.
A crime with a lesser charge would also sometimes be easier to prove, the academic said.
Haezreena added that the normal burden of proof in criminal cases should not apply to trafficking cases and that the threshold should be lowered to ensure justice for victims.
She acknowledged, however, that extensive work and discussions between the Attorney General's Chambers, the Bar Council and others are required before making it a reality.
In cases where the trafficker claims trial, there have been instances where the proceedings were stretched for almost two years which forces the victim to stay in Malaysia until the trial concludes.
On top of being trafficked, being confined in a shelter for extended periods would undoubtedly cause distress to the victims, Haezreena said.
But, the situation in Malaysia has improved.
“Now, victims are given RM120 a month in the shelter. At least they don’t go back empty-handed,” the academic said.
She explained that for many victims it is a social stigma to return to their country penniless as their families expect them to return with something.
For some victims, their families paid high fees just for them to be recruited and brought over to Malaysia for work, without knowing that they would be trafficked in the end.
Interestingly, there have been fewer reports of human trafficking in Malaysia since the Covid-19 pandemic but the reason remains unclear.
Haezreena said it could be because some borders are still tight and there is less demand for workers but she also warned that cases may have simply gone under the radar.
Haezreena’s two books ― Handbook on Human Trafficking A Legal and Criminological Perspective, and Human Trafficking Playbook ― which are available in English and Malay will be launched on June 4.
The books are aimed to be a point of reference for academics, students, law enforcement and others when dealing with the topic or the victims.
