Why Malaysia's Ranking in the State Department's 2016 Human Trafficking Report is Profoundly Disappointing

Statement

Today, the State Department issued the 2016 Trafficking in Persons (TIP) Report.

It is profoundly disappointing that, for the second year in a row, the State Department has given Malaysia an undeserved ranking by choosing not to designate Malaysia as a Tier 3 country.

The Report appears to be in search of small details that illustrate progress when the overall picture remains very dire and Malaysia is not taking the action necessary to change a disturbing situation.

As the TIP Report describes each year, there are approximately two million documented and more than two million undocumented foreign workers in Malaysia, and the majority of trafficking victims in Malaysia are from this population. They are vulnerable to debt bondage, passport confiscation, wage fraud, and abuse in the agricultural, construction, electronics, and domestic sectors, as well as being forced into prostitution.

Notably, the 2016 TIP Report finds that:

· "Malaysia initiated fewer trafficking investigations and prosecutions compared to last year;"

· "The government demonstrated uneven anti-trafficking law enforcement efforts;"

· "The Ministry of Home Affairs completed the implementing regulations in March 2016; however, they were not officially in effect at the close of the reporting period;"

· "The government modestly increased efforts to prevent trafficking;" and

· "Employment law continued to exclude domestic workers from a number of protections, including the country's minimum wage. Labor inspectorates . . . referred seven cases of exploitative labor for criminal proceedings, a relatively low number given the extent of labor trafficking in the country; results of the seven referrals were unavailable at the close of the reporting period."

Today's report concludes that "the government did not demonstrate overall increasing anti-trafficking efforts compared to the previous reporting period." However, Malaysia's ranking last year reflected an unwarranted upgrade that undermined the integrity of the TIP Report's ranking system.

The State Department's decision to maintain Malaysia at that ranking continues to be a disappointment and undermines the integrity of the TIP Report's reputation.

Background

Last year, a series of events focused a spotlight on the horrors of forced labor and human trafficking in Malaysia, and their intersection with U.S. trade policy.

In May 2015, authorities discovered mass graves containing the remains of nearly 140 trafficking victims at abandoned human trafficking camps in northern Malaysia.

In June, the Trade Priorities and Accountability Act of 2015 (TPA, also known as "fast track") was approved by Congress and signed into law by the President. At the time, TPA included a provision that strictly prohibited the application of expedited "fast track" Congressional approval procedures to U.S. trade agreements with countries with the worst records on human trafficking, as defined by their rankings in the State Department's annual Trafficking in Persons Report (the TIP Report).

Malaysia, a party to the Trans-Pacific Partnership (TPP) trade agreement, had been given the lowest ranking "Tier 3" in the 2014 TIP Report. Aside from the gruesome discovery of the mass graves in May 2015, there was also broad agreement that since the 2014 TIP Report, Malaysia had done very little to address its trafficking problem and did not meet the minimum standards for eliminating trafficking.

And yet in July 2015, when it finally issued the 2015 TIP Report, the State Department upgraded Malaysia from Tier 3 to the next lowest ranking, effectively restoring fast track eligibility to the TPP.

When asked how an upgrade in Malaysia's ranking could have been justified given the discovery of the mass graves at the abandoned trafficking camps just two months earlier, the State Department explained that those discoveries had occurred outside of the official reporting period for the TIP Report, which closed on March 31. Instead, the State Department said, it took into account a number of other factors in making the upgrade. Those factors included:

· Malaysia drafted and proposed amendments to its existing anti-trafficking laws that would, among other things, provide more protections to trafficking victims (although the amendments were not passed until after the reporting period ended);

· Malaysia increased the number of investigations and prosecutions related to trafficking as compared to the previous year (although the number of convictions decreased from nine to three);

· Malaysia adopted a pilot program to allow a limited number of trafficking victims to leave government holding facilities to work while their trafficking prosecutions were pending (although the State Department acknowledged that the pilot program was "very modest, very small" and only four victims participated in the program); and

· Malaysia continued trafficking prevention efforts that included campaigns to raise awareness, publishing informational brochures, and training nearly 700 government officials.

These explanations persuaded few, if any. The 2015 rankings upgrade for Malaysia was decried by 160 Members of Congress from both sides of the aisle, including myself, and by civil society experts in the United States. U.S. civil society groups have pointed to the State Department's upgraded ranking for Malaysia as "the single most suspect ranking in the 2015 TIP Report" and expressed dismay that the unwarranted upgrade's effect has been to "severely weaken[] the report's credibility."

The upgrade also disappointed important groups in Malaysia, including members of the Malaysian parliament, the Malaysian Trades Union Congress (MTUC), nongovernmental organizations, and the Malaysian Bar Council, that support serious efforts to combat forced labor and human trafficking in Malaysia.

The Los Angeles Times editorial board put it well when it called out the upgrade as "the cynical politics of free trade."

Since the 2015 TIP Report was issued, few positive developments have occurred in Malaysia's efforts to combat forced labor and human trafficking.

Although Malaysia committed to investigating and cracking down on trafficking after the discovery of the abandoned camps and mass graves in May 2015, there have been few results. Observers consider that Malaysia has failed to carry out its promises and conduct an effective investigation into its trafficking syndicates, and credible sources report that dozens of known traffickers continue to move and work freely within Malaysia with little fear of retribution.

In the aftermath of discoveries of mass graves at the abandoned trafficking camps in May 2015, thousands of trafficking survivors and refugees primarily Rohingya (a persecuted ethnic and religious minority from Burma) and Bangladeshi nationals were displaced and stranded at sea, causing a humanitarian crisis. Malaysia ultimately allowed survivors to disembark in its territory, however, hundreds of those survivors remain detained in Malaysia today, treated as "illegal migrants" and at risk of being re-trafficked.

Recent reports from Malaysia also continue to support something that has been widely known about the trafficking problem in Malaysia and documented in earlier TIP Reports: there are government officials complicit in the trafficking, whether at low or high levels, among immigration and police officers the very officials charged with enforcing the laws to combat human trafficking and forced labor.

Malaysia's TIP Report ranking this year should have been as it should have been last year Tier 3. Human rights, labor rights, and other civil society groups devoted to combating forced labor and human trafficking strongly supported a Tier 3 ranking for Malaysia this year and urged the State Department to return Malaysia to that ranking in the 2016 TIP Report.

The fact that the State Department resisted ranking Malaysia appropriately on Tier 3 this year is again significant for U.S. trade policy.

In the time between the issuance of the 2015 TIP Report and the 2016 TIP Report, TPP has been concluded and signed. TPP's provisions include commitments by all parties to adopt and maintain the five basic labor rights stated in the International Labor Organization's (ILO) Declaration on Fundamental Principles and Rights at Work, including the elimination of all forms of forced or compulsory labor. TPP also includes, for Malaysia specifically, an enforceable labor consistency plan that spells out detailed steps that Malaysia must undertake as part of its implementation of its TPP labor chapter obligations, including the obligation on eliminating all forms of forced or compulsory labor.

Just looking at the past 10 years' worth of TIP Reports, the country narratives for Malaysia depict a persistent and systemic failure to address a human tragedy on an enormous scale and consistent deficiencies in political will.

For example, TIP Report narratives for Malaysia since 2008 have made either indirect or direct reference to the extreme vulnerability of the Rohingya refugees to trafficking and exploitation within Malaysia, in large part because Malaysian law does not grant refugees formal status or the ability to obtain legal work permits. And every TIP report since 2006 has stated the need for Malaysia to increase its efforts to hold accountable complicit officials who profit from or are involved in trafficking and noted the lack of investigations, prosecutions, and convictions.

The narratives also describe Malaysia's efforts to protect or assist trafficking victims over the past 10 years. The efforts have been described as "minimal" (2006, 2007), "inadequate" (2008, 2009, 2011, 2012, 2014), or at best "modest" (2009, 2010). The narratives characterize Malaysia's overall victim protection efforts as having "negatively affected victims" (2012, 2013), despite commitments that Malaysia has made over the years to make improvements. In the 2015 report, the narrative states that Malaysia has "increased efforts" in this regard primarily because Malaysia had drafted and introduced amendments to its anti-trafficking law to expand victim protections, but even that narrative acknowledges that Malaysia's Parliament had not passed those amendments in the reporting period. In the 2016 report, the TIP report narrative describes Malaysia has having made "some" efforts to protect victims; Malaysia's Parliament passed the anti-trafficking law amendments. However, the narrative notes that necessary implementing regulations for those amendments had still not been adopted and formally published and these victim protections are still not in effect. TPP has no mechanisms to ensure that Malaysia's laws will go into full force and be effectively implemented in practice before there would be Congressional action.

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