by Emily Ho
Reading the Malaysia chapter of the recent 2020 Trafficking in Persons Report by the US State Department, I couldn’t help but notice a recurring concern in its Prioritised Recommendations and observations on Prosecutions. It is that there is a lack of familiarity and understanding of the national legal framework on human trafficking. This, and other factors such as alleged corrupt practices, have led to the result that “[the] government prosecuted and convicted fewer traffickers” in this reporting period (October 2019 to March 2020): twenty prosecutions and twenty convictions, compared to fifty prosecutions and fifty convictions in the last reporting period. Several of the Report’s prioritised recommendations can be traced back to this lack of familiarity; for example, it is recommended that we “[provide] improved guidance to prosecutors on pursuing trafficking charges, and increase judicial familiarity with the full range of trafficking crimes”.
In this Article I briefly consider the shortcomings of our current law against modern slavery, making it difficult to gain a competent grasp of it for the purposes of investigation and prosecution. Then I set out a vision for a more robust domestic legal regime against modern slavery: a unified statute encompassing the different forms of modern slavery in one code.
Forms of modern slavery
The term “modern slavery” encompasses four principal forms of abuse: slavery, servitude, forced or compulsory labour, and human trafficking. Traditionally, the former three are bundled together. They are forms of abuse that are very much like each other but differ in degree, forming a scale or “gradation” of modern slavery forms :
- Slavery: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Art.1(1), 1926 Slavery Convention, which Malaysia is not party to, but which forms, internationally, the basic legal concept of slavery). This includes de jure and de facto ownership .
- Servitude: a “particularly serious denial of freedom” involving coercion and the victim’s subjective sense of the permanence of their situation, as suggested by the European Court of Human Rights in Siliadin v France and Chowdury v Greece; a degree more grave than forced labour
- Forced labour: “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” (Art.2 1930 Forced Labour Convention, to which Malaysia is a party).
Human trafficking, on the other hand, is considered separately because it uniquely includes the element of the migration of individuals from one place to another. The UN’s 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons (aka the “Palermo Protocol”) sets out the definition in Art.3(a): “the recruitment, transportation, transfer, habouring or receipt of persons [i.e. an act], by means of the threat or use of force or other forms of coercion, 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 [i.e. a means], for the purpose of exploitation [i.e. a purpose]”. This is often understood as a three-piece formula of act + means + purpose to establish trafficking.
In the UK, which is considered to have one of the best legislative codes addressing modern slavery, has enacted its criminal provisions and statutory protective measures concerning these four categories of modern slavery into a single Act of Parliament: the Modern Slavery Act 2015. Its offence provisions, for example, capture modern slavery forms in two neat sections:
“Section 1: Slavery, servitude and forced or compulsory labour
(1) A person commits an offence if—
(a) the person holds another person in slavery or servitude and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude, or
(b) the person requires another person to perform forced or compulsory labour and the circumstances are such that the person knows or ought to know that the other person is being required to perform forced or compulsory labour.
Section 2: Human trafficking
(1) A person commits an offence if the person arranges or facilitates the travel of another person (“V”) with a view to V being exploited.
(2) A person may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.”
These provisions form a clear and cohesive criminal response to modern slavery, easily studied and understood by law enforcers and prosecutors.
In contrast, domestically, the only purpose-enacted regime against modern slavery is the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (“ATIPSOM”). It is commendable that we do have such a statute, but it is hard to ignore that since its enactment in 2007, Malaysia has still not risen above the Tier 2 Watch List category. Indeed, in 2009 and 2014, we even fell into the Tier 3 category. Besides that Act, slavery, servitude, and forced labour are addressed only in patchy fragments of law, as hard to comprehend as puzzle pieces of a Picasso drawing. As collated by the Antislavery in Domestic Legislation project:
- Slavery: “Provisions related to slavery are found in the Federal Constitution, which prohibits slavery at article 6, and the Penal Code which prohibits buying or disposing of any person as a slave (s 370), habitual dealing in slaves (s 371), and kidnapping or abducting in order to subject a person to slavery (s 367).”
- Servitude: “There appears to be no legislation in place in Malaysia which prohibits servitude, although article 5 of the Constitution prohibits deprivation of personal liberty except in accordance with the law.”
- Forced labour: “Provisions related to forced labour are found in the Constitution, which prohibits forced labour at article 6 and the Penal Code which criminalises unlawful compulsory labour.”
Apart from this piecemeal patchwork of law, slavery, servitude, and forced labour may also “form an element of an offence of trafficking under [ATIPSOM]”, but are not, in their own right, addressed or criminalised by it.
It is suggested that this domestic legal collage of modern slavery law should be unified into one statute criminalising slavery, servitude, forced or compulsory labour, and human trafficking all in one Act, along with statutory measures to protect victims of these offences. This would (1) make for a cohesive code more easily understood by law enforcers and prosecutors, and (2) properly emphasise the exploitative dimension of human trafficking to prevent the excessive focus on the (often forced or inadvertent) immigration transgressions of the victims.
To be continued in Part II.
Emily Ho is a recent first-class graduate in law from the University of Cambridge, with a keen interest in human rights law. She is currently studying for the UK Bar exam, and will enrol as a LLM student at Harvard Law School next August. One of her passions is combatting modern slavery in Malaysia, and to that end she has created a webpage compiling information about modern slavery in Malaysia in words that anyone can understand.
Find her at Facebook – https://www.facebook.com/emilyho99/