Despite the seriousness of the crime, it can be difficult to put human traffickers behind bars. here's why

KUALA LUMPUR, May 27 — Malaysia has no shortage of laws to combat human trafficking, but why is it so difficult to put a human trafficker in jail?

Haezreena Begum Abdul Hamid, a criminologist at Universiti Malaya, said proving in court that a person was trafficked carries many challenges due to the nature of this calculated and complex crime.

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Ironically, the vulnerability of the victims also constitutes an obstacle to putting the perpetrator in prison.

“We have a lot of laws, but because trafficking is a very complex issue, it is sometimes difficult to understand.

“Not only in Malaysia but all over the world, the conviction rate is very low. In terms of prosecution, we have a very high threshold to prove trafficking,” said Haezreena, who is also vice dean (graduate studies) from the Faculty of Law. .

She warned that taking down traffickers is nothing like the action thriller movies we see. In reality, many circumstances lead to trafficking.

Usually, victims come to Malaysia to do honest work, but end up being exploited or deceived by their employers or agents; some of them are prisoners of debt bondage and other “contracts”.

In Malaysian courts, the main witness to a human trafficking crime is the victim.

Even with everything the victim can testify to, Haezreena said a trafficking case often slips through the cracks because the means of trafficking are difficult to prove.

Before the court, the prosecution will have to prove the elements which distinguish voluntary work from human trafficking: the act (which may be recruitment or movement), the aim of the trafficking and the means of trafficking which consist usually through coercion, force, exploitation of vulnerability, deception or the like.

“The burden of proof lies on the person who claims, for example, that the victim wants to prove coercion, how can we prove coercion? How can we also prove psychological harm? Witnesses must show that the person was coerced, or forced or undue pressure was exerted.

“And who can testify? Just the witnesses themselves,” she said, referring to the victim, emphasizing that to strengthen the evidence in court, corroboration of evidence is necessary but difficult to obtain because only the people can testify to what really happened. are normally carried out to the victim's country of origin.

“If she's being sexually exploited, there might be condoms or lube or whatever, but that's just additional evidence. It doesn't directly show that they were trafficked,” explained the law professor.

However, traffickers in Malaysia often plead guilty to 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 the threshold should be lowered to ensure justice is served to victims.

She acknowledged, however, that extensive work and discussions between the Attorney General's Office, the Bar Council and others are needed before making this a reality.

In cases where the trafficker requests a trial, there have been cases where the proceedings lasted almost two years, forcing the victim to stay in Malaysia until the trial was over.

In addition to being trafficked, being confined in a shelter for extended periods would undoubtedly cause victims distress, Haezreena said.

But the situation in Malaysia has improved.

“Now the victims get RM120 a month at the shelter. At least they don’t go back empty-handed,” the academic said.

She explained that for many victims, returning to their country penniless poses a social stigma, as their families expect them to return with something.

For some victims, their families paid high fees just to have them recruited and brought to Malaysia to work, without knowing that they would end up being trafficked.

Interestingly, there have been fewer reports of human trafficking in Malaysia since the Covid-19 pandemic, but the reason remains unclear.

Haezreena said this could be because some borders are still narrow and there is less demand for workers, but she also warned that cases could simply have gone unnoticed.

Haezreena's two books ― Handbook on Human Trafficking A Legal and Criminological PerspectiveAnd Guide to human trafficking ―, available in English and Malay, will be launched on June 4.

The books are intended to be a point of reference for scholars, students, law enforcement and others when discussing the subject or victims.