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Is the ISA the answer to human trafficking?

Corrected on 25 Oct 2010, 5.35pm

THREE years ago, amid much fanfare to prove Malaysia’s credentials to the international community, the Barisan Nasional (BN) government enacted the Anti-Trafficking In Persons Act 2007 (Atip).

The law gives enforcement officers the power to arrest anyone they reasonably suspect of committing human trafficking offences, even without a warrant. It also gives them the power to detain suspects for questioning. Furthermore, it provides for imprisonment of up to 20 years and fines of up to RM500,000 for serious trafficking offences. Indeed, Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil declared that the law gave “clout to law enforcers”, “protects victims and informants”, “provides tough penalties”, and was “very comprehensive in its reach”.

Clearly the police and the home minister think otherwise. Why else would the police use the Internal Security Act (ISA) to arrest nine persons for alleged human trafficking? Doesn’t the police believe in the efficacy of a law which promised “clout”, “tough penalties” and “comprehensive reach”? Isn’t the home minister on the same page as his other colleagues in government? Or was the (corrected) Atip simply a public relations exercise?

“No significant commitment”

Malaysia has been trying hard to improve its anti-trafficking record in the international arena. In 2009, Malaysia was downgraded by the US State Department in their Trafficking in Persons Report (TIP) to Tier 3, which is the lowest category for anti-trafficking efforts. Tier 3 countries were those found “not making significant efforts to comply with minimum standards” under the US Victims of Trafficking and Violence Protection Act. Other than Malaysia, other Tier 3 countries in the report were North Korea, Niger and Papua New Guinea.

Chagrined, the Malaysian government went into damage control, stepping up enforcement on Atip, and organising public awareness campaigns and training for relevant government officers. This led to Malaysia being upgraded in the Trafficking in Persons Report 2010 from Tier 3 to the Tier 2 Watch List. (Interestingly, many of the Malaysian traditional media reported Malaysia as being upgraded to Tier 2, which is a higher category than the Tier 2 Watch List.)

Although Malaysia still falls short of minimum standards, the 2010 TIP report acknowledges that we are now making “significant efforts” to comply. However, Malaysia is still listed as a trafficking destination. A host of issues remain unresolved, including insufficient protection of trafficking victims and reported collusion between police and offenders.

The report made several recommendations for Malaysia to improve its anti-trafficking efforts holistically. Among others, these include increasing investigation and prosecution efforts.

ISA?

How did our authorities conclude that detaining suspected trafficking offenders without trial was a step forward in our anti-trafficking efforts? How does using the ISA increase investigation and prosecution efforts?

Mind you, no less than the newly appointed Inspector-General of Police Tan Sri Ismail Omar believes that using the ISA “to assist police investigations” shows that the police are working hard in fighting human trafficking.

Logo for a United Nations initiative against human trafficking (Wiki commons)

Logo for a United Nations initiative against human trafficking (Wiki commons)

The ISA has long been known to be a draconian law and a human rights violation. It allows for suspects to be detained indefinitely without trial at the home minister’s sole and unquestionable discretion. How can it be right that in trying to eradicate one form of human rights abuse, our authorities perpetuate another form of abuse?

Yes, the US State Department report did recommend that Malaysia step up investigations, prosecutions and convictions, especially of public officials involved in trafficking. However, it did not suggest that Malaysia spirit away alleged offenders and keep them locked up indefinitely to “assist in investigations” with no known evidence, no public trial and no right to defence.

Holistic approach

Preventing human trafficking requires a holistic approach. The TIP report talks about the 3Ps – prevention, prosecution and protection – and how focusing on just one aspect will not be effective in reducing human trafficking.

Prevention involves, for example, ensuring proper procedures are in place for migrant workers to enter the country, and that these procedures are properly enforced. It would also involve investigations into any reports of collusion between the police, immigration officials and the trafficking offenders.

Successful prosecutions would necessarily require thorough investigations leading to evidence that would result in the conviction of offenders in a proper court of law, not somewhere in Bukit Aman or Kamunting, where no case is ever proven against an alleged offender.

Protection would mean ensuring trafficked victims are not traumatised all over again once rescued. Government or state-sponsored shelters would be one way to protect trafficked survivors.

No shortcuts, please

Arresting nine individuals, no matter how high up the trafficking hierarchy, no matter how dangerous, will not make trafficking go away. If holistic measures are not pursued, trafficking will persist, and these ISA arrests will merely be eyewash.

Hishammuddin

Hishammuddin

Additionally, what is stopping the authorities from prosecuting these alleged offenders in an open court? Why couldn’t they charge them under the Atip instead, now that it has been enacted? What is the police trying to hide? And just why is Home Minister Datuk Seri Hishammuddin Hussein allowing the police to get away with these arrests?

In calling for the ISA to be abolished in a 26 July 2010 statement, the Bar Council said the Act only led to “lackadaisical investigations, misuse and abuse of the law”. The recent ISA arrests only lend credence to that statement. After all, an efficient police force should have the necessary evidence to have offenders prosecuted and convicted in court. And a government that allows such arrests to continue only sends a message that it is comfortable with sloppy police work.

The arrests also make the promises by Prime Minister Datuk Seri Najib Razak about the ISA when he assumed office in April 2008 look like cheap candy. Surely Malaysians deserve better than an ineffective police force and empty promises, especially when human lives are at stake.

Ding Jo-Ann believes it’s wrong to try and right a wrong with another wrong.

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4 Responses to “Is the ISA the answer to human trafficking?”

  1. Stanley says:

    There is something fishy about invoking the ISA on these people involved in human trafficking. What can’t they be investigated as criminals through the due process of the law?

    It seems like these people are locked up under the ISA so that they cannot reveal more about their dirty deeds. Why not allow these evil deeds to be revealed instead of locking them up under the draconian law? Is what they have to say going to prove embarrassing to the government? Are they actually doing it in collaboration with politicians?

  2. Daniel Lo says:

    Indeed there are many questions which have been asked and have yet to be answered with regard to the use of the ISA, especially when Atip covers prevention, protection and prosecution. However, the same can be said of so many other criminal offences that exist, but which for “expedience” the ISA is used.

    Moreover, in the case of human trafficking, it is important to ask: WHERE ARE THE VICTIMS?!

    By definition, if there are traffickers, there are victims of trafficking. Have they been identified, rescued, protected, cared for, repatriated if necessary? These questions need to be asked of the police force, which is the lead department to investigate and prosecute trafficking offences. The Ministry of Home Affairs should also be questioned as it is responsible for the Council for Anti Trafficking in Persons; as well as the Ministry of Women’s Affairs, as they are responsible for providing care and protection for victims of trafficking under Atip.

  3. 2nd class says:

    The Pakatan Rakyat, especially the DAP, seems to be quiet on this. Perhaps they, too, practise double standards when it comes to the use of the ISA on enforcement officers.

    • tebing tinggi says:

      [We will never know if Pakatan, especially the DAP, is being fair in their political agenda. Normally they would highlight the faults of others but never admit to their own.]


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