Tackling human trafficking in Malaysia’s maritime zone

With a more globally connected economy and Malaysia's continued reliance on the maritime environment for trade and commerce, a safe and secure maritime zone has become critical to national security and economic well being. Into this equation comes the complex issue of human trafficking and how to deal with it across Malaysia's long coastline.

Cross border human trafficking or trafficking in persons has become a major concern for Malaysia, a coastal state with 4,675 kilometres of coastline, especially when parts of the coastline are relatively ungoverned (the so-called ungazetted routes) providing relatively cheap and inconspicuous movement for human trafficking syndicates.

Migration and geographical factors compound the difficulty of monitoring trafficking especially when taking into account the archipelagic feature of the areas surrounding Malaysia. Basic methods of entry are through boats, trawlers, ferries and ship.

The global financial crisis has contributed to large cases of seaborne illegal migration from economically poorer countries of Asia, such as Indonesia, Philippines, Cambodia, Vietnam, Myanmar and Laos, and increasingly, from war torn countries such as Sri Lanka, Afghanistan, to a relatively more prosperous one such as Malaysia. This is aggravated by demand for cheap labour in the plantation, agricultural, manufacturing and construction sectors of the Malaysian economy. There have been cases of Cambodian teenagers being forced to work aboard fishing vessels in the South China Sea to the illegal harvesting of human organs to high-class prostitutes plying their trade in the heart of Kuala Lumpur. Malaysia is now considered a leading country whereby global black market involving the trafficking of human beings is estimated to generate anywhere between US$13-32 billion a year.

There is a need to distinguish trafficking from smuggling. The key difference is that smuggling is voluntary while trafficking involves significant deception, coercion, exploitation and control of movement. Nevertheless, in reality, the boundaries between smuggling and trafficking are hazy as smugglers are often involved in trafficking and individuals who pay to acquire services of a smuggler may end up in exploitative conditions.

The 2006 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children which Malaysia ratified in February 2009 defines human trafficking as:

 "…the recruitment, transportation, transfer, harbouring or receipt of persons 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, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or service, slavery or practices similar to slavery, servitude or the removal of organs."

The Malaysian government was placed in the blacklist Tier 3 (countries in this category face sanctions related to non-humanitarian assistance or aid from the US government) by the US State Department in its 2007 and 2009 Annual Trafficking in Persons (TIP) Report, along with 16 other mainly African countries, for not fully complying with the US Trafficking Victims Protection minimum standards for the elimination of trafficking (though in June 2010 Malaysia was upgraded to Tier 2 Watch List) and not making significant efforts to do so. The second embarrassing incident occurred when the US Senate Committee on Foreign Relations following the TIP Report, launched its own investigations into trafficking allegations and extortion of Myanmar migrants/refugees in Malaysia along the Thai-Malaysia border. The report, Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand confirmed the trafficking and human rights abuses and worse, implicated Malaysian immigration officials, police and RELA (Volunteer Corps) personnel in the transboundary crime.

Seaborne human trafficking is a complex maritime challenge especially with fears that transnational criminal syndicates could be used to inflict maritime terror, with trawlers or ships loaded with ammunition. The issue is also rather complicated as crime is a violation of state laws, an affront to border sanctity as well as breach of human rights. However, it is first and foremost treated as national security concern by Malaysia.

On April 28, 2009, an overcrowded boat capsized off the coast of Johore causing the deaths of seven family members. Investigations revealed that the passengers were smuggled Afghans and Pakistanis (or trafficked, it was not ascertained). They were believed to be heading to Indonesia en route to Australia.

A survey in 2008 indicated 2,000 barter trade boats entered and left Malaysian and ferry boats transporting 4.8 million passengers in 1,500 ferry boats in the first six months of 2008. However, it is not known how many are trafficked or smuggled victims. Tenaganita, local human and migrant rights NGO, reported that 65 percent of trafficked persons in Malaysia end up as forced labour. It is possible the rest are destined for commercial sexual exploitation.

There is lack of reliable data on the maritime mode of human trafficking in Malaysia due to its illicit nature and reluctance of victims to make reports for fear of retaliation by the syndicates, and also fear of arrest by immigration officials as some entered the country illegally.

Two federal law enforcement agencies are tasked with patrolling Malaysia's maritime zone and securing the maritime borders through surveillance and security operations, namely the MMEA (Malaysian Maritime Enforcement Agency) and the Marine Operations Force (MOF – a branch of the Royal Malaysian Police formerly known as the Marine Police).

Role of enforcement agencies

Since security measures at ports, airports and land border crossings are becoming more robust and sophisticated, syndicates are increasingly considering the lengthy coastlines and uninhabited areas for unauthorised entry into Malaysia. Therefore, patrolling, monitoring and exerting unambiguous control over the maritime borders and sound maritime surveillance approaches are vital. Three federal law enforcement agencies help to patrol the Malaysian Maritime Zone with the assistance of local law enforcement organisations. They are the Royal Marine Police through the Marine Operations Force (MOF), Malaysian Maritime Enforcement Agency (MMEA- the national coast guard) and the Immigration Department.

The Marine Operations Force (MOF) is responsible for maintaining security of Malaysian waters from any undesirable threats and, prior to the formation of MMEA, was solely tasked with coordinating search and rescue operations in the Malaysian Maritime Zone and on the high seas. With the formation of MMEA in 2005 as the national paramilitary law enforcement agency (similar to coast guards but with greater powers of enforcement and scope), MOF is now in charge security of coastal shore line up to only 12 nautical miles that includes national and territorial waters, lakes, ponds, river mouths and estuary. There appears to be an overlap in duties and jurisdiction between MOF and MMEA but the MOF's main tasks are policing duties while the MMEA role was to enforce the country's maritime laws. The Deputy Prime Minister, Tan Sri Muhyiddin Yassin, has also publicly emphasised that by October 2011 the MMEA would be Malaysia's main maritime enforcement body in the country.

The MOF also admits to the difficulty in ascertaining if victims are indeed trafficked. The problem lies in distinguishing smuggled victims from trafficked, as sometimes smuggled victims can be considered trafficked if they are deceived or unable to pay the smugglers and have to serve as bonded labour to pay off the syndicates. Most are charged under the Immigration Act which carries six-month imprisonment followed by deportation.

Federal marine police commander senior Assistant Commander Dato Isa Munir said the force was closely monitoring human trafficking activities and had detained two syndicate heads under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 this year. On May 2010, the marine police detained 863 foreigners, mostly Indonesians, who came into the country illegally via the Straits of Malacca. In comparison, the authorities made 2,435 arrests from January to May 2009.

The MOF also stations boats in "hotspots" such as Port Klang, Port Dickson, Lumut, Pontian, Tanjung Piandang (Penang), Kuala Kedah, Pulau Sebatik, Kudat and Tawau. The boats are fitted with radars provided by Australian Coast Guards and have four to six personnel with night vision goggles. It is in the midst of deploying advanced radar systems to help detect infiltration in territorial waters to monitor maritime human trafficking operations. MOF also receives surveillance assistance from local police, Special Branch and air units, intelligence units, Customs, Immigration and Fisheries Department. The latter agencies provide early warning signals and information. In addition, top enforcement agencies around the world are sharing intelligence and collaborating to cripple the syndicates. MOF also receives assistance from Singapore Marine Police, the Indonesian navy and Thai coast guards.

MOF data indicates most human trafficking syndicates use Malaysia as a transit point. In fact, recently Assistant Commander Datuk Isa Munir asserted that syndicates had changed their modus operandi following a clamp down by law enforcement officials. Previously, syndicates smuggled asylum seekers via Kuala Lumpur International Airport or Changi airport before they are transported via boat from Pengerang in Johor into Indonesian waters. Now, however, the migrants or asylum seekers travel from Indonesian waters to Thai waters where the refugees are brought to Australia by boat.

Malaysian Maritime Enforcement Agency (MMEA)

The MMEA was formed in 2005 as Malaysia's statutory response to the threats of maritime terrorism and to effectively function as a coast guard. It is designed to be the sole maritime law enforcement agency to respond to the security of the waters around the ports and navigation routes and its major functions are to carry our air and coastal surveillance.

Due to the overlapping functions among the 11 maritime agencies, the MMEA was designed to streamline the operations and enforce maritime law. The national maritime law enforcement agency is responsible for anything within and beyond 12 nautical miles of the coast. There is clearly an overlap in terms of duties and jurisdiction with the MOF. In addition, the MMEA is "to receive and consider any report of the commission of an offence" and to "to stop, enter, board, inspect and search any place, structure, vessel or aircraft and to detain any vessel or aircraft". These powers are similar to the powers vested in the MOF to fight maritime crime and it is possible that overlapping of jurisdiction can infringe on law enforcement duties.

The MMEA conducts surveillance on areas that are prone to human trafficking activities such as Pengerang on Johor's east coast as its proximity to Indonesian islands makes it a favourite haunt for human trafficking syndicates. Most of the boats leaving Pengerang head for Batam, Karimun or Bintan. According to the MEMA southern region chief, Admiral Che Hassan Jusoh there are 15 secret routes used by syndicates to smuggle illegal immigrants along the Pengerang coast.

The MMEA also utilises Radar Sea Surveillance Systems along the coast facing Straits of Malacca. Top officials from MMEA reveal that trends indicate human trafficking syndicates relocating to Thailand due to aggressive surveillance and interdiction by MMEA. However, since the agency plans increase its staff strength from the current 3,000 personnel to 9,000 by 2011 apart from commissioning new bases in Labuan, Kudat and Lahad Datu fully equipped with airplanes, helicopters, ships and boats, it is expected that the MMEA would eventually emerge as the sole maritime enforcement agency within the next two years.

The MMEA does indeed have the powers to function as a paramilitary law enforcement agency and combat maritime crime. However, the legislative framework it is operating is less than satisfactory as the MMEA 2004 section16 states that the agency and relevant existing maritime agencies "shall closely coordinate, consult and liaise with each other and render to each other assistance for carrying out the provisions of the 2004 Act". The act makes references to other domestic legislation that concerns Malaysia's maritime zone. MMEA must have a solid legal foundation to carry out its functions and legislative reform is in order to iron out the overlaps and conflicts in terms of jurisdictions with other enforcement agencies.

Statistics indicate an elevated figure of foreign barter trade vessels, fishermen and passenger ships entering Malaysian waters using non-SOLAS ships (Convention on Safety of Life at Sea for Ships beyond 500DWT). These ships can violate security as they do not have a tracking device aboard and are not covered by ISPS enforcement regime. The MMEA must consider measures to identify the position of non-SOLAS ships.

The challenges facing Malaysia's maritime surveillance force have changed dramatically over the past decade and transformed the security environment into something more complex and uncertain. This new scenario highlighted by the growing cases of human trafficking, show that syndicates will inflict socio-political and economic damages through their criminal enterprise. Therefore, good management of border security is vital through advancing surveillance, biometrics, detection and information sharing technologies. Credible deterrence and increasing interdiction capabilities and capacity by maritime law enforcement agencies such as the MMEA, and the MOF are essential.

Since security measures at ports, airports and land border crossings are more becoming more severe and sophisticated syndicates are increasingly considering the lengthy coastlines and uninhabited areas for unauthorised entry into Malaysia. Therefore, patrolling, monitoring and exerting unambiguous control over the maritime borders and sound maritime approaches are vital. Parts of the coastline are relatively permeable, such as those along the borders of Thailand-Malaysia, Sabah-Philippines and Sarawak-Indonesia, must see increased security.

In fact, the Home Ministry recently said the government is looking at the pattern of migration and monitoring the influx of migrants to Malaysia particularly the long "porous" sea borders of Sabah and Sarawak with Indonesia and Philippines, which are exposed and difficult to control. The government is also in the midst of scrutinising proposals to use radar technology to detect the movement of migrants in Malaysia in efforts to efficiently monitor the border. This is definitely a move in the right direction.

Two strategic actions to achieve the above are urgent: Maximise Maritime Domain Awareness (MDA) and enhance regional cooperation. Domain awareness can provide early identification of potential threats and appropriate response. The MDA is the integration of Global Maritime Intelligence and Global Maritime Situational Awareness. Global Maritime Intelligence is the product of changing intelligence capabilities, policies and operational relationships used to integrate all available data, information, and intelligence in order to identify, locate, and track potential maritime threats. Global Maritime Situational Awareness on the hand results from the persistent monitoring of maritime activities for identifiable trends and anomalies.  It is nevertheless challenging. Malaysia's great length of shorelines, conceal and provide access points to the land. Therefore, integrating intelligence, law enforcement information and public intelligence is vital.

Various maritime agencies such as the Fisheries Department, Marine Department, and customs must cooperate with each other through channelling relevant information to a single body such as the MMEA to collect, fuse, integrate and disseminate timely intelligence and information. A robust maritime command and control system can be achieved through establishing this intelligence enterprise.

Securing Malaysia's maritime domain must also enlist the support of regional and international bodies as the issue of human trafficking could damage both regional and international relations. Increased economic interdependency and globalisation made possible by maritime shipping emphasises the need for coordinated approach through patrols and intelligence/information sharing. Coastal security must be enhanced and a coordinated arrangement that involves vessel identification, identity for fishermen and installation of chain of coastal radars.

Restrictive human trafficking measures implemented by other countries in the region will reduce the amount of trafficking in Malaysia. Improved transparency in the registration of vessels and identification of ownership, cargoes and crew of the multi-flag vessels are essential. Syndicates are exploiting these weak regulations and enforcement by re-registering vehicles under fictitious corporate names, renaming and repainting vessels. New Initiatives with International Maritime Organisation and the World Customs Organisation will ensure reduced threat from syndicates, as information and intelligence gathering from them would help regional nations in interdiction efforts. Reinforcing information exchange among agencies of neighbouring countries is essential to evaluate risk for vessels. Monitoring of illegal movement of boats and ferries can help the law enforcement officials to intercept trafficking syndicates. In addition, small vessels should be made compulsory to obtain Port clearance (document for entry and exiting a port) making, monitoring illegal vessels easier.

Shared understanding of threat priorities will help unify actions and plans. Malaysia, Indonesia and Australia are the main targets of human trafficking syndicates. Malaysia is a source, transit and destination country, while Indonesia is a source and transit country; syndicates use Malaysia and Indonesia as transit countries for victims destined to Australia. Malaysia has conducted talks with Indonesia to develop a framework of cooperation and monitor the sea by deploying high-speed mobilisation boats and patrol boats. By regulating and monitoring movement of boats and ferries and also checking immigration status of passengers at ports, influx of smuggling and trafficking can be contained.

Malaysia should work especially closely with source and transit countries, such as Thailand, Indonesia, Afghanistan, Cambodia, Vietnam and Iraq to promote development of cooperative mechanism to counter this threat that span national boundaries and jurisdiction. It can offer economic assistance to these countries to boost maritime security. However, eradicating human trafficking does not rest solely on tighter border control and surveillance. The latter is slowly giving way to the expansion of fake document industry and the entry of irregular migrants via legal means who are later exploited and forced into servitude and debt bondage.

Corruption among low-level officials in facilitating acquiring of fake identity cards in Sabah has been uncovered. In addition, many migrants are duped into buying fake employment documents.

The author agrees with the perspective of international Organisation for Migration (IOM) that human trafficking and human smuggling cannot be effectively contained by tightening border security and enacting tougher anti trafficking laws alone. Syndicates are increasing in sophistication and volume and capable of finding alternative routes to ply their trade. Therefore, root causes of trafficking must be addressed. Poverty is the driving force here.

It is likely to take decades if efforts are limited to fighting trafficking at the border level only. Better bilateral and multilateral economic ties and enhancing trade relations between Malaysia and source countries in the region would go some way in addressing conditions in the latter countries. Malaysian companies must be encouraged to invest in Cambodia, Vietnam, Myanmar and other poorer ASEAN countries to build up the economy and create more employment opportunities. This would prevent the poor from remote regions being deceived into promise of jobs in relatively rich destination countries like Malaysia.

Addressing the systematic structural factors that give rise to exploitative labour practices is crucial. Anti-trafficking laws must provide opportunities for victims to become regular migrants with decent wages and working conditions. In fact, the International Labour Organisation (ILO) believes that legal labour migration channels contribute to both reducing trafficking in children and women and the smuggling of migrants. The International Organisation for Migration (IOM) also agrees that orderly migration management is important to protect the state against unauthorised migration that violates state security.

In conclusion, good border management demands that security should not be pitted against economic wellbeing. The Malaysian government must facilitate and defend movement of people and goods across the nation's border and ensure smooth flow of shipping as it is a major trading nation and our economy is inextricably linked with the oceans for commerce and resources. This should be done while screening out illegals. Malaysia's prosperity and security depend on effective handling of the human trafficking challenge.

Pooja Theresa Stanslas