MALAYSIA SIXTH ANNUAL TRAFFICKING IN PERSONS REPORT

UNCLAS SECTION 01 OF 13 KUALA LUMPUR 000372

SIPDIS

SENSITIVE
SIPDIS

DEPT FOR G/TIP, G, INL, DRL, PRM, IWI, EAP/RSP

E.O. 12958: N/A
TAGS: PHUM KCRM KWMN SMIG KFRD ASEC PREF ELAB MY
SUBJECT: MALAYSIA SIXTH ANNUAL TRAFFICKING IN PERSONS REPORT

REF: A. STATE 3836


B. 05 KUALA LUMPUR 3792


1. (SBU) SUMMARY AND INTRODUCTION: Malaysia is a destination
and, to a lesser extent, a transit country for men and women
trafficked for the purposes of sexual exploitation and forced
labor. Women from the People's Republic of China, Indonesia,
Thailand, Philippines and Vietnam are trafficked to Malaysia
for commercial sexual exploitation. Additionally, some
economic migrants from countries in the region who work as
domestic servants and as laborers in the construction and
agricultural sectors face exploitative conditions in Malaysia
that meet the definition of involuntary servitude.


2. (SBU) There are no reliable statistics revealing the total
number of women trafficked into Malaysia. Foreign embassies
and NGOs report that in 2005, at least 500 trafficking
victims were rescued and repatriated. During the first nine
months of 2005, over 4,600 foreign women were arrested and
detained for prostitution, compared with over 5,700 arrested
during all of 2004. According to the government-funded
National Human Rights Commission (Suhakam),a significant
number of these women were probable TIP victims.


3. (SBU) The government recognizes that trafficking is a
problem and has taken significant steps to combat it. Senior
officials have expressed their support for anti-TIP programs,
including comprehensive anti-TIP legislation and TIP victim
identification training for police and immigration officials.
In November 2004, the government signed an ASEAN declaration
calling for greater regional cooperation against trafficking
in persons. In December 2004, the government hosted the
signing of a Mutual Legal Assistance Treaty with eight other
ASEAN countries to improve regional cooperation and
prosecution of transnational criminal activities including
trafficking. Also in December, the women's affairs minister
announced her intent to establish of the first shelter
specifically for foreign women who are victims of trafficking.


4. (SBU) Government implementation of these steps has lagged,
however. According to Suhakam, the government has not
significantly improved its anti-TIP actions since late-2004.
Malaysia lacks comprehensive anti-trafficking legislation
that would enable officials to identify and shelter victims,
and to prosecute traffickers under a single criminal statute.
The government has not taken the legal steps necessary to
establish the government-run shelter announced by the women's
minister. While final statistics for 2005 are not yet
available, convictions of traffickers under the penal code
are down from the previous year.


5. (SBU) The government should draft and enact a
comprehensive trafficking law that recognizes trafficked men
and women as victims and provides them with shelter,
counseling and repatriation assistance. The government
should also systematically screen foreign prostitutes and
illegal migrants, in order to identify and provide care for
trafficking victims in their midst. In addition, the
Ministry of Women, Family and Community Development (MWFCD)
should fulfill its December 2004 undertaking to establish one
or more dedicated shelters for foreign trafficking victims.


6. (SBU) The Embassy has urged the MWFCD to establish one or
more shelters and stronger legal protections for victims of
trafficking. We are encouraging the ILO and other
international NGOs to be more proactive in TIP programs in
Malaysia and are partnering with local NGOs to expand the
infrastructure and resources required to respond effectively
to the needs of victims. We have also offered to provide the
USG's TIP victim identification expertise to police and
immigration officials. The response from the Malaysian
government to these proposed initiatives has been positive
and cooperative.


7. (SBU) We believe that the government of Malaysia does not
fully comply with the minimum standards for the elimination
of trafficking. The Malaysians have made significant efforts
in previous years to bring themselves into compliance with
minimum standards. However, they have not provided evidence
of increasing efforts to combat severe forms of trafficking
over the previous year. We therefore recommend that Malaysia
be moved from Tier 2 to Tier 2 Watch List in the 2006
Trafficking in Persons Report. The placing of Malaysia on
the Watch List should assist us in communicating to the
government of this moderate, Muslim-majority democracy the
importance with which we regard the need for it to continue
to address its trafficking issues. End Summary and
Introduction.


8. (U) Embassy's submission for the 6th Annual Trafficking in
Persons (TIP) Report for Malaysia follows. Responses are
keyed to paras 21-25 of ref A. Embassy's point of contact
for TIP is political officer Jeffrey Hilsgen (phone:
603-2168-4831, fax: 603-2168-5165, email:
hilsgenjg@state.gov). Per the request in para 20 of Reftel,
to date the Embassy has spent the following time on the TIP
report: FS-1: 12 hours; FS-4: 75 hours; FSN: 10 hours.


9. CHECKLIST (PARA 21)
--------------


A. A. (SBU) Malaysia is a target destination for crime
syndicates trafficking women and girls into the country for
the sex trade. To a much lesser extent, Malaysia is also a
country of origin and transit. While there are no reliable
statistics revealing the total number of women trafficked
into the country, estimates can be made drawing from
different sources. Foreign embassies and NGOs report that in
2005, at least 500 trafficking victims were rescued and
repatriated. During the first nine months of 2005, 4,678
foreign women were arrested and detained for suspected
involvement in prostitution, compared with 5,783 arrested
during all of 2004. Chinese nationals accounted for the
largest percentage of such arrests (more than 40%),followed
by nationals of Indonesia (25%),Thailand (17%) and the
Philippines (10%). According to the government-funded
National Human Rights Commission (Suhakam) and involved NGOs,
a significant number of these women were probable TIP
victims.

(SBU) While little verifiable information exists regarding
the number of Malaysian women trafficked to other countries,
the GOM claims that no Malaysian women were trafficked
outside the country in 2004 (the latest period they
reviewed). GOM statistics state that 20 Malaysian women were
arrested in 2004 for immigration violations in various
countries. According to the GOM, none of the women claimed
to be trafficking victims or gave any indications they had
been trafficked. Our conversations with local NGOs indicate
that fewer than 100 Malaysian women are trafficked abroad
each year, and that the number has declined in recent years.

(SBU) Our sources of information on TIP in Malaysia include
the Royal Malaysia Police (RMP),the Attorney General's
Chambers, the Immigration Department, the Ministry of Home
Affairs, the Ministry of Internal Security, the Ministry of
Foreign Affairs (MFA),the Ministry of Women, Family and
Community Development (MWFCD),the Malaysian Chinese
Association (MCA, an ethnic-Chinese political party in the
ruling coalition),Suhakam, several foreign diplomatic
missions, and a number of local NGOs, including the Malaysian
Bar Council. These sources were forthcoming with credible
information on TIP.


B. (SBU) Malaysia is a destination and, to a far lesser
extent, a transit country for men and women trafficked for
the purposes of sexual exploitation and forced labor.
Collectively, as many as several thousand women from the
People's Republic of China, Indonesia, Thailand, Philippines
and Vietnam are trafficked to Malaysia for commercial sexual
exploitation. Additionally, some economic migrants from
countries in the region who work as domestic servants and as
laborers in the construction and agricultural sectors face
exploitative conditions in Malaysia that meet the definition
of involuntary servitude.

(SBU) A small number of Malaysians are trafficked annually to
other countries, though recent data suggest that the number
has decreased to negligible levels. According to NGO
sources, young Malaysian ethnic Chinese women are the primary
targets of traffickers recruiting prostitutes in Malaysia.
For religious and/or cultural reasons, trafficking of ethnic
Malay or ethnic Indian women is infrequent. According to
most reports, Malaysian Chinese women are lured by word of
mouth and by personal contacts connected to mainland Chinese
criminal syndicates with international connections. Promises
of high-paying jobs and freedom from the restrictions of
Malaysia's generally conservative society are the main
motivating factors.

(SBU) During meetings with senior USG representatives in
2005, Malaysian government officials expressed strong support
for combating trafficking in persons. While the government
views the issue of trafficking both as a stand-alone problem
and as part of the larger challenge of border security and
illegal migration, Malaysia does not fully comply with the
minimum standards for the elimination of trafficking.
According to the government funded National Human Rights
Commission (Suhakam),the government has not significantly
improved its anti-TIP actions since Suhakam's publication in
January 2005 of a national plan of action to combat
trafficking. The government has taken steps to combat
trafficking and has a broad array of criminal laws available
to it to deter and punish traffickers, but Malaysia lacks
comprehensive anti-trafficking legislation that would enable
officials to identify victims, shelter them, and prosecute
traffickers under a single criminal statute. Compared to
2004, prosecutions and convictions of traffickers under the
penal code declined during the first nine months of 2005.

(SBU) The majority of persons trafficked into Malaysia for
sexual exploitation come from China, Indonesia and Thailand,
with smaller numbers coming from the Philippines, Vietnam,
India and Cambodia, Burma and Laos. Anecdotal evidence
indicates that numbers of victims coming from neighboring
ASEAN countries have remained relatively constant over the
last few years. The number and patterns of victims coming
from source countries tend to reflect GOM immigration and
visa policies. For example, China has grown as a source
country in recent years due to a more liberal Malaysian visa
policy that reflects growing economic ties and GOM efforts to
encourage tourism and university enrollment from Chinese
students. China has become the largest and fastest-growing
source country for prostitutes in Malaysia; many of these
Chinese women and girls are likely TIP victims.

(SBU) The Royal Malaysia Police (RMP) compiles statistics on
arrests of foreign women with suspected involvement in
prostitution, broken down by nationality. The Immigration
Department's enforcement division also collects data on
trafficking cases. Malaysian authorities do not adequately
distinguish illegal migrants from trafficking victims. Law
enforcement officials assert that the great majority of the
foreign women arrested for prostitution in Malaysia entered
the country voluntarily and with valid travel documents.
However, surveys by Suhakam and interviews with Indonesian,
Thai and Philippine embassy officials indicate that as many
as fifty percent of foreign women arrested for prostitution
are possible trafficking victims. According to the Thai
embassy's anti-TIP officer, nearly all of the Thai women
arrested for prostitution claim to be TIP victims during
interviews conducted by embassy officials.

(SBU) To avoid detection by law enforcement authorities,
trafficking victims engaged in prostitution are often
confined to the premises of their establishments, whether it
is a place of entertainment or a privately owned apartment or
home. Some women are taken out under strict supervision to
meet customers at hotels or private residences. Trafficking
victims are kept compliant through involuntary confinement,
confiscation of travel documents, debt bondage, and physical
abuse or threat of abuse, according to NGO representatives,
academics, and foreign consuls.

(SBU) In terms of prevention, in 2002 and 2003 the government
took steps to toughen the criteria for young foreigners
seeking student visas, to monitor individuals with student
visas more carefully to ensure they were actually attending
school, and to scrutinize more closely young foreign women
entering the country on special two week "social passes." It
has also stepped up border detection for smuggling, illegal
migration, and drug and people trafficking.

(SBU) There is no evidence of widespread tolerance or
complicity in TIP by government authorities, though
accusations of more general corruption, particularly at the
local police and immigration levels, exist. Foreign
diplomatic missions report good cooperation on TIP from law
enforcement authorities at the federal level, but some NGOs
have alleged that outside of Kuala Lumpur they have received
less cooperation. Several NGOs report that that police
cooperation with NGOs and other groups against traffickers
has improved.


C. (SBU) Government resources are overwhelmed by the sheer
magnitude of illegal migrants entering the country. Analysts
estimate that over one million illegal migrants live in
Malaysia. Law enforcement agencies lack adequate resources
to deal with the influx, and criminal syndicates have been
quick to exploit this weakness. TIP victims are lost in the
crowd of illegal migrants from China, Indonesia and Thailand.
The Indonesian embassy estimates that only a small minority
of the 70,000 Indonesian workers in Sabah are legally
registered with the GOM. Immigration authorities say they do
not have the manpower or language resources to question and
distinguish trafficking victims from illegal migrants, or to
properly assist them when they are identified. The NGO
community is small, poorly funded, and often does not have
the capacity to provide for victims even when the police seek
their assistance.


D. (SBU) Suhakam in 2004 conducted a comprehensive review of
Malaysia's response to TIP. A 159-page report published in
January 2005 included interviews with victims, police,
immigration, prison authorities, ministries involved in TIP,
the Attorney General, foreign embassies, NGOs and IOs. The
report called for wide-ranging measures to combat trafficking
and a more human rights-centered approach for protecting
victims. The report was widely publicized in the local media
and generated positive commentary from the public, NGOs and
government officials. The state-influenced media gives
extensive coverage to law enforcement raids against brothels,
massage parlors, and other locales where foreign women and
their pimps have been arrested for suspected involvement in
prostitution. The government does not systematically publish
detailed statistics about its arrests, prosecutions and
convictions of pimps and traffickers. The GOM has provided
this and related information to the Embassy upon request. The
government has also provided a detailed written response to
our annual trafficking in persons report.


10. PREVENTION (PARA 22)
--------------


A. (SBU) In 2004 the government signed the ASEAN Ministerial
Declaration against Trafficking in Persons. Government
officials regularly acknowledge that Malaysia is a
destination and transit country and assert that they are
committed to combat TIP comprehensively. They view
trafficking as a problem connected to organized crime,
prostitution, smuggling and illegal migration, and recognize
that many young foreign women involved in prostitution in
Malaysia are victims of TIP. However, some also assert that
many prostitutes working in Malaysia are here out of choice
and that these women should be prosecuted as such and
deported as illegal migrants. Government officials have
expressed concern that some women willingly involved in vice
claim to be TIP victims when arrested. The government
acknowledges that it has difficulty in distinguishing TIP
victims from foreign sex workers who entered Malaysia
willingly, as many of these women do not speak Bahasa or
English and choose not to file charges against their
traffickers.


B. (SBU) The RMP, the Immigration Department, the Ministry of
Home Affairs, the MWFCD, the MFA, and the Attorney General's
office are the government agencies involved in
anti-trafficking efforts. Suhakam, which is funded by the
government, and the MCA, the second-largest party in the
governing coalition, are also active in anti-TIP efforts.


C. (SBU) MCA publishes warnings in its Chinese-language
publications and makes public statements to caution potential
victims about overly lucrative job offers abroad. The MCA
reported that the number of Chinese victims seeking
assistance from its offices declined to 39 in 2005, compared
with 56 in 2004 and 75 in 2003. The government has not
directly sponsored anti-trafficking campaigns.


D. (SBU) The government supports some trafficking prevention
programs. Currently, the MWFCD operates "rehabilitation"
homes for women and girls (under 18) who have been determined
by the courts or their families to be at risk of engaging in
prostitution or other vice activities.

(SBU) Malaysian women comprise more than half of the
university student population, account for 44% of the
nation's labor force, and hold significant high-profile
positions in government, NGOs and the private sector. In
2004, the Ministry of Women's Affairs and Family Development
was merged with the Ministry for Social Welfare to create an
expanded Ministry of Women, Family and Community Development.
The women's affairs minister secured passage in August 2001
of a constitutional amendment barring sex discrimination. In
2004, a women NGO activist who maintains a shelter for abused
women and TIP victims was appointed to the royal commission
on police reform.

(SBU) In 2004, Suhakam drafted a TIP national plan of action
with support from the IOM. Among other things, the plan
recommended that the government fund shelters for foreign TIP
victims that include reintegration programs. In December
2004, the women's affairs minister announced the cabinet's
approval to open a shelter specifically for "foreign women
who are victims of trafficking." Prime Minister Abdullah
attended the announcement, signaling his support. The
women's minister subsequently informed us that amendments to
existing laws, or a new comprehensive anti-TIP law, had to be
enacted prior to government establishment of a TIP victim
shelter; current laws do not distinguish between TIP victims
and illegal migrants engaged in vice activities. In 2005,
the MWFCD discussed launching a nationwide campaign in
collaboration with various NGOs to increase public awareness
on trafficking through seminars, workshops and dissemination
of brochures. The campaign is supposed to target youths and
school children and serve as a capacity-building program for
law enforcement and policy makers to heighten their awareness
of the problem. It has not yet been launched.


F. (SBU) Government and NGO cooperation on trafficking is
uneven and ad hoc, both because the government does not have
established procedures for handling trafficking victims and
because NGOs do not have the resources to care for more than
a few victims at any given time. In some cases victims are
released into the custody of their embassies, which maintain
limited shelter capabilities. In other cases, police ask
private shelters run by NGOs to accept TIP victims. Foreign
embassies and several NGOs report good cooperation with
police and immigration officials in securing immigration
passes and shelter for foreign women workers who are victims
of trafficking or physical abuse. Police officers have been
designated as liaisons with the MCA's Social Services and
Welfare office and other NGOs on cases involving trafficking
and other victims.

(SBU) Using USG funding and with the assistance of the IOM,
local NGO Tenaganita plans to establish Malaysia's first
dedicated shelter for foreign TIP victims in March 2006.
Tenaganita intends to obtain the formal approval of police,
immigration and Women's Ministry officials for the shelter,
as it ramps up operations. The Indonesian embassy's shelter
in Kuala Lumpur has a capacity of 80 persons, but in
mid-February it housed 140 individuals, including a
15-year-old girl recently trafficked into Malaysia from
Sumatra for sexual exploitation. Approximately 80% of the of
the shelter's occupants are typically TIP victims, according
to the embassy's lead anti-TIP official. Of that number,
about 80% are laborers escaping exploitative conditions, with
the remainder are persons trafficked for sexual purposes.


G. (SBU) The Malaysian government views border control as a
national security issue because of concerns related to
terrorism, narcotics, public health, economic security, and
social stability, as well as trafficking. For all of these
reasons, the government is making a strong effort to monitor
the country's borders. Malaysian passports issued in the
country are fitted with a microchip that stores the
biographic data and photograph of the passport holder to
prevent forged alterations and photo substitution of lost or
stolen passports. As part of its crackdown on vice in 2002,
the government instituted tougher criteria for foreigners
seeking student visas and increased border scrutiny of young
persons, particularly from China, entering Malaysia on
special "social passes." In 2005 the government began a
large-scale program to issue immigration "smart cards" to
permanent residents and legal workers in Malaysia. The smart
cards electronically store biographic data, fingerprints and
the immigration status of the cardholder.

(SBU) Malaysia's 3000-mile-long coastline creates a
tremendous challenge for Malaysia's security forces. In
addition, the long, heavily forested land border that East
Malaysia shares with the Indonesian province of Kalimantan
cannot be patrolled adequately. The government nonetheless
makes a serious effort to control these borders. Reports of
organized criminal activity to facilitate the entry of
illegal aliens are investigated by local law enforcement
authorities, and in some cases suspected perpetrators have
been detained under Malaysia's Internal Security Act (ISA),
the Emergency Ordinance and the Restricted Residence Act, all
of which allow for extended periods of detention without
charge. In January 2005, the press reported that the police
used the ISA to detain nine persons involved in forging
Malaysian identity cards. Seven of the individuals worked
for the Malaysian national registration office and the
remaining two were members of criminal syndicates. In both
2003 and 2004, according to government statistics,
approximately 4,000 foreign nationals were refused entry into
Malaysia due to suspicion of owning fake or falsified travel
documents.


H. (SBU) A number of governmental interagency groups address
TIP and related issues. The MFA leads an interagency group
on transnational organized crime, which meets monthly and has
been charged with addressing the trafficking issue from a
regional perspective. The Home Affairs Ministry supports
another interagency group, the Cabinet Committee on Illegal
Immigrants, which coordinates efforts against illegal
migration, including TIP. Deputy Prime Minister Najib, who
also holds in his portfolio oversight of the National Human
Rights Commission, chairs the Cabinet Committee on Illegal
Immigrants.

(SBU) The Home Affairs Ministry also maintains a special
interagency task force targeting vice that includes officials
from the RMP, Immigration, and the Ministries of Home
Affairs, Housing, Education, and Tourism. According to NGOs,
this task force meets occasionally, but its anti-vice
contributions remain unclear. An additional border security
group, the Land Entry Points Coordinating Committee, reviews
and improves the operational aspects of border control. A
similar group also coordinates efforts to improve service,
security and efficiency of air-entry points. In the state of
Sabah, on Borneo, an interagency Federal Special Task Force
focuses primarily on illegal migration, but also tries to
prevent TIP. The task force includes representatives from
the RMP, Immigration, the national security arm of the Prime
Minister's Department, and the armed forces. A separate
agency under the Home Affairs Ministry, the Anti-Corruption
Agency, investigates cases of public and private corruption.
A royal commission on police reform conducted a review of
police practices, including allegations of police corruption
and graft, starting in 2004, issuing 125 recommendations in
April 2005. In early 2006, the Prime Minister ordered the
Attorney General to complete the legal groundwork necessary
to create a permanent independent commission to hear
complaints against the police.

(SBU) On the international level, TIP is a component of the
Eight Priority Areas of Cooperation under the Work Program of
the ASEAN Plan of Action to Combat Transnational Crime. In
2004, Malaysia signed a joint ASEAN Declaration to Combat
Trafficking in Persons. The declaration called for greater
regional counter-TIP cooperation and asked member states to
undertake actions to respect and safeguard the dignity and
human rights of victims of trafficking. In 2005, Malaysia
convened a meeting of ASEAN attorneys general to sign an
ASEAN-wide mutual legal assistance treaty (MLAT) designed to
combat transnational crimes, including TIP, more effectively.
In May 2002, Malaysia, the Philippines and Indonesia signed
the "Agreement on Information Exchange and the establishment
of Communication Procedures" to establish a framework for
cooperation on border and security incidents, transnational
crimes (including trafficking in persons),and other illegal
activities. Subsequently, Cambodia, Brunei and Thailand
acceded to the agreement. Malaysia has been an active
participant in the "Bali Process" initiated by Australia and
Indonesia. In 2003, Malaysia hosted two follow-up
legislative workshops on People Smuggling, Trafficking in
Persons and related Transnational Crime.

(SBU) Malaysia shares intelligence on trafficking syndicates
and related dangers with the UK, Australia and Interpol. In
late 2002, the Sabah state government entered into an
agreement with the government of the Indonesian province of
East Kalimantan to cooperate on a range of shared
cross-border challenges, including finding and arresting
human traffickers and dismantling syndicates. In 2004,
Malaysia ratified the UN Convention against Transnational
Crime; it is considering signing the supplementary protocol
against trafficking in persons. Malaysia is expected to
conclude an MLAT with the U.S. in 2006.


J. (SBU) In October 2004, Suhakam, with support from the IOM
and the Embassy, drafted a national anti-TIP plan of action
for consideration by the government. In preparing the plan,
Suhakam consulted with government agencies and NGOs involved
with TIP, foreign embassies from source countries for TIP
victims found in Malaysia, TIP victims and foreign experts on
TIP such as the IOM. The national plan of action was
submitted to the government for consideration in November

2004. The government has not yet acted on the anti-TIP
plan's proposals, nor has it designated a lead ministry for
counter-TIP programs.


11. INVESTIGATION AND PROSECUTION OF TRAFFICKERS (PARA 23)
-------------- --------------

A/B/C. (SBU) In 2002, the government amended the criminal
code to include extensive anti-trafficking language.
According to one expert on anti-trafficking legislation, it
is now "a strong law with solid anti-trafficking provisions
with regard to trafficking for sexual exploitation." Using
the provisions, police regularly raid brothels and arrest
pimps and enforcers. However, only two such individuals were
convicted under the penal code during the first nine months
of 2005. When the police lack sufficient criminal evidence
to arrest suspected pimps and traffickers under the Penal
Code, they often utilize the Restricted Residence Act, one of
Malaysia's "preventive detention" laws, to incarcerate them.
Another such law, the Emergency Ordinance, is regularly used
against criminal syndicates that transport, harbor and
otherwise facilitate the illegal entry of foreigners into
Malaysia.

(SBU) While Malaysia does not have a unitary law specifically
prohibiting trafficking in persons, most of the acts involved
in trafficking in persons as defined by the UN Protocol are
criminal offenses, including recruitment, transportation,
transfer, wrongful restraint, harboring, receipt of persons
by means of threat or use of force, or other forms of
coercion fraud, abuse of power, or forced sexual
exploitation, slavery, or servitude. In 2004, the government
began to use new provisions to the 2001 Anti-Money Laundering
Act to seize the assets of businesses involved in illicit
activities, including trafficking. Following is a summary of
the legal provisions most commonly used in Malaysia against
traffickers:

-- Constitution, Articles 6(1) and 6(2): Prohibit slavery and
forced labor.

-- Penal Code, Sections 340-348: Address "wrongful
confinement" of a person against his/her will. Punishments
include maximum prison terms from one to three years and a
fine.

-- Penal Code, Section 372: Amended in 2002 to include
stronger anti-trafficking language, addresses exploitation of
any person for purposes of prostitution. Exploitation is
defined to include selling, hiring, or otherwise obtaining
possession of any person with the intention to employ or use
the person for the purpose of prostitution (either inside or
outside of Malaysia) or knowing or having reason to believe
that the person will be so employed or used. Section 372
expands the offense of exploitation to include using false
pretense or deceitful means to bring into or take out of
Malaysia any person; harboring or receiving any (exploited)
person and wrongfully restraining any person in any place.
Wrongfully restraining is further defined as withholding
clothing or property, threatening the person with legal
proceedings to recover any debt or alleged debt and detaining
a person's identity card or passport. Punishment under this
section of the Code includes a prison term, which may extend
to 15 years, caning and a fine.

-- Penal Code, Section 372A: Provides the same penalties as
section 372 for anyone who lives wholly or in part on the
earnings of the prostitution of another person.

-- Penal Code, Section 373: Provides the same penalties as
section 372 for anyone who keeps, manages or assists in the
management of a brothel.

-- Penal Code, Section 374: Addresses unlawful compulsory
labor and includes punishment by imprisonment for a maximum
one-year term and the possibility of a fine.

-- Immigration Act, Sections 55(A) and Sections 56(1)(d):
Covers a wide spectrum of immigration violations related to
illegal entry or entry under false pretenses. The Act also
addresses "employing" and "conveying" illegal aliens. The
Act was amended in 2002 to toughen significantly punishments
for immigration violators. Those convicted of illegal entry
face a fine of up to RM 10,000 ($3,800) and/or a prison
sentence of up to 5 years, and caning of up to a maximum of 6
strokes. The penalty for employing an illegal alien is a
fine of between RM 10,000-50,000 (USD 7,900) for every
illegal immigrant employed and/or a prison term of up to 12
months. An employer employing more than five illegal
immigrants will be imprisoned from 6 months to 5 years and
caned up to a maximum of 6 strokes. The penalty for
"conveying" (trafficking) illegal immigrants is a fine of RM
10,000-50,000 for every individual trafficked. An individual
convicted for trafficking more than 5 illegal immigrants will
also be imprisoned for between six months and five years, and
caned up to a maximum of six strokes.

-- Child Act (2001): Merges provisions from an array of
diverse legislation pertaining to children and young persons
(the Women and Girls Protection Act, the Juvenile Court Act,
and the Child protection Act) into one law. The Act
specifically prohibits trafficking of children and makes it
an offense to sell, let to hire, or procure (by threat or
intimidation by false pretense, fraud or deceit) any child
(defined as anyone under the age of 18) for the purpose of
sexual exploitation. Penalties for these offenses are a
maximum prison term of 15 years and a maximum fine of RM
50,000 (USD 13,000). The Child Act also authorizes the
police to provide protection and rehabilitation for children
in need. A child in need is defined to include a child who
"is being induced to perform any sexual act, or being in any
physical or social environment which may lead to the
performance of such act".

-- Passports Act: Criminalizes the forgery or alteration of
travel documents (including passports, residence permits and
visas). Also criminalizes false statements or
misrepresentation used to gain illegal entry into Malaysia.
Penalties range from RM 10,000-100,000 ($2,600-$26,000) fine,
5-10 years in prison, and six strokes of a cane.

-- Internal Security Act (ISA): Provides for detention up to
two years without formal charge. According to the Home
Affairs Ministry, the ISA has sometimes been used against
individuals for threatening the security of the country by
trafficking illegal immigrants or forging travel documents or
work permits.

-- The Emergency (Public Order and Prevention of Crime)
Ordinance: Used against persons, usually criminal syndicates
that are involved in illicit activities (such as violent
crime, document forgery and people smuggling),which threaten
public order.

-- Restricted Residence Act (RRA): Allows the government to
require individuals who are suspected of engaging in criminal
activity including trafficking to move to a pre-determined
location in the country and remain there under close police
supervision. The RRA does not require a formal charge to be
filed against the suspected individual. According to police
data, the RRA was used significantly more often than the
penal code to charge and detain suspected pimps and
traffickers during 2005.


D. (SBU) Federal law criminalizes prostitution and bans
pornography, and the laws are vigorously enforced.
Malaysians tend to be conservative on sexual issues. The 60%
of the population that is Muslim is subject to Islamic laws
that prohibit even "close proximity" between men and women
who are not married to each other. The activities of the
prostitute, brothel owner/operator, and enforcer are all
considered criminal offenses, though clients are not
generally prosecuted. The sex trade is largely underground.
It is visible only at two extremes: in nightclubs and bars
that cater primarily to affluent foreigners; and in poor
neighborhoods with large migrant populations.


E. (SBU) Following amendments to different acts in 2001 and
2002, the government began to prosecute people involved in
trafficking for the purposes of prostitution. According to
the MFA, in 2002 the first trials and convictions under the
amended sections 372, 372A and 372B of the Penal Code began
to work their way through the courts, with 9 trials and 7
convictions. In 2003 there were 85 cases investigated, 31
prosecutions and seven convictions. According to RMP
statistics, 28 persons were prosecuted (and two convicted)
under Sections 372 and 373 of the Penal Code from January -
September 2005, compared with 38 persons prosecuted (and 17
convicted) during all of 2004.

(SBU) When police lack sufficient evidence to convict a
suspected pimp or trafficker, they use the Restricted
Residence Act to detain the suspected individual. The Act
allows the government to detain a suspected trafficker
indefinitely, without due process of law. During the first
nine months of 2005, 48 suspected traffickers were detained
under the Restricted Residence Act, compared with 47 during
all of 2004.

(SBU) According to the government, it detained "about 40"
members of regional trafficking syndicates from 2000-2004
under the Internal Security Act (ISA). The suspected
traffickers used Malaysia as a transit point for trafficking
Chinese nationals to third countries. The government stated
that 13 international trafficking syndicates were eliminated
in these operations.

(SBU) Government officials, NGOs and legal analysts
acknowledge that prosecution of trafficking perpetrators is
complicated by the difficulty in producing credible evidence
and by the lack of victim cooperation. Evidentiary barriers,
the prosecution's burden of proof beyond a reasonable doubt,
and pressure to produce convictions in a backlogged criminal
justice system all work against effective prosecution of
trafficking cases. Given these problems, the government has
employed the ISA, the Emergency Ordinance and the Restricted
Residence Act to detain or restrict the activities of people
suspected of trafficking and alien smuggling activity.


F. (SBU) The RMP reports that a number of large organized
criminal syndicates, as well as a few smaller groups, traffic
foreign women into Malaysia, using Malaysia either as the
women's final destination or as a transit point to a third
country. In 2005, there were numerous reports of
prostitution rings broken up by police and syndicate members
arrested for involvement in prostitution. Employment
agencies are sometimes used as fronts for people smuggling
and trafficking in persons. Sex tourism is not widespread in
Malaysia, nor are there reports of marriage brokers fronting
for traffickers.


G. (SBU) As noted in para 8E above, the Malaysian government
is actively investigating cases of trafficking. Police
efforts to break criminal syndicates are complicated by
layers of middlemen, some of whom reside outside Malaysia.
Often trafficking victims, both Malaysians who have gone
abroad and foreigners brought to Malaysia, may only know one
middleman, who is probably using a false identity. In
investigating cases of trafficking, police investigators
attempt to question repatriated Malaysian victims as soon as
they return, but the victims usually cannot or will not
provide enough information for further investigation.


H. (SBU) The government lacks the expertise to provide law
enforcement officers with specialized training on how to
investigate incidences of trafficking. It continues to take
full advantage, however, of TIP training for law enforcement
officers and prosecutors at ILEA Bangkok, as well as
bilateral training on domestic violence sponsored by the USG
in Malaysia. Police, prison and immigration officials also
lack TIP victim identification expertise. In 2005, senior
police and immigration officials asked for USG-sponsored TIP
victim identification training. The Embassy continues to
seek funding and provision of such training for GOM law
enforcement officials.


I. (SBU) The RMP cooperates with law enforcement agencies in
neighboring countries whenever cross-border criminal
incidents are being investigated. In May 2002, Malaysia,
Indonesia and the Philippines signed an agreement to
facilitate cooperation in addressing border and security
incidents, as well as transnational criminal activities that
include human trafficking. In late 2002, the Sabah state
government entered into a formal agreement with the
government of the Indonesian province of East Kalimantan to
cooperate on a range of issues, including combating TIP and
investigating trafficking syndicates. Malaysia actively
participated in the Bali Process and has hosted two
legislation workshops related to it. In early 2005, though a
joint operation by the RMP and the British National Crime
Squad, a Malaysian "snakehead" was arrested, tried and
convicted of smuggling illegal Malaysian workers into the UK.
In April and October 2005, the RMP closely cooperated with
an international NGO to raid several brothels in Johor,
arrest one internationally active trafficker and rescue
dozens of (primarily Thai) women. Thai police from Songkla
visited Kuala Lumpur in February to conduct a joint
cross-border TIP investigation with local police.
Representatives from NGOs, as well as the Indonesian, Thai
and Philippine embassies in Kuala Lumpur, characterize their
cooperation with police as good. NGO and embassy officials
emphasize the timely responses from police to tips about the
locations of possible TIP victims.


J. (SBU) There have been no reports of extraditing persons
charged with trafficking. Section 108A of the Penal Code
allows Malaysian authorities to prosecute a Malaysian who
commits or abets a crime in another country that would be
deemed an offense under the Penal Code. Malaysia is a party
to the ASEAN Mutual Legal Assistance Treaty, which is
designed to facilitate and expedite regional cooperation in
fighting transnational crime. Malaysian law does not
prohibit extradition of Malaysian nationals.


K. (SBU) There have been no proven cases of tolerance or
complicity in TIP by government authorities. Pockets of
general corruption, particularly at the local police and
immigration levels, exist.


L. (SBU) Although some low-level police and immigration
officials likely receive bribes from brothel owners, pimps
and traffickers, we are aware of no allegations that police
officers or other government officials have engaged in
trafficking.

(SBU) Most analysts assume that some trafficking-related
corruption exists among law enforcement and immigration
ranks, since some TIP victims have been known to pass through
two or more ports of entry without travel documents. In
April 2005, a government-sponsored independent police
commission noted a rising incidence of police corruption.
Included among the appointed commissioners were women
activists active in the fight against TIP. The commission
reported that disciplinary actions were initiated against
1,216 police personnel for corruption and other offenses
during 2004, compared with 1,138 in 2003. Police offenses
noted in the report included accepting bribes, theft, and
rape; punishments included suspension, demotion and
dismissal. The number of these officers involved in
facilitating trafficking was not available. As noted above,
the Prime Minister recently ordered the Attorney General to
complete the legal groundwork necessary to create a permanent
independent commission to hear complaints against the police.
If ultimately established, this commission could provide an
effective venue for investigations into allegations of police
complicity in trafficking.


M. (SBU) Malaysia does not have an identified child sex
tourism problem, although the Indonesian, Thai and Philippine
embassies occasionally report interviewing victims under 18
years of age what have been trafficked for sexual
exploitation.


N. (SBU) Malaysia signed and ratified ILO Convention 29 in
1957, ILO Convention 105 in 1958 (but renounced it in 1990),
ILO Convention 182 in September 2000, and the UN Convention
on the Rights of the Child in September 1995. Malaysia
signed the UN Convention against Transnational Organized
Crime in September 2002 and ratified it in 2004. The
government has not signed the supplemental Protocol on the
Sale of Children, or the Protocol to Prevent, Suppress, and
Punish Trafficking in Persons, Especially Women.


12. PROTECTION AND ASSISTANCE TO VICTIMS (PARA 24)
-------------- --------------


A. (SBU) The government provides no shelter facilities
dedicated exclusively to TIP victims, as these individuals
are not recognized as victims under Malaysian law. Until
Malaysia amends its existing laws or enacts comprehensive
anti-TIP legislation, TIP victims will be routinely processed
as illegal migrants and held in the country's prisons or
illegal migrant detention facilities, prior to deportation.
According to the RMP and foreign consuls, trafficking victims
identified by the police are released on an ad hoc basis into
the custody of a consular official and sent to a women's
shelter instead of being kept in police lock-up. The
Indonesian, Thai and Philippine embassies report that in
2005, RMP officers brought in many of the over 500 victims
assisted by the embassies' respective shelter programs during
the year.

(SBU) As of February 2006, the Indonesian embassy's shelter
held 140 individuals, approximately 80% of whom were deemed
TIP victims by embassy officials. Women's shelters run by
other foreign embassies temporarily housed an additional
30-40 TIP victims per year. NGOs and police report that NGOs
currently do not have the capacity to shelter more than 25-50
victims nationally, leaving the police few alternatives to
housing victims in detention facilities. Owing to language
barriers and limited police training, foreign trafficking
victims are usually not recognized as victims and are treated
as immigration offenders. HIV/AIDS screening is usually
provided for individuals arrested for prostitution and for
others who are identified as trafficking victims rather than
illegal migrants. When trafficking victims are identified as
victims prior to detention, they may be sent to a hospital
for examination and released to their embassies for
repatriation.


B. (SBU) Although NGOs do not receive government funding
specifically to provide services to trafficking victims, the
government provides general funding to 75 NGOs dedicated to
women's welfare. These NGOs provide shelter for victims of
rape and domestic violence, counseling, legal referrals, and
job skills training. Three foreign embassies maintain
shelters in Kuala Lumpur for citizens who have no place to
take refuge. The Thai embassy's shelter is small and held no
individuals as of February 2006, while the Indonesian
embassy's shelter is by far the largest, with a (typically
exceeded) capacity of 80. Many using the shelters are
trafficking victims.

The MWFCD has introduced "women's centers" in each state for
impoverished, abused and otherwise vulnerable women who may
need shelter, counseling, and job skills training. The
ministry currently operates five such shelters. The ministry
stated in 2005 that one of these shelters could be quickly
converted to house trafficking victims who need assistance,
once Malaysian law allows the GOM to handle TIP victims as
such.


C. (SBU) The government has not yet implemented a formal
screening process to identify TIP victims and treat them
accordingly. A Suhakam-designed TIP victim identification
questionnaire was used briefly on a trial basis in 2005 at
the Kajang women's prison. Both Suhakam and the prison's
director told us recently that it is no longer used, as
Malaysian law does not allow special treatment for detained
TIP victims.


D. (SBU) Foreign TIP victims are often not recognized as
victims and, if they are holding false travel documents or
have been arrested for prostitution, are usually detained and
deported. Illegal migrants (including some victims) who are
caught by the Malaysian authorities without valid travel
documents are held for a few days in police custody before
being sent to immigration detention centers or prisons
pending deportation. The period of detention varies widely,
from a few days to several months. According to foreign
consular representatives, the usual sentence is one or two
months' imprisonment and a fine, followed by deportation.



E. (SBU) The Malaysian government encourages victims to
assist in the investigation and prosecution of trafficking,
but reports that most victims are unwilling to testify or do
not have sufficient information to assist in a prosecution.
A trafficking victim may file a civil suit against a
trafficker under Malaysian law, and there have been many
cases of migrant workers filing such suits in cases where
they were not paid the salary they were promised or put to
work in abusive conditions that were contrary to their
contracts. While there is no specific impediment to the
victims' access to such legal redress, they are usually not
able to obtain employment while the court considers their
case, and so for economic reasons this type of action in not
usually pursued. We are not aware of any victim restitution
program.


F. (SBU) Some foreign victims have access to legal counsel
through the Legal Aid Center of the Malaysian Bar Council.
Police say that most victims are unwilling or unable to
provide enough information for criminal prosecution of the
trafficker, and many simply want to return to their home
country as soon as possible. One NGO reported that pimps and
traffickers are often present in the courtroom during court
proceedings to intimidate the victims, while another NGO
reported in October that police allowed a trafficker to visit
ten Thai trafficking victims in detention. The Malaysian
government does not have a witness protection program in
place for any prosecution witnesses. The Abduction and
Criminal Intimidation of Witnesses Act of 1947 criminalizes
the abduction of any person for the purpose of preventing
their testimony and thereby obstructing justice. The police
and Attorney General have advised that this is rarely used in
trafficking cases. The courts have begun to experiment with
video conferencing and videotaped depositions to provide
protection to victims who are afraid to testify in court. As
of February 2006, the necessary equipment was installed in
several locations, but the program had not yet been initiated.

(SBU) According to an Indonesian embassy official, many
Indonesian plantation workers in Sabah are detained on the
plantations and forced to work for less than $3 (i.e. RM8-10)
per day. Under Malaysian law, victims of these forms of
trafficking are entitled to seek compensation through the
legal system and are eligible to remain in Malaysia while
their legal suit is pending. In general, Malaysian courts
have ruled in favor of the victims and in some cases imposed
harsh prison sentences on the employer. However, such
labor-related lawsuits may take months or even years to be
adjudicated. Meanwhile, the victim is not allowed by the GOM
to work and is typically left with insufficient means of
financial self-support; they therefore often leave the
country, rather than see their case through to completion.


G. (SBU) The government does not currently provide special
training for officials on how to identify or assist
trafficking victims. Senior police and immigration officials
have acknowledged that additional training and expertise are
needed to improve identification and handling of trafficking
victims. Police and immigration officials have asked the USG
to provide additional such training to improve their anti-TIP
capability, and we have requested funding for the training
(ref B). Outside of citizen services and repatriation
training, Malaysian embassy and consulate staff abroad do not
receive specialized training on how to assist trafficking
victims. Malaysian police, immigration officials and public
prosecutors have received training at ILEA on trafficking in
persons, as well as USG-funded bilateral training on domestic
violence.


H. (SBU) Repatriated Malaysian victims who do not have the
support of family or friends are referred to the MWFCD for
public assistance. Private groups, such as the MCA's welfare
wing, also offer services to repatriated victims.


I. (SBU) MCA, the Bar Council, Tenaganita, Women's Aide
Organization (WAO),and the International Federation of Women
Lawyers (IFWL) are the Malaysian NGOs most active in working
with trafficking victims. In 2004, the IOM provided
Assistance to Suhakam to draft a national plan of action to
combat TIP. In 2005, the IOM and Tenaganita submitted a
project proposal to the Embassy to shelter, repatriate and
reintegrate TIP victims. Following funding approval, the IOM
and Tenaganita signed a MOU regarding establishment of the
shelter, and it is scheduled to commence operations in March

2006. Two NGOs maintain shelters that are available to
foreign trafficking victims. One of the shelters provides
in-house counseling, medical referrals to clinics and legal
referrals to the Bar Council's Legal Aid Center. The shelter
also works with foreign missions to arrange for translators
and to facilitate repatriation for women trafficked to
Malaysia. Other women's shelters in the country provide
refuge, but have few additional resources for the special
needs of trafficking victims. NGO relations with local
authorities vary. Some frequently receive cooperation from
law enforcement officials, but others experience greater
difficulty. The MCA, WAO and Tenaganita provide a full range
of services, including counseling, shelter, and repatriation
assistance. The Bar Council and IFWL provide legal
assistance. Foreign embassies and local NGOs report that
cooperation with the federal police in Kuala Lumpur has
generally been good. Outside of Kuala Lumpur, with other
agencies such as Immigration, cooperation is less consistent.


13. HEROES (PARA 22)
--------------

(SBU) For the 2006 Trafficking in Persons Report the Embassy
nominates Irene Fernandez, President of local NGO Tenaganita,
for honor as an individual who has demonstrated an
exceptional commitment to fighting TIP. Over the past
several years, her work on behalf of both mistreated migrant
workers and sexual trafficking victims in Malaysia has
garnered her worldwide respect and support. Fernandez was
arrested in March 1996 for publishing a report about detainee
abuse and very poor sanitation conditions in the country's
illegal migrant detention centers. Found guilty in October
2003 and sentenced to one year in jail, she appealed her
case. Hers has become the longest-running court case in
Malaysian history. In May 2005, her NGO Tenaganita published
a video entitled "Breaking Labor" that included the tragic
stories of several foreign victims of labor trafficking and
abuse in Malaysia. During 2005, Tenaganita facilitated legal
assistance and shelter for sexual trafficking victims. In
December 2005, Fernandez traveled to Stockholm to accept the
Right Livelihood Award, commonly known as the "Alternative
Nobel Prize." And as of February 2006, in cooperation with
the IOM and with USG funding, Tenaganita was poised to
establish Malaysia's first dedicated TIP victim shelter and
repatriate TIP victims to their home countries. Tenaganita
has become the largest and most effective anti-TIP NGO in
Malaysia, and this status is largely due to Fernandez'
efforts. She has demonstrated considerable vision, courage
and leadership in the face of the Malaysian government
lawsuit. Her efforts have directly benefited hundreds of TIP
victims, as well as influenced the GOM to improve its
anti-TIP attitudes and actions.
LAFLEUR