Qualitative Studies in Cases of Trafficking: The Case of Migrant Women in Malaysia

Introduction

Malaysia, a middle-income country, and relatively prosperous country compared to other Southeast Asian countries have become a popular destination among migrants for economic purposes. According to the World Bank (2019), Malaysia houses around three million foreign workers, which makes Malaysia the sixth-largest migrant-receiving countries in East Asia. According to the report, Indonesian workers constitute the majority at 39%, followed by Nepali workers at 24%, Bangladeshi workers at 14%, and the remaining 23% comprise of workers from other parts of Asia (Dewanto, 2020). Foreign low-to-medium skilled workers are hired in six sectors namely construction, services, plantation, agriculture, manufacturing, and domestic work (Dewanto, 2020). Although many of these workers have migrated to Malaysia to work legally, the country also faces the burgeoning problem of ‘irregular migration’. ‘Irregular migration’ in this sense would refer to individuals who entered Malaysia through precarious means. This would include those who are trafficked, smuggled, or have entered Malaysia without a valid passport, visa, or work permit. It would also include someone whose passport, visa, or work permit has expired.

According to the Global Trafficking in Persons Report, human trafficking activities has gained notoriety in Malaysia due to the high demand for low-skilled labour, restrictive immigration policies, and the state’s repressive treatment towards migrants with irregular status (United Nations Office on Drugs and Crime, 2020). Human trafficking occurs when an individual is recruited, transported, or harboured by way of force, coercion, deceit, threat, or abuse and exploited for the purpose of profits. Article 3 (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children (Palermo Protocol) defines trafficking in person as a person who is recruited, transported, transferred, harboured, or received by way of threat, force, coercion, abduction, fraud, or abuse of power of a position of vulnerability for the purpose of exploitation. Exploitation in this context shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery, or practices similar to slavery, servitude, or the removal of organs.

Malaysia’s geographic location, porous borders and proximity to major trade and traffic routes have also ensured a growth in sex trafficking activities within Southeast Asia even though sex work and prostitution is criminalised in Malaysia. According to section 8 of the Immigration Act 1959/63, a visa or permit shall not be issued to any foreign sex worker, or those who intend to work in the sex trade. A migrant sex worker is broadly considered to be anyone who moves from one place to another; who crosses the state borders or remains within them; who may have various legal or illegal statuses; and who engages in any form of sexual or erotic service in exchange for money, food, shelter, and resources (Butterfly (Asian and Migrant Sex Workers Support Network), 2018). Section 12 of the Anti-Trafficking In Persons and Anti-Smuggling of Migrants Act 2007 (ATIP) also criminalises any act of trafficking in persons for the purpose of sexual exploitation and section 16 of the ATIP treats the consent of trafficked persons as irrelevant. Despite such strict rules and prohibitions, the employment of migrant sex workers continues to flourish. As a result, the U.S Department of State has categorised Malaysia as a source, transit, and destination country for sex trafficking in the southeast Asian region (U.S Department of State, 2017, 2018, 2020).

In response to such categorisations, Malaysia has ratified the Palermo Protocol and structured its anti-trafficking laws around prosecution, protection, and prevention (referred to as the ‘3P’ policy). While this is viewed as a positive step towards combatting human trafficking in the country, the enforcement of victim-protection policies is carried out in contradictory ways. Trafficked women are not only portrayed as victims in need of care and protection, but also as individuals who have violated immigration laws and engaged in ‘immoral’ acts. This results in state practices that (re)victimise women through policing, immigration and court processes which are often deeply stressful, traumatising, and violent. Punitive practices – including ‘state and rescue’ operations and long-term detention – have been legitimised and branded as ‘victim protection’. In this context, the study argues that current policies and practices represent a continuing form of violence against migrant women in Malaysia.