GLUP 4223 LITIGATION AND MOOTING

ASSIGNMENT 1

PREPARED BY:
NAME MATRIC NUMBER
MUHAMMAD ASHRUL HAIKAL BIN 255762
ASHRI

PREPARED FOR:
MR. MUHAMMAD HAFIZ BIN BADARUZZAMAN

SUBMISSION DATE:
29/04/2021
1.0 INTRODUCTION

In the modern world today, smuggling activities is no longer limited to domestic

territory nor the involvement of certain dangerous items such as drugs or weapon, but
the reality today, crime activities have expended transnationally and it also involved the
presence of human regardless of gender, races and age as the subject matter of the
smuggling and trafficking activities which the mechanism used by the traffickers are
more complex in nature1.

Fundamentally, the concept of human trafficking and smuggling activities is very

abstract as it involves multi-dimension of offences. However, the intentional
community has agreed upon one definition written under Article 3 of Palermo Protocol2
which focus on the exploitation of human being which the protocol reads as follows

“Trafficking in persons" shall mean 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 services, slavery or practices
similar to slavery, servitude or the removal of organs”.

Furthermore, the main objective of human trafficking is varied in nature as it will

normally involve sexual exploitation, forced labour, slavery, involuntary servitude and
removal of organ3. The syndicate that involved in the market of human trafficking
normally employed numerous tactics of unlawful means in order to deceive their

1
Hao Yi Ng, “Human Trafficking In Malaysia: The Challenges in Law and Enforcement,” UM Law Review (2016):
64, www.iranesrd.com.
2
United Nations, Protocol on Trafficking, 2000,
https://www.ohchr.org/Documents/ProfessionalInterest/ProtocolonTrafficking.pdf.
3
Suhana Saad and Ali Salman, “Government Policy and the Challenge of Eradicating Human Trafficking in
Malaysia,” Geografia : Malaysian Journal of Society and Space 10, no. 6 (2017): 66–74.
 victims which will be trafficked by the process of transferring, transportation,
recruitment, harbouring and receipt of persons 4

In order to combat this particular transnational crime activity, Malaysia has

acceded to the United Nations Convention against Transnational Organized Crime and
Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women
and Children which is supplemental to the convention with certain reservation made in
place. As result to the rectification of the convention and protocol, the legislation had
enacted a principal statute to handle the crime which is known as Anti Trafficking in
Persons and Anti-Smuggling of Migrants Act 2007 (Act 670). The legislation was
supplemented by numerous federal act such as Federal Constitution, Immigration Act
1959/63, Malaysian Maritime Enforcement Agency Act 2004, Customs Act 1967,
Evidence Act 1950 and several other legislation.

2.0 PROBLEM STATEMENT

In 2015, Malaysia had been a sitting duck of criticism by international

community and international media which caused by the discoveries of mass grave at
Wang Kelian, Perlis which crucially proved that Malaysia has been a hub and a transit
point of this immoral activities of human trafficking and migrant smuggling 5. However,
after 6 years of being exposed to the public and to the world there is still no justice to
130 skeleton of victims found in that mass grave.

Hence the question is, whether there is sufficient law to combat human
trafficking and migrant smuggling in Malaysia and if there is any law does the
enforcement of the law really being done effectively? On the hand, does the law only
concern with punishing the offenders but consciously neglected in protecting the
victims.

United States of America through its report known as 2016 Trafficking in

Persons Report by the Department of State highlighted several major issues currently
faced by the government against the problem of human trafficking and migrant

4
United Nations Office on Drugs and Crime, “Anti-Human Trafficking Manual for Criminal Justice
Practitioners,” Global Initiative to Fight Human Trafficking (2009): 1–396,
https://www.refworld.org/pdfid/4ab8d9a82.pdf.
5
Farah Naz Karim and Aliza Shah, “[Exclusive] The Secret of Wang Kelain Exposed,” New Straits Times, 2017,
https://www.nst.com.my/news/exclusive/2017/12/316339/exclusive-secrets-wang-kelian-exposed.
 smuggling. The report6 also emphasized that Malaysia is a hub and a target destination
of the syndicate of human trafficking and migrant smuggling which majority of the
victim regardless of gender, age categories and nationalities are subjected to force labor,
sex industry and beggars. It is also mentioned in the report that most of the victims
came from Indonesia, Bangladesh, Myanmar and Nepal in order to secure better
economic opportunities but subsequently swindled by the broker of the syndicate when
they unable to pay to travel fees and other fees determined by the agent 7.

As reflection to such circumstances, Malaysia has been enlisted under tier 2

watch list by the report which suggested that Malaysia is not doing enough to combat
this “ancient economic activities” and the current legal framework that exist in our
landscape has not met the minimum requirement of international standard. However,
throughout the years the government has putting up more effort in order to ensure this
problem can be handled properly by all means necessary.

3.0 LITERATURE REVIEW

In this part of literature review we are going to analyze 3 main components

which are the challenges and trend in human trafficking and migrant smuggling
activities in Malaysia, procedures of investigation for human trafficking cases and last
but not least the salient features of ATIPSOM 2007.

Fundamentally, Section 2 of Anti-Trafficking in Persons and Anti-Smuggling

of Migrants 2007 (Act 670) defined trafficked person as any person who is the victim or
object of an act of trafficking in person. Hence in its ideal interpretation it leads to a
wider understanding of the application of the statute itself which means in enforcing the
statute there will be many challenges from various perspectives8.

First and foremost, as the response to combat the syndicate of human

trafficking and migrant smuggling, the government created to many enforcement
agencies with overlapped objectives and purpose as example the Maritime Enforcement
Agency as well as Police Marine Unit which their purpose is to monitor and protect our

6
Department of State United States of America, Trafficking in Persons Report, 2016, https://2009-
2017.state.gov/j/tip/rls/tiprpt/2016/index.htm.
7
Endro Sulaksono, “The Patterns of Human Trafficking on Indonesian Migrant Workers: Case Study of Riau
Islands and Johor Border Crossing,” MASYARAKAT: Jurnal Sosiologi 23, no. 2 (2018): 167–186.
8
Liberty Asia, Legal Gap Analysis of Anti-Trafficking Legislation in Malaysia, vol. 2013, 2018.
 national waters from being breach. However, due to the fact there are too many
enforcement agencies without one chain of command would substantially lead to lack in
the effectiveness of the control and protection provided to the national waters 9.

This current circumstances have worsen due to the existence of wide network
of organized crime as the syndicate involved with the activities of human trafficking is
not mastermind by one person but instead there are several person involve as the string
puller in order to ensure this immoral activities can remain in the landscape for a
longtime. Additionally, the enforcement of the anti-trafficking policy also facing
challenges from the inside of the enforcement itself where there are many reports
suggested that there were police officers detained for investigation relating to cover up
involving the discovery of mass grave in Wang Kelian Perlis, in 2015 10.

Aside from the challenges during the enforcement stages, there are also
challenges presence during the prosecution stage especially in term of establishing the
elements of the offence. The honorable court in the case of PP v Boon Fui Yan 11 where
there are 3 crucial elements which must be proven beyond reasonable which are (a) the
act of trafficking, (b) the person was transported by coercion and (c) the purpose of the
trafficking is to serve for the exploitation.

The difficult part in order to prove the elements of the trafficking act lies on
the second and third element which is coercion and exploitation respectively. In order to
prove the existence of the coercion conduct, the legislator has opt for a narrow approach
of definition of coercion to be installed in the statute whereby under section 2 of the act
coercion only refers to act of forcing someone which upon refusal would cause physical
harm or physical restraint. In contrast to the Australia approach which is one of the
country that currently listed in Tier 1 of TIP Report 2016, the definition of coercion has
been very broad as it also inclusive to the aspect of mental coercion as well 12.

9
Saad and Salman, “Government Policy and the Challenge of Eradicating Human Trafficking in Malaysia.”
10
Su Lin Tan and Israr Khalid, “Mass Graves: 12 Policemen Detained in Connection with Human Trafficking,”
Astro Awani, last modified 2015, https://www.astroawani.com/berita-malaysia/mass-graves-12-policemen-
detained-connection-human-trafficking-wan-junaidi-60916.
11
[2015] 7 CLJ 374
12
Zuraini Ab Hamid, Norjihan Ab Aziz, and Noorshuhadawati Mohamad Amin, “Challenges Encountered by
Malaysian Prosecutors in Human Trafficking,” International Journal of Asian Social Science 8, no. 1 (2018): 21–
27.
 Furthermore, in regards to the element of exploitation, the court in its
interpretation opt for a very simplistic approach as illustrates in the case of Siti
Rashidah Razali & Yang Lain v PP 13, where in this case the alleged victims were
having normal quality of life where they can eat, watch television and even go to
anywhere they wanted to, hence the court declared them as not a trafficked person.
Therefore, from the judgment in this particular case what does actually constituted
exploitation before the eyes of the honorable court? In the eyes of the court does
exploitation only refers to the fact that the victim needs to be physically or does it has a
broader meaning.

Another form of challenges faced by the prosecution in order to secure

conviction against the offenders of human trafficking are the absence of the support
evidence to strengthen the case before the court of law 14. There are many circumstances
which lead to this situation such as where in the case involving force labor, most of the
victims are foreigner which had knowledge regarding the legal framework in Malaysia
hence absence of contract of employment can be a huge difficulties for the prosecution
to prove their case15.

In the second aspect of literature review which relating to the investigation

procedures by the enforcement agency in combating the syndicate of human trafficking
and migrants smuggling. Basically ATIPSOM Act 2007 via Section 27 provides that
there are 5 categories of enforcement officers which are police officer, immigration
officer, officer of customs, officer of Malaysian Maritime Agency and Labor Officer
and Section 28 of the act conferred power of the investigation to all officers listed under
Section 27.

However, Royal Malaysia Police (RMP) has provided specific guideline to

the investigation process which officer must abide this particular guideline. The
respective guideline highlighted 3 circumstances which would render the victim is
finally secured which the circumstances are as follows (a) the victim manage to escape

13
[2011] 1 MLRH 716
14
Sd Michael, “Human Trafficking in Malaysia: Trends and Challenges,” Global Conference on Busines,
Economics and Social Sciences 2013, no. June (2013): 25–26,
http://www.worldresearchconference.com/gbsr2013/eproceeding/YG DAH PDFkan/043.pdf.
15
Hamid, Aziz, and Amin, “Challenges Encountered by Malaysian Prosecutors in Human Trafficking.”
 from the syndicate and reach out to enforcement agency (b) the enforcement agency
conducting operation and raids to apprehend the syndicate and securing the victim and
(c) the victim managed to obtain protection from any Non-Governmental
Organization16.

Furthermore, due to the complexity of the case and the damage which the
offence capable to inflict upon the victim, the statute has empowered the enforcement
agency with power to conduct search and seizure with or without warrant subject to the
existence of extra circumstance under Section 30 and Section 31 of the act respectively.
On the other hand, in relation to conducting search and entry upon the suspected
premise, the officer is allowed to use any necessary force and assistant to enter the
premise in order to conduct the search and seizure.

Last but not least, moving to the last aspect of the literature review is the
salient feature of ATIPSOM Act 2007 which is the main fundamental statute in
combatting human trafficking and illegal migrants smuggling. Basically, there are 4
main features of ATIPSOM Act 2007 which (a) establishment of the council known as
Majlis Anti-Pemerdagangan Orang (MAPO) (b) interest of the trafficked persons (c)
immunity of the victims and (d) the powers authorized by the act to the legal
enforcement.

Fundamentally, Section 6 to Section 11 provided the key aspects of the

establishment of the council where one of the role of this council is to regulate and
oversee as well as implement the national policy and approach to combat the crime. In
2010 the council introduce a 5 year plan to combat the crime known as National Action
Plan Against Trafficking in Person (NAP 2010-2015)17 which built upon 9 pillars such
as strengthening the law to provide bigger authority power, promoting cooperation
among enforcement agencies and many more.

Aside from that, one of the most prominent features is the protection
provided upon the rescued victim of the human trafficking and illegal migrant
smuggling activities. Section 44(1) of the ATIPSOM Act 2007 provided that following
the rescue of the victim from the hands of the syndicate, the investigation officer is
required to apply for Interim Protection Order (IPO) to the Magistrate and if the

16
Renuka Jeyabalan and Rohaida Nordin, “Protection of the Rights of the Victims of Human Trafficking: Has
Malaysia Done Enough?,” Journal of Southeast Asian Human Rights 3, no. 2 (2019): 300.
17
Ng, “Human Trafficking In Malaysia: The Challenges in Law and Enforcement.”
 Magistrate satisfied of such condition shall issue the IPO and order the victim to be
protected and deliver to a shelter center according to the gender18.

Moreover, in order to ensure the rights of the victim is not violated under the
law, the Malaysia Government has extend such protection via amendment made in 2015
which come in force since November 2015 whereby the amended law allow the victim
to work freely as well as in the circumstances the court convicted the offender, the court
may order the offender to pay restitution to the victim and the victim is also allowed to
commence civil suit against the offender19.

4.0 LEGAL ANALYSIS

In this part of analysis, we are going to evaluate every single aspect which
allow opportunity of improvement in order for us combat and eradicate this human
rights-violating offense which in a broader sense should be consider as the crime
against the basic notion of human existence. This part is extremely crucial for us to do
some reflection upon the measures taken by our authority and our nation as a whole in
order to ensure we are not left behind in global context.

In reflection to the reality that we living in today, we cannot deny that we are
not doing good enough, just yet in term of eradicating the human trafficking and
migrants smuggling syndicate which can be proved by our current place in the
Trafficking in Person Report which we are currently in tier 2 watch list for 5 years
straight and the reasons behind that are the existence of several problems in the term of
the execution of the law.

One of the biggest problem is the trend of the human trafficking and migrant
smuggling in our country which most of the time that our country is being used as the
hub and as the transit at the same time which makes it is very difficult for the authorities
to determine and pinpoint the movement of the syndicate and to make it worst the
activities of human trafficking in our country does not only works inbound but also

18
Jeyabalan and Nordin, “Protection of the Rights of the Victims of Human Trafficking: Has Malaysia Done
Enough?”
19
United States of America, Trafficking in Persons Report.
 outbound20. There are many example of inbound and outbound human trafficking occur
in Malaysia such as Indonesians being the victim of fake jobs opportunity in Malaysia
and locals being deceived to involve in a war in Syria and Yemen which illustrates the
inbound and outbound human trafficking respectively21

On the other hand, it is undeniable that the surge in number of human

trafficking and migrant smuggling cases is cause by occurrence of corrupted
enforcement officers which neglected and loss his or her integrity in safeguarding the
nation border. In the recent report by local tabloid22 that Johor Police had nabbed a
number of immigration officer and marine police over involvement with the syndicate
responsible of human trafficking and migrants smuggling in Malaysia from Indonesia
through Johor coast.

In summary to this aspect which regarding the weakness of the enforcement

and lack of integrity it can be sum up that no matter how complete and perfect the
statute on paper, if in term of enforcement there still lacking in commitment to enforce
it perfectly then all the effort will be in vain.

Furthermore, aside from the problem within the enforcement agencies, the
problem lies within the council itself as there are many reports by human rights NGOs
suggesting that the council has fail to utilize its function to maximum capacity in
recommending the government towards the best approach to combat human trafficking
in a sense that the policy recommended by the council is deemed as outdated from the
perspective of the global community23. Generally, according to the report by United
Nations, Maria Grazia Giammarinaro, the policy introduced by the council is
inadequate and the council has miss out the vital element which is the measure to install
public awareness.

20
Michael, “Human Trafficking in Malaysia: Trends and Challenges.”
21
Nurul Amirah Hamzah, Nooraini Othman, and Wardatul Aishah Musa, “Human Trafficking in Malaysia: Issues
and Effort Combating,” International Journal of Law, Government and Communication (2019): 130–140.
22
Ben Tan, “Johor Cops Nab Immigration, Marine Officers over Migrant Smugglings,” Malay Mail, last modified
2020, accessed April 28, 2021, https://www.malaymail.com/news/malaysia/2020/06/24/johor-cops-nab-
immigration-marine-officers-over-migrant-smugglings/1878493.
23
Haezreena Begum Abdul Hamid, “Sex Trafficking in Malaysia: Repositioning the Trafficked Victim and Victim
Protection Mechanism,” Southeast Asian Social Science Review 4, no. 1 (2019): 135–151.
 Last but not least, when it comes to the aspect of prosecuting the offenders,
the court will normally render the accused as not guilty and acquit the accused from the
charge, this is due to the fact that the judicial officer including the prosecutors and the
judge does not receive sufficient training and understanding towards the law itself
which normally make it difficult for them to discharge the evidential burden in order to
establish a prima facie case24.

5.0 CONCLUSION

All in all, the crime of human trafficking and migrant smuggling is a very
destructive in nature as it violates the human rights of a man which is the founding
pillars of the civilization that we have today. The activities of human trafficking and
migrant smuggling are also infringing to the exclusive right of a citizen of a particular
state in an illegal sense as in the perspective of economy as the citizens of the nation are
economically threatened by the cheap cost of remuneration provided by the victim of
human trafficking activities.

Besides that, the weakness and inefficiency of the policy maker and the
enforcement authority are undisputable evidence that Malaysia still has a long way to
go in order to eradicate human trafficking and migrants smuggling compared to other
first class world country. On top of that, it is very crucial in order to ensure the
enforcement agencies are serious to go all in against this immoral activities which by all
means they need to priorities their responsibility instead of their pockets.

It is important to bear in mind that, no matter how perfect or complete the

statute enacted by the lawmakers, but the executive to enforce the law is neglected to be
aware of their responsibilities it will definitely be wasted soon which as collateral the
next generation and the future of this nation will be at harm.

3339 Words

24
Hamid, Aziz, and Amin, “Challenges Encountered by Malaysian Prosecutors in Human Trafficking.”
Asia, Liberty. Legal Gap Analysis of Anti-Trafficking Legislation in Malaysia. Vol. 2013,
2018.

Hamid, Haezreena Begum Abdul. “Sex Trafficking in Malaysia: Repositioning the Trafficked
Victim and Victim Protection Mechanism.” Southeast Asian Social Science Review 4,
no. 1 (2019): 135–151.

Hamid, Zuraini Ab, Norjihan Ab Aziz, and Noorshuhadawati Mohamad Amin. “Challenges
Encountered by Malaysian Prosecutors in Human Trafficking.” International Journal of
Asian Social Science 8, no. 1 (2018): 21–27.

Hamzah, Nurul Amirah, Nooraini Othman, and Wardatul Aishah Musa. “Human Trafficking
in Malaysia: Issues and Effort Combating.” International Journal of Law, Government
and Communication (2019): 130–140.

Jeyabalan, Renuka, and Rohaida Nordin. “Protection of the Rights of the Victims of Human
Trafficking: Has Malaysia Done Enough?” Journal of Southeast Asian Human Rights 3,
no. 2 (2019): 300.

Karim, Farah Naz, and Aliza Shah. “[Exclusive] The Secret of Wang Kelain Exposed.” New
Straits Times, 2017.
https://www.nst.com.my/news/exclusive/2017/12/316339/exclusive-secrets-wang-
kelian-exposed.

Michael, Sd. “Human Trafficking in Malaysia: Trends and Challenges.” Global Conference
on Busines, Economics and Social Sciences 2013, no. June (2013): 25–26.
http://www.worldresearchconference.com/gbsr2013/eproceeding/YG DAH
PDFkan/043.pdf.

Ng, Hao Yi. “Human Trafficking In Malaysia: The Challenges in Law and Enforcement.”
UM Law Review (2016): 64. www.iranesrd.com.

Saad, Suhana, and Ali Salman. “Government Policy and the Challenge of Eradicating Human
Trafficking in Malaysia.” Geografia : Malaysian Journal of Society and Space 10, no. 6
(2017): 66–74.

Sulaksono, Endro. “The Patterns of Human Trafficking on Indonesian Migrant Workers:

Case Study of Riau Islands and Johor Border Crossing.” MASYARAKAT: Jurnal
Sosiologi 23, no. 2 (2018): 167–186.
Tan, Ben. “Johor Cops Nab Immigration, Marine Officers over Migrant Smugglings.” Malay
Mail. Last modified 2020. Accessed April 28, 2021.
https://www.malaymail.com/news/malaysia/2020/06/24/johor-cops-nab-immigration-
marine-officers-over-migrant-smugglings/1878493.

Tan, Su Lin, and Israr Khalid. “Mass Graves: 12 Policemen Detained in Connection with
Human Trafficking.” Astro Awani. Last modified 2015.
https://www.astroawani.com/berita-malaysia/mass-graves-12-policemen-detained-
connection-human-trafficking-wan-junaidi-60916.

United Nations. Protocol on Trafficking, 2000.

https://www.ohchr.org/Documents/ProfessionalInterest/ProtocolonTrafficking.pdf.

United Nations Office on Drugs and Crime. “Anti-Human Trafficking Manual for Criminal
Justice Practitioners.” Global Initiative to Fight Human Trafficking (2009): 1–396.
https://www.refworld.org/pdfid/4ab8d9a82.pdf.

United States of America, Department of State. Trafficking in Persons Report, 2016.

https://2009-2017.state.gov/j/tip/rls/tiprpt/2016/index.htm.