Introduction

The Philippines and Malaysia like any other countries have many cases of human trafficking, which
brings alarm and threat to families and security personnel worldwide. It is one of the fastest growing
criminal activities in the world, a phenomenon that has been said to be driven by the same forces that
drive the globalization of markets.1 The breadth of the problem is immense and the statistics that outline
the prevalence of trafficking in the world today give significant cause for concern. The scope of this global
problem is exponentially increasing, and this has been recognized to be in part due to the worldwide
increase in poverty that has been caused by the global financial crisis.2

Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in
Persons defines Trafficking in Persons as the recruitment, transportation, transfer, harboring 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 labor or services, slavery or practices similar to slavery,
servitude or the removal of organs. 3

Trafficking in persons is a serious crime and a grave violation of human rights. Every year,
thousands of men, women and children fall into the hands of traffickers, in their own countries and
abroad. Almost every country in the world is affected by trafficking, whether as a country of origin, transit
or destination for victims. UNODC, as guardian of the United Nations Convention against Transnational
Organized Crime (UNTOC) and the Protocols thereto, assists States in their efforts to implement
the Protocol to Prevent, Suppress and Punish Trafficking in Persons (Trafficking in Persons Protocol).3

Elements of Human Trafficking

On the basis of the definition given in the Trafficking in Persons Protocol, it is evident that trafficking in
persons has three constituent elements;
 - The Act (What is done)
Recruitment, transportation, transfer, harboring or receipt of persons

- The Means (How it is done)

Threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability, or giving
payments or benefits to a person in control of the victim.

- The Purpose (Why it is done)

For the purpose of exploitation, which includes exploiting the prostitution of others, sexual exploitation,
forced labor, slavery or similar practices and the removal of organs.
To ascertain whether a particular circumstance constitutes trafficking in persons, consider the definition
of trafficking in the Trafficking in Persons Protocol and the constituent elements of the offense, as defined
by relevant domestic legislation.3

Approximately 12.3 million adults and children are in forced labor, bonded labor and commercial
sexual servitude at any given time4 and around 80 per cent of transnational victims of human trafficking
are women and girls.5 The estimated annual profit from trafficking for sexual exploitation alone is US$27.8
billion worldwide.6 The prevalence of trafficking in the Asia-Pacific region has been estimated at the ratio
of 3 for every 1,000 inhabitants (with the global ratio being 1.8 for every 1,000 inhabitants).7

Present Environment
Philippines

According to the news article of Michael Joe Delizo, of ABS-CBN News. The Philippines has
retained the highest status in its compliance with measures against human trafficking, the US State
Department said in its just released annual report.
Manila remains under Tier 1 status in the US Department of State’s 2019 Trafficking in Persons (TIP)
report released on Thursday. Ivanka Trump, advisor to the US President, joined Secretary of State Michael
Pompeo at the launch ceremony in Washington.

The country has been in the top tier category since 2016 despite being tagged as a top destination of illicit
funding for human trafficking, among other crimes, by the Anti-Money Laundering Council.

“The Government of the Philippines fully meets the minimum standards for the elimination of trafficking.
The government continued to demonstrate serious and sustained efforts during the reporting period,
therefore the Philippines remained on Tier 1,” read the 2019 TIP report.

It recognized the government’s efforts, including the implementation of prosecution procedures “that
reduce the potential for further harm to child sex trafficking victims; convicting and punishing traffickers;
and robust efforts to prevent trafficking of Filipino migrant workers and to assist those who become
victims of trafficking overseas.”
The report cited efforts of the Department of Foreign Affairs, Department of Social Welfare and
Development, and Department of Labor and Employment in assisting 2,591 potential Filipino trafficking
victims in the Middle East, Asia, and Europe in 2018. Some 1,476 potential victims were rescued in the
preceding reporting period.

The report also recognized the response of the Commission of Filipinos Overseas’ to 3,853 calls and
assistance to 9 possible victims.

The TIP report noted that the National Bureau of Investigation and the Philippine Overseas Employment
Administration investigated 278 cases of alleged illegal recruitment and recommended 123 cases for filing
in the courts. There were 309 reported investigations in 2017.

The Philippine government also reported 11 convictions of those involved in trafficking, compared to 8 in
2017.

US NOTES PH LAPSES

The report also pointed out some lapses in the Philippine government’s efforts, including failing to
prosecute trafficking suspects vigorously.

“[I]t did not vigorously investigate and prosecute officials allegedly involved in trafficking crimes,
consistently criminally prosecute labor traffickers, or increase the availability of specialized protection and
assistance services for child victims of sex trafficking or services for male victims. Access to mental health
services, employment training, and job placement for survivors also remained inadequate,” it stated.

Philippine Ambassador to the US Jose Manuel Romualdez said the report shows Manila’s “resolute”
efforts against trafficking.

“The Philippine Embassy in Washington, D.C. sustains its cooperation and engagement with US
stakeholders in order to communicate our priorities, including the importance with which we consider the
role of labor-receiving countries in the fight against human trafficking,” he said in a statement.

The report, released annually by the US Department of State since 2001, is mandated by the US Congress
under the Victims of Trafficking and Violence Protection Act (TVPA) of 2000.

The TVPA identifies minimum standards for the elimination of trafficking applicable to the government of
a country of origin, transit, or destination for victims of severe forms of trafficking.

There are four tier categories representing level of compliance with TVPA standards, namely: Tier 1 (full
compliance), Tier 2 (no full compliance but making significant efforts to comply with standards); Tier 2
Watchlist (no full compliance and absolute number of victims increasing), and Tier 3 (no full compliance,
no significant efforts to comply).8

Malaysia

According to the news article of Elly Fazaniza, of the Sun Daily. PETALING JAYA: Organised crime
syndicates in human trafficking are flourishing in Asean, particularly Malaysia, according to a report by
the United Nation’s Office on Drugs and Crime.
The 179-page said the act of trafficking to Malaysia for forced labour and sexual exploitation is due to the
country’s geographical location and comparatively higher wages, making it a popular destination for
human smugglers and traffickers.
“In addition to the flow of Rohingya from Myanmmar and Bangladesh, Malaysia is also a major destination
for irregular migrants from other Southeast Asian countries, the large majority of which are among the
roughly two million documented migrant workers, and even larger number of undocumented migrant
workers.
“Their irregular status and the presence of organised criminal groups along these migration routes
increases their vulnerability to trafficking. In 2017, Malaysian police recorded 410 cases related to human
trafficking and arrested 648 persons from 21 countries, about the same as in the previous year (645
arrested from 17 countries),“ it said.
It added that about three-fourth of those arrested in 2017 were from Malaysia, while most of the
remainder were from Thailand, Indonesia, Myanmar, India, Bangladesh, the Philippines, Vietnam and
China.
“Sixty-eight offenders were convicted in 2017. In 2018, compared to five preceding years, the number of
victims detected in Malaysia significantly decreased to 58.
“This may be a result of stronger law enforcement efforts to combat the trade, which may have had the
effect of deterring traffickers, or driving the trade underground,“ it added.
The report said there was a “strong need for more effective recruitment and migration management
systems for labour migration throughout Southeast Asia.
“Until these systems and frameworks are strengthened, migrant workers will remain vulnerable to
exploitation and trafficking at various stages of the migration process and across different sectors of work.
“In this regard, it is increasingly being recognised that the private sector also has a critical role to play. To
improve the protection of migrant workers, businesses must work to change exploitative business
practices. At the same time, governments need to provide more meaningful oversight, regulation and
effective action, which includes establishing meaningful partnerships with trade unions and civil society
organisations.”
It said there was a strong need for coordinated law enforcement and criminal justice action against
trafficking that targeted the prosecution and conviction of criminals who exploit desperate people.
“Governments in the region should strengthen the capacity of border authorities,to detect trafficking and
assist victims. It is also imperative that anti-trafficking responses are embedded into wider migration and
development frameworks that promote safe migration as well as the protection and assistance of human
trafficking victims and survivors, especially for the trafficked children, by providing specialised and
comprehensive services.
“All relevant stake holders from across government (e.g. police, immigration, labour inspectorate, social
development, health, and education departments), civil society and the private sector need to be involved
in preventing and responding to trafficking.”
Prevention measures should be strengthened through raising awareness, including targeting groups of
vulnerable populations that are at risk of becoming victims of trafficking. These should also include
measures addressing the root causes and risk factors that increase the vulnerability of women, men, girls
and boys.
Governments should also review and amend anti-trafficking laws, policies, and frameworks that
perpetuate systemic discrimination against certain groups and minorities and increase the risk of
trafficking.
“Lastly, governments in the region must take further initiatives to fully implement the Asean Convention
against Trafficking in Persons, Especially Women and Children, as well as the Protocol to Prevent, Suppress
and Punish Trafficking in Persons, especially women and children, which is a supplement to the United
Nations Convention against Transnational Organised Crime,“ it added.9

LEGAL FRAMEWORK

A. Overview of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007

The Malaysian Constitution prohibits slavery and forced labor.[1] The Anti-Trafficking in Persons
and Anti-Smuggling of Migrants Act 2007 (Act 670) (ATIPSOM Act) is the specific legislation that
addresses human trafficking. It was enacted in July 2007 and came into force in February
2008.[2] The legislation was most recently amended in November 2015.[3]
The ATIPSOM Act was enacted pursuant to the Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children, supplementing the UN Convention
Against Transnational Organized Crime. Malaysia ratified the Convention in 2004 and the
Protocol in 2009.[4] Amendments in 2010 to add provisions related to smuggling of migrants were
made pursuant to the Protocol Against the Smuggling of Migrants by Land, Air and Sea, which
Malaysia has not yet signed.[5]
Under the Act, Malaysian courts have jurisdiction to hear prosecutions of any person charged with
an offense under the Act, whether or not the alleged offense occurred within or outside Malaysia
and regardless of the nationality of the offender, if Malaysia is a receiving country, transit country,
or if the trafficking starts in Malaysia.[6] The Act also extends jurisdiction to extraterritorial offenses
committed by Malaysian citizens or permanent residents.[7]
Part II of the ATIPSOM Act established the Council for Anti-Trafficking in Persons and Anti-
Smuggling of Migrants, commonly referred to as MAPO, which consists of various government
officials and five representatives from nongovernmental organizations.[8] The 2015 amendments
added a new Part IA to the Act, establishing a High Level Committee of certain government
ministers that is tasked with deliberating on and making decisions regarding recommendations
made by MAPO.[9]

Part III of the ATIPSOM Act sets out a number of offenses related to trafficking in persons, [10] while

Part IV relates to smuggling of migrants. The main offense of trafficking in persons for the purpose
of exploitation may be punished with up to fifteen years in prison;[11] where threats, use of force,
abduction, etc. are involved, the punishment is from three to twenty years of
imprisonment.[12] Trafficking in children also attracts a maximum twenty-year term.[13] Persons
convicted of these offenses can also be fined. Other offenses include profiting from the
exploitation of a trafficked person; making, obtaining, giving, selling, or possessing fraudulent
travel or identity documents; recruiting others to participate in an act of trafficking in persons;
providing facilities or services in support of trafficking in persons; and harboring persons involved
in trafficking in persons.[14]
A trafficked person is immune from prosecution in relation to illegally entering the receiving or
transit country, unlawful residence in a country, or his or her procurement or possession of any
fraudulent travel or identity document.[15]
Similar types of offenses related to smuggling of migrants are contained in Part IIIA of the Act.
There is no immunity provision applicable to smuggled migrants in this Part.

Part IV relates to enforcement of the legislation. It provides that the following officers may
exercise powers of enforcement under the Act:

(a) any police officer;

(b) any immigration officer;
(c) an Officer of customs;
(d) any officer of the Malaysian Maritime Enforcement Agency; and
(e) any Labour Officer.[16]

Part V of the Act, related to the care and protection of trafficked persons, makes provision for the
appointment of social welfare officers as Protection Officers.[17] There are also provisions relating
to protection orders, whereby a person is placed at a shelter home,[18] and for the medical
treatment and hospitalization of trafficked persons.[19] A new provision, added by the 2015
amendment legislation, enables trafficked persons to be given permission by MAPO to move
freely or to be employed outside of refuges.[20]

Provisions in Part VI of the ATIPSOM Act prohibit media reporting and publication of certain
matters and particulars of trafficked persons,[21] and contain rules relating the admissibility in court
of various documentary and testamentary evidence.[22] The 2015 amendment legislation added
provisions to this Part that enable a court to order a person convicted of an offense under the Act
to pay compensation to the trafficked person.[23] Where there is no conviction, a person can still
be ordered to pay any wages in arrears to the trafficked person.[24]
Other legislation that may be invoked to prosecute trafficking or trafficking-related offenses
include the Penal Code, which criminalizes trafficking for the purposes of prostitution along with
other prostitution-related offenses, forced labor, and habitual dealing in slaves;[25] the
Employment Act 1955, which contains minimum labor protection standards and provisions related
to domestic servants;[26] the Children and Young Persons (Employment) Act, which provides for
limited employment of children in light work in certain sectors;[27] the Private Employment
Agencies Act 1981, which regulates recruitment agencies and grants the Director General of
Labour investigatory and inspection powers;[28] the Child Act 2001, which prohibits exploitative
acts, custody transfers for any valuable consideration, and bringing a child into Malaysia on false
pretenses as well as taking a child out of Malaysia without parental consent;[29] the Passports Act
1966, which criminalizes the withholding of passports;[30 as well as the Immigration Act 1959,
Maritime Enforcement Agency Act 2004, Customs Act 1967, Security Offenses (Special
Measures) Act 2012, and the Anti-Money Laundering and Anti-Terrorism Financing Act 2001.[31]

B. Documents Related to Policies and Procedures

In 2009, MAPO published the National Action Plan Against Trafficking in Persons (2010–
2015).[32] The Plan contains several guiding principles: government ownership of the issue, civil
society participation, human rights-based treatment of victims, interdisciplinary coordination at the
governmental level and with international organizations and nongovernmental organizations, and
systematic evaluation and sustainability.[33] The nine program areas in the Plan include
“strengthening legal mechanisms, joint action of law enforcement agencies, prevention, protection
and rehabilitation, capacity-building and partnership.”[34] It appears that a new plan for the period
2015 to 2020 has not yet been finalized or published.
In November 2013, Standing Operating Procedures (SOP) for enforcement agencies with respect
to human trafficking, and a separate SOP document related to the prosecution of trafficking
offenses, were issued by MAPO.[35]
MAPO also appears to issue other policies as needed, such as a March 2014 policy statement
regarding allowing labor trafficking victims to work in Malaysia. [36] This preceded the 2015
legislative changes related to permission to work.

C. State Department and UN Assessments of Law and Practice

Malaysia was given a Tier 3 placement in the US State Department’s 2007 and 2009 Trafficking
in Persons Report. This placement is assigned where a country’s government does not fully
comply with minimum standards and is not making significant efforts to do so. Subsequently, the
Malaysian government increased its efforts in the area of human trafficking prevention and
prosecution in order to move back to and remain at the Tier 2 Watch List level. It was placed in
this category from 2010 to 2013, but was again downgraded to the Tier 3 level in the 2014
report,[37] regarding which placement the Malaysian government expressed disappointment and
its belief that the information used for the report was flawed.[38] Malaysia was moved back to the
Tier 2 Watch List in the 2015 report.[39]
In early 2015, a United Nations special rapporteur visited Malaysia to “examine the
prevalent forms of trafficking in persons in the country and to assess the effectiveness
of measures taken by the Government to combat trafficking in persons and to protect the human
rights of trafficked persons.”[40] One of her observations was that “coordination of work between
government bodies remains a challenge, partly owing to their varying level of commitment to the
issue of trafficking and their understanding of trafficking and its impact on/relevance to their
work.”[41] She stated that enforcement officers have inadequate capacity to accurately identify
trafficked persons,[42] and she was also concerned about the “limited information-sharing and
disjointed coordination between government bodies at the federal and State levels.”[43] In
addition, she commented that the scope of civil society participation should be widened with
respect to combatting human trafficking.[44]
The special rapporteur made a number of recommendations related to improving the legal
framework, establishing a data collection system, training and capacity-building, support for
victims of trafficking, cooperation with international and regional organizations, prosecution of
trafficking cases, and raising public awareness about trafficking in persons. [45] 10

Penalties:

Act Penalty
1. Trafficking in persons Not exceeding 15-year imprisonment and fine
2. Trafficking in persons by means of threat, Less than 3 years but not exceeding 20-year
force, etc. imprisonment and fine
3. Trafficking in children Less than 3 years but not exceeding 20-year
imprisonment and fine
4. Profiting from exploitation of a trafficked Not exceeding 15-year imprisonment and fine of
person not less than fifty thousand ringgit but not
exceeding five hundred ringgit
5. Fraudulent travel or identity documents Not exceeding 10-year imprisonment and fine not
less than fifty thousand ringgit but not exceeding
five hundred ringgit
 6. Recruiting persons Not exceeding 10-year imprisonment and fine
7. Providing facilities in support of trafficking Not exceeding 10-year imprisonment and fine
persons
8. Providing services for purposes of Not exceeding 10-year imprisonment and fine
trafficking in persons
9. Harbouring persons Not exceeding 10-year imprisonment and fine
10. Intentional omission to give information Not exceeding 5-year imprisonment and fine not
exceeding two hundred and fifty thousand ringgit.
11

Philippines
https://www.academia.edu/37935721/PREVENTING_HUMAN_TRAFFICKING_IN_THE_PHILIPPINES_OVE
RVIEW_AND_CURRENT_ACTIVITIES

A. Governing Law

The basic law that instituted policies to prevent human trafficking is Republic Act No. 9208, also known as
the “Anti-Trafficking in Persons Act of 2003,” which was passed on May 12, 2003 and took effect on
June19, 2003. Section 3(a) of this law defines trafficking in persons as:

“the recruitment, transportation, transfer or harboring, or receipt of persons with or without the victim's
consent or knowledge, within or across national borders by means of threat or use of force, or other forms
of coercion, abduction, fraud, deception, abuse of power or of position, taking advantage of the
vulnerability of the person, or, 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 which includes at a minimum,
the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or
services, slavery, servitude or the removal or sale of organs.”
R.A. No. 9208 further provides that “[t]he recruitment, transportation, transfer, harboring or
receipt of a child for the purpose of exploitation shall also be considered as ‘trafficking in persons’ even if
it does not involve any of the means set forth [above].” The Act provides penalties for three categories of
trafficking:(1) acts of trafficking in persons, (2) acts that promote trafficking in persons, and (3) qualified
trafficking in persons. The penalties are as follows:

Act Penalty
Acts of trafficking 20 years imprisonment and fine of P1 to 2 million
Acts that Promote Trafficking 15 years imprisonment and fine of P500,000.00 to
P1 million
Qualified Trafficking Life imprisonment and fine of P2 to 5 million

B. Procedure for the Filing of Trafficking in Persons (TIP) Cases

A criminal action for violation of R.A. No. 9208 is commenced or instituted by the filing of the complaint
by any person who has personal knowledge of the commission of any offence under said Act; the
trafficked person, parents, spouse, siblings, children, legal guardian of the trafficked person; or by referral
from or upon the request of the law enforcement agency that investigated the incident, with the
Department of Justice or the office of the prosecutor that has jurisdiction over the offense charged. The
complaint shall state the full names and addresses of the complainant/s and respondent/s, offense/s
charged and the place and approximate date of commission. It shall be accompanied by the affidavits of
the witnesses, as well as other supporting documents to establish probable cause. The complaint is either
filed for preliminary investigation or inquest proceeding.

Preliminary investigation is an inquiry or proceeding to determine whether there is a sufficient ground to

engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof, and should be held for trial. 6 In a preliminary investigation, the investigating prosecutor makes a
determination if there is probable cause to file an indictment in court. Probable cause is a reasonable
ground of presumption that a matter is so or may be well-founded; such a state of facts in the mind of the
prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or
strong suspicion, that a thing is so.7 A finding of probable cause does not require an inquiry into whether
there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged, as there is a trial for the reception of evidence of the
prosecution in support of the charge.8

Generally, a prosecutor is afforded wide latitude of discretion in the conduct of preliminary investigation.
The prosecutor alone determines the sufficiency of evidence that will establish probable cause justifying
the filing of the criminal information. The prosecutor’s findings are, however, subject to review by the
Secretary of Justice.9

In turn, judicial review of the resolution of the Secretary of Justice is allowed only in clear cases of grave
abuse of discretion, that is, when the exercise of the discretion was done in an arbitrary or despotic
manner by reason of passion or personal hostility and must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to act at all in the
contemplation of law. 10

A preliminary investigation is not required in cases of “warrantless arrests.” When a person is lawfully
arrested without a warrant involving an offense for violation of R.A. No. 9208, the indictment may be filed
by a prosecutor without need of such investigation, provided an inquest proceeding has been conducted.

Court of Appeal. 1 Joy Ngozi Ezeilo Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children
A/HRC/10/16 (2009) at 5.
2 Ibid, at 9
3https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html
4https://www.unodc.org/unodc/en/human-trafficking/what-is-human-trafficking.html
4 United States Department of State Trafficking in Persons Report 2009 (2009) at 8.
5 Report of the Special Rapporteur above n 2 at 6.
6 Patrick Belser Forced Labour and Human Trafficking: Estimating the Profits (2005, Minimum Estimate of Forced Labour in the World Working Paper) at 15, cited in O’Driscoll “AT v Dulghieru:
Accounting for the Profits of Sex Trafficking” (2009) 40 VUWLR 695. 7 United State Department of State Trafficking in Persons Report 2010 (2010) at 7.
8https://news.abs-cbn.com/news/06/21/19/ph-fully-meets-standards-in-measures-vs-human-trafficking-us-report
9https://www.thesundaily.my/local/human-trafficking-flourishing-in-malaysia-and-asean-un-report-EX1176431
10 https://www.loc.gov/law/help/human-trafficking/malaysia.php
11https://www.unodc.org/res/cld/document/mys/2007/anti-trafficking_in_persons_act_2007_html/Malaysia_Anti-TIP-Act-

670_2007.pdf