subscribe: Posts | Comments

Langkawi Arrivals: An important link to transnational organized crime

0 comments

By: Renuka T. Balasubramaniam

 

Photo Credit: The Telegraph, UK

 

The arrival of 1158 maritime arrivals on Sunday 10th May 2015, at Langkawi has raised a great deal of international and local attention for a variety of reasons. The head of strategic planning at the Anti-Trafficking of Persons Council has taken the position that the arrivals are not victims of trafficking due to the fact that they had paid the smugglers to embark on the journey. What’s worse is the Deputy Home Minister was reported as saying other boats would be turned away.

Civil society activists outraged by these statements have called for the arrivals to be considered and dealt with as victims of trafficking due to the presence of exploitation and inhumane and degrading treatment enroute to Malaysia. Furthermore, in tandem with the non-refoulement principle ie the non-return to persecution, of persons claiming asylum as per the Universal Declaration of Human Rights, demands for their protection are being made. 486 of the arrivals have been identified as being from Myanmar and 672 as being from Bangladesh. Of these numbers 104 are women and 61 are children. Malaysian authorities however have definitively concluded that the fact that Malaysia has not signed the Convention Relating to the Status of Refugees 1951 and its 1967 Protocol or the Convention relating to the Status of Stateless Persons is sufficient grounds to avoid the discussion about its obligations to asylum seekers.

The operations surrounding the management of the arrivals are being coordinated by the Ministries of Foreign Affairs and the Ministry of Internal Affairs through its various agencies. The Ministry of Internal Affairs has decided that all the arrivals will be treated as illegal migrants and detained in the immigration detention camp at Belantik pending deportation. On 15 May 2015 the Ministry of Foreign Affairs issued a statement condemning the acts of the people smuggling syndicates and recognizing the negative impact this would have on Malaysia’s domestic concerns. It then went on to reiterate its commitment to “working closely with the affected countries towards adopting the Regional Plan of Action (RPA) on investigation and prosecution of trafficking in persons” which will be submitted to the 10th ASEAN Ministerial Meeting on Transnational Crime (AMMTC) on 28 September 2015 – 1 October 2015.

On the same day the Deputy Minister for Home Affairs Wan Junaidi Jaafar told CNN on that others estimated to be adrift in the Andaman sea would be turned back and were not welcome in Malaysia as it would lead to hundreds and thousands more arrivals.

This may seem to be an issue of concern only to refugee and migrant rights activists but it is more than that.Migrant trafficking and /or smuggling is among the list of transnational organized crimes (TOC). These are crimes that have the insidious power to destabilise our economy and governance. TOC is an 870 billion dollar industry which creates new forms of crime, compromises legitimate economies and has a direct impact on governance such as through corruption and the buying of elections. This is 6 times more than official development assistance. In Malaysia the kidnapping and trafficking of children for forced begging, burglary or pick-pocketing, the sacrifice of the morals of our youth to the sex trade and drugs, the brutal public firearms killings , the rise of identity theft or breaches to private data resulting in financial losses, extortion, racketeering, the sale of fraudulent drugs, food and counterfeit products are just some examples of the expansive reach of transnational organized crime. Transnational organized crime has a hidden ability to increase the power of local criminals. Unbeknownst to the public, the underbelly of society is growing like a cancer and it is aggravated by the indifference of the Malaysian public towards what is considered in isolation, as a matter of no concern to citizens.

Legislation is already in place to enable cross border investigation as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 criminalises arranging, facilitating or organizing, a person’s unlawful entry into Malaysia. This applies regardless of whether the conduct constituting the offence took place inside or outside Malaysia and regardless of the nationality or citizenship of the offender. The Act applies where Malaysia is the receiving country and even if it took place anywhere outside the limits of Malaysia, it may be dealt with as if it had been committed at any place within Malaysia. The fact that the perpetrators may not be Malaysian is irrelevant because only a thorough investigation will disclose more. Potential offenders under the Act are persons who make financial services or facilities available having reasonable grounds to believe that the facilities will be used, persons who own or operate conveyances that transport such persons. The enactment of this legislation was pursuant to the ratification of the UN Convention on Transnational Organized Crime

Bangladesh and all ASEAN states except Singapore, have ratified the Convention on Transnational Organized Crime. Articles 24 and 25 of this convention cover protection and assistance to witnesses and victims to facilitate successful apprehension of the perpetrators of these crimes. Pursuant to Article 18 States have further agreed provide each other with a wide range of legal assistance when requested. These may include the taking of evidence or statements from persons; executing searches and seizures and freezing assets; examining objects and sites; identifying or tracing the proceeds of the smuggling activities which led to the arrivals and providing originals or certified copies of government, bank, financial, corporate or business records. Yet the most common and convenient response by investigating authorities is the handing over of the victim –witnesses to the authorities in the country of origin and washing their hands off the matter. So much for international cooperation in combatting transnational organized crime.

Additionally, Malaysia has ratified the Convention on the Law of the Sea and is obliged to “require the master of a ship flying its flag (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him”. Hence turning away the boats is not an option.

If we take the position that our engagement in this issue should be motivated by compassion alone, as altruistic as that may be it is far too arbitrary. My capacity for compassion might be worse than yours. Malaysia cannot and should not be allowed to evade the labeling of these arrivals with anything that may have legal ramifications and thereby shirk its legal obligations without public and international condemnation. If non-ratification is justification for denying protection within a refugee context, then no justification remains for the omission investigate transnational organized crime and respond to distress at sea.

There are enormous implications surrounding the steady stream of trafficked and smuggled persons entering Malaysia daily. Parliament in its wisdom has enacted these laws for the protection of Malaysians but they would be in vain if they are not used as they should be. The entrants are an important link between the Malaysian public and transnational criminals. They are witnesses which crime bosses who infiltrate our community with such impunity, would like ‘disappeared’. If we are to strike back at the unlimited funds of transnational organized crime, we must respond with unparalleled competence and unyielding diligence at every opportunity that arises.

 ___________

Renuka T. Balasubramaniam is an advocate and solicitor pursuing her Postgraduate Reseearch in  International Law at La Trobe University, Melbourne.

Leave a Reply

Your email address will not be published. Required fields are marked *