No
country, irrespective of its geographical situation, political
systems, religious moorings or cultural practices, is immune
from trafficking - the contemporary form of slavery. It
is often described as a highly complex issue, interwoven
with demand and supply, sex tourism, labour migration, forced
marriages, bonded labour and other similar practices.
According
to the US State Department’s Annual Report on Trafficking
in Persons, between 800,000 to 900,000 women, children,
and men are trafficked each year. Around one third of them
i.e. about 230,000 are trafficked within and from Southeast
Asia. Around 30% of commercial sex workers in Southeast
Asia are under 18 years of age. Some are as young as 10. In India alone, reportedly an estimated
2.3 million are engaged in prostitution, a quarter of whom
are minors.
Though
gender is the central aspect of trafficking, it is essential
to go beyond gender to understand the root causes of trafficking
and develop programmes of action accordingly.
First,
while the victims of trafficking come from different races
and nationalities, indigenous peoples/hill tribes and ethnic
minorities have been disproportionate victims of trafficking
because of the age-old prejudices and institutionalised
discrimination against them based on their origin, conflict
in the areas where they live and extreme poverty, gender
discrimination, illiteracy, unemployment and most importantly,
impunity.
Majority
of the victims of trafficking are refugees, undocumented
migrant workers and internally displaced persons who often
flee to escape from internal armed conflicts and gross human
rights violations including torture, rape and extrajudicial
killings. Beyond the wars in Iraq and Afghanistan, internal
armed conflicts in Asia - whether in Bangladesh, India,
Indonesia, Laos, Myanmar, Nepal, Philippines and Sri Lanka
- involve ethnic minority groups. The hill tribes in Cambodia,
Thailand and Vietnam are victims of institutionalised discrimination.
While addressing the issue of trafficking, the root causes
of the armed conflict are often sidelined by diplomatic
niceties and self-censorship. Priorities are rightly given
to immediate pressing needs – identity cards, refugee certificates,
HIV/AID programmes etc but the root causes remain alive.
Second,
most governments in the Asia-Pacific region have adopted
some form of anti-trafficking laws. Yet, the victims of
trafficking are
first considered as undocumented migrants or criminals or
both, before being considered as a victim of trafficking.
Most
importantly, many governments continue to have laws which
make citizens or persons under the jurisdiction of a country
“illegal” and make them easy prey of the traffickers
and their agents.
Undoubtedly,
combating trafficking requires comprehensive programme of
action for rescue and reintegration, access to health care
and education, awareness raising and advocacy for the communities
and law enforcement personnel and a sound legal framework.
However, without creating conducive condition for enforcement
of the law and restoration of the faith of the victims in
the majesty of the rule of law without any fear of retribution
from the traffickers and their agents, other programmes
of action are bound to fail.
In
many situations, trafficking of persons is interlinked with
the political instability and repression in the country.
For example, the trafficking of Myanmarese nationals is
interlinked with the political situation in that country
and without improvement of the situation in Myanmar, trafficking
of Burmese nationals is unlikely to end.
The 13th Workshop
of the Framework on Regional Cooperation for the Promotion
and Protection of Human Rights in the Asia-Pacific Region
must consider such critical issues while addressing the
issue of trafficking.
Suhas
Chakma
Director
Many
countries continue to have laws which contribute to trafficking
by making a section of citizens or residents within their
jurisdiction “illegal”.
In
most countries infants are registered at birth. However,
the records of a child of a Burmese asylum seeker born in
a Thai hospital are removed and not registered. In addition
to the refugees and migrants from Myanmar and Laos, the
hill tribes who are subjects of Thailand are also deprived
of birth registration. These children remain most vulnerable
to trafficking.
The
government of Thailand had expressed reservations to Article
7 and 22 of the Convention on the Rights of the Child by
stating that "The application of articles 7, 22 ....
of the Convention on the Rights of the Child shall be subject
to the national laws, regulations and prevailing practices
in Thailand."
The
denial of birth registration has been a long standing dispute
between Thailand and international agencies as it blatantly
violates Thailand’s obligation under international law.
On 4 August 2004, key UN agencies based in Bangkok including
the Office of the High Commissioner for Human Rights, United
Nations High Commissioner for Refugees, UNESCO and UNDP
and a few international non-governmental organizations reportedly
wrote a joint letter to the government of Thailand on the
birth registration of children of non-citizens. As of today,
Thailand government has failed to provide any answer.
In
addition to the migrants, the government of Thailand also
imposed restriction on the freedom of movement to the hill-tribes
whose applications for citizenship are being processed.
Article 36 of the 1997 constitution allows imposition of
restriction on the right to freedom of movement in the name
of "maintaining the security of the State, public order,
public welfare, town and country planning or welfare of
the youth".
About
3,77,677 indigenous hill tribes who have not been granted
citizenship as yet continue to be issued different colours
of identity cards. Each colour reflects the extent of restrictions
on the freedom of movement and the racial discrimination
against the hill tribes. For them, Thailand is an “Open
Jail”.
Blue
identity cards are used for highland people who were registered
in 1993 after "surveying of highland persons for the
issuance of personal history cards" in 1990-1991. This
card provides as to where the individual is currently residing
in Thailand and restricts all movement outside the surrounding
province. To travel out of the province or district, permission
must be sought from the district head. If the duration of
the travel is more than 10 days permission must be sought
from the Provincial Governor. Offenders of this restriction
face a heavy fine and a jail term. Holders of this card
have no right to employment in urban areas, education, the
right to buy land or even to purchase a car.
Green
cards with a red border further restrict the rights and
freedom of movement. Holders of this card are restricted
to movement only within their immediate district and offenders
are once again subject to heavy fines and jail terms. This
card is given to those who were not registered in the first
round in 1993. These people are considered to have migrated
to Thailand since 1999, even though in reality the families
of many have resided in Thailand for generations.
Pink
card holders must seek permission from the district chief
if they travel out of village or sub-district. To travel
out of the district, they must seek permission from the
governor. To travel out of the province, permission must
be sought from the Permanent Secretary of the Ministry of
the Interior.
Where
the hill tribes live, police officers regularly check the
transports and demand to check the identification cards
of all passengers. The passengers belonging to the hill
tribes are addressed as Khon Tang Dao, alien people,
and ridiculed, as if they belong to another planet.
Women
belonging to the hill tribes who have not been accorded
citizenship as yet cannot register births or marriages.
They are denied opportunities for education and work, and
cannot access public health care services through the universal
health care plan. Financial hardship or loss of farmland
often drive hill tribe women and girls from their villages
to cities where their lack of legal status pushes them into
exploitative situations. Traffickers and unscrupulous employers
capitalise on the fact that these indigenous peoples are
unable to prove their eligibility to legally work in their
country of origin and are, as such, considered “illegal
aliens”. They are at the mercy of the employers and traffickers.
In
fact, fear of and intimidation by Thai police and government
officials have denied Burmese migrant workers and hilltribe
people along the northern border access to HIV/Aids treatment
and education.
On
29 August 2000, the Cabinet adopted a resolution to complete
the review of citizenship applications by 28 August 2001.
The process was to have been completed within one year.
Since then the Cabinet of the government of Thailand adopted
resolutions on 28 August 2001, 27 August 2002, 26 August
2003 and 24 August 2004 respectively. The process has been
marred by discriminatory laws and procedures, apathy and
prejudices against the hill tribes, corruption by the bureaucrats,
excessive powers in the hands of the District Chief, lack
of any judicial or quasi-judicial oversights over the process
and the lack of cooperation with the civil society groups.
Under the hukou system as provided under the Provision of the People's
Republic of China on Household Registration of 1958, citizens
do not have the right to selecting the place of their residence.
Migration is permitted only in cases relating to job assignment
and transfer, and school enrolment. Those who migrate without seeking permission
are “illegal” and can be subjected to detention and various
punishments. They are also denied of access to a range of
economic, social and cultural rights.
According
to the estimate of an authoritative department, China's
floating population would be about 130 million by 2005. Many are illegal in their own country.
In 2000, there were reportedly 3.2 million
instances of detention under Custody and Repatriation. The
"vast majority" of detainees were internal migrants
from rural areas.
Since
1990, there have been reforms of hukou system but
they failed to address the basic problems. The demands for
changing hukou system found resonance in the National Peoples
Congress (NPC) of China. But, the response of the government
has been slow.
In March 2002 session of the National Peoples
Congress, Chen
Lini, a NPC deputy from Guangdong Province put forward a
motion on the right to free migration by amending the constitution. Chen reportedly pointed out in her motion
that Article 12 of the International Convention on Civil
and Political Rights signed by China in 1998 prescribes
the scope of free migration: everyone legally staying in
the territory of a country enjoys the freedom of migration
and the freedom of selecting one's residence in the territory.
Early
in 2003, a total of 134 representatives of NPC headed by
Lu Binghua submitted a bill. The Commission of Legislative
Affairs of the NPC reportedly recognized that the Provision
on Household Registration endorsed in 1958 could no longer
meet the needs for economic and social development in China,
thus reform of the household registration has become an
imperative task. The Ministry of Public Security
has been assigned to conduct research on making a household
registration law.
In
March 2005, the government of China has reportedly begun
drafting a new law on household registration. The research
paper reportedly argued that a country's residential registration
system should only have two functions - proving an individual's
identification and calculating the population.
Unless
the new regulation presently being drafted by the government
of China is restricted to two functions i.e. proving an
individual's identification and calculating the population,
any penalty, punishment, restriction on the freedom of movement
has the potential to make internal migrants as “illegal”
and therefore, potential victims of trafficking and other
forms of exploitation.
Ethnicity
is a key factor of the low intensity conflicts in Bangladesh,
India, Indonesia, Laos, Myanmar, Nepal, Philippines, Sri
Lanka and Vietnam. Hundreds of thousands of indigenous/hill
tribes and ethnic minorities have been forced to flee to
escape from the problems associated with conflicts including
gross and flagrant human rights violations by the security
forces and armed opposition groups.
The
camps of the IDPs and refugees are the hunting grounds of
the traffickers and their agents.
Yet,
most governments do not have policy with regard to the refugees
or IDPs. Often, international humanitarian agencies are
not provided access to the camps in the name of national
security.
In
Thailand, only an estimated 1,50,000 Burmese refugees have
been allowed to register to live in refugee camps, leaving
more than one million others to live illegally both inside
and outside of the refugee camps. In 2004, some 1,29,000 migrants applied
to Thai authorities for work permits as domestic servants,
although according to unconfirmed reports there are 70,000
others working without registration papers. About two-thirds
of the domestic workers are from Burma.
According
to some estimates, 90% of trafficked sex workers in northern
Thailand are Burmese nationals.
While
it is easy to classify refugees and migrants from Myanmar
as “Burmese” on the basis of their nationality, the large
majority of these Burmese refugees belong to ethnic minority
groups who have been engaged in decades old armed conflicts
with the State Peace and Development Council. In addition,
the refugees from Laos in Thailand belong to the ethnic
Hmongs.
In
recent years, refugees fleeing from Northern and Central
Highlands of Vietnam to Cambodia belong to the ethnic minorities.
A
study by International Labor Organization (ILO) in 2004
found that hill tribes of Nepal have been disproportionate
victims of trafficking. The study shows that out of total
trafficked persons, 43.1 percent belong to hill ethnic groups
followed by 23.8 percent from Brahmin/Chhetri; 22.4 percent
from occupational castes; 3.3 percent from Tharu and Chaudhary
communities, and 7.2 percent from Terai and others. Around 12,000 Nepalese women and children
are trafficked every year to India for the purpose of prostitution.
The Maoists conflict, which is more concentrated in the
areas of hill tribes, has further increased the vulnerability
of the hill tribes to trafficking.
According
to a report of the government of India of 1998 “about 60%
of the victims (of trafficking) belong to the Scheduled
Castes and Scheduled Tribes and the Other Backward Castes”. This is not surprising considering that
tribal peoples have been disproportionate victims of forced
displacement of the development projects undertaken in India.
According to the Ministry of Tribal Affairs of the government
of India, “Nearly 85.39 lakh tribals had been displaced
until 1990 on account of some mega project or the other,
reservation of forests as National Parks etc.
Tribals constitute at least 55.16 percent of the
total displaced people in the country.” The fact that the tribals who constitute about
8.1 percent of the total population of the country also
constitute 55.16%
of total displaced people is indicative of the massive victimisation
of tribal peoples. According to the 10th Five
Year Plan of the Government of India, out of the 8.54 million of the tribals displaced between
1951 and 1990 in the states of Andhra Pradesh, Bihar, Gujarat,
Maharashtra, Madhya Pradesh, Rajasthan and Orissa, only
2.12 million (24.8 per cent) could be resettled, so far.
“Despite the increasing number of girls
and women being trafficked from the country, we are not
able to control it as the offenders are getting the protection
of highly-placed political officials” - Shashi Kanta
Mainali, secretary at the Ministry for Women Children and
Social Welfare, government of Nepal on 10 May 2004.
Cross-border
trafficking across South Asia and South East Asia is common,
systematic and widespread. Often victims of trafficking
are also victims of serious human rights violations both
at the hands of the traffickers and the law enforcement
personnel as most governments treat victims of trafficking
as undocumented migrants, criminals, or both. The cooperation among the governments
for apprehension and prosecution of the traffickers and
their agents is awfully inadequate.
Most
programmes for combating trafficking in persons remain adhoc and episodic.
Human trafficking is a big business with involvement of
organised criminal gangs and complicity of the corrupt border
guards, police, state officials and sometimes, political
leaders and members of the judiciary. It requires comprehensive
interventions for enforcement of the anti-trafficking laws.
Yet, most programmes
of the governments, United Nations agencies etc to combat
trafficking focus on activities such as awareness building
among potential victims and communities, information exchanges,
rescue and rehabilitation efforts, training and capacity-building
programmes. The law enforcement, which is most critical
to break the criminal gangs, is often ignored. Impunity
contributes to further trafficking.
The
collection of accurate and disaggregated data is fundamental
for understanding intensity and complexity of trafficking
and taking appropriate measures to combat the menace. Yet,
“The scale of the phenomenon (of trafficking) is difficult
to judge” is a common refrain of all the governments. Today,
most governments, agencies and NGOs rely on the figures
provided the United States State Department’s Annual Report
on Trafficking in Persons. It will not be an understatement
to state that the attempts of many governments are aimed
at not to be listed in different tiers by the United States
State Department rather than combating trafficking on their
own volition.
Given
the complexity of the trafficking menace, there are obviously
no ready made fix solutions. However, the governments must
take certain measures to ensure that their laws, policies
and practices do not directly and indirectly contribute
to trafficking and the measures taken also address the root
causes of trafficking.
Asian
Centre for Human Rights, inter-alia, makes the following
recommendations for consideration by the 13th
Annual Meeting of the Asia-Pacific Regional Framework:
-
Ensure collection
of disaggregated data of the victims of trafficking on the
basis of their ethnic origin/nationality;
-
Amend all laws
such as Nationality Laws of Thailand and Provision of the
People's Republic of China on Household Registration of
1958, which restrict birth registration, restrict the freedom
of movement and impose punishment and make such persons
vulnerable to trafficking;
-
Ensure that anti-trafficking
laws do not victimise and criminalise the victims of trafficking;
-
Ensure a cheaper
and simpler method for issuing work permits for all migrants
including the provision of better information about
the rights of migrants and their families and effective
inspection of workplaces to ensure compliance with labor
standards and the enforcement of legislation combating human
trafficking.
-
Recognise the rights
of refugees and ensure proper registration of all refugees
and internally displaced persons;
-
Ensure proper rehabilitation
for the IDPs and access adequate humanitarian assistance
including to the United Nations and humanitarian agencies;
and
-
Institutionalise
cross border cooperation by signing bilateral and multilateral
agreements, among others, for sharing of information and
apprehension and prosecution of the traffickers and their
agents.
