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TEXT BY Elroi Yee, Lim May Lee, Ian Yee, Samantha Chow
VIDEOS BY R.AGE

The night is warm when we visit Jamal (not his real name) at his kongsi, a local term for the makeshift housing given to construction workers. We are in the repurposed shipping container he shares with up to 10 other workers, seated on the bare floor, chatting about how he came to be a construction worker in Malaysia. A table fan buzzes at full speed in a corner. We can only imagine how hot it would be during the day.

Jamal is one of the many Bangladeshi students R.AGE spoke to as part of our investigations into the student trafficking trade, where young Bangladeshis are scammed into spending their life savings on a Malaysian college education. Many times, they arrive only to realise they’ve been enrolled in bogus colleges that exist mainly as a front for trafficking.

We sneak past the hired security guards that restrict access to these kongsi by dressing as migrant workers and stowing our cameras in nondescript bags. Our Bangladeshi contact tells us to keep a low profile: the kongsi is under the “protection” of local Indian thugs.

We have just spent less than an hour with Jamal, and he has already told us how he was cheated by an agent to come to Malaysia to work under a student visa. How his family had to borrow heavily to pay the agent Tk325,000 (around RM17,000). And how a college lecturer arrived to receive him at the airport in Malaysia, then left him to his own devices. How he called a number he was given by his agent, which led him to another agent. And how this agent sent him to a halfway house somewhere in Puchong, where he was extorted for more money. How he had to borrow again. And how his new life here in Malaysia is one of hard manual labour at construction sites, unbearable living conditions and constant fear of arrest.

It’s a long story of lies, exploitation, disappointment. But for now, Jamal wants to show off.

“This is my workplace,” he says as he shows us a photo of an under-construction toilet, taken on his mobile phone. “And this is during our meeting time.” It’s a photo of construction workers gathered before what looks like a Malaysian superviser. “And this is the work I do.” He scrolls through photos of pipe fittings, toilet bowls, sinks.

There are photos of a bathroom nearing completion. “All very beautiful,” he says in halting English. “My work, my project”.

What about the toilets here in the kongsi? we ask. Jamal scoffs at the comparison: “No that one is bad,” he says, shaking his head almost violently. “I don’t like it.”

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Suffering in silence

This is the reality of life in many Malaysian construction sites. Construction workers are almost exclusively made up of low-wage migrant labour, most of whom do not have valid work permits, and are housed in slum-like conditions no reasonable person would find acceptable.

One Bangladeshi worker even described conditions as being “worse than the garbage dumps in the slums of Bangladesh”. He tells us how there are only three toilets for 400 workers. Workers bathe in the open, by a giant concrete water tub.

See the R.AGE photo essay of life inside a kongsi

Rooms are often plywood shacks stacked two stories high, or shipping containers, packed close to each other. Electricity is usually tapped from the nearby construction site, and to save costs, workers usually set up their own kitchens, using gas stoves.

It’s a tinderbox full of fire hazards, with no clear fire escape routes. In fact, more than a few kongsi have caught fire before, with fatal results.

“Employers provide these kinds of housing to their workers because they can get away with it,” says Ashik Rahman, founder and executive director of Migrant88, a migrant rights advocacy group.

“Especially for undocumented workers, (because) they have no way of voicing their concerns, not just about their living conditions, but about the terms of their employment, their salary, and other abuses.

“It’s easy for employers or agents to get them arrested and deported under some trumped up charge, so they stay silent.”

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Lawless homes

Experts estimate that for every legal migrant worker in Malaysia, there are up to two undocumented workers – meaning workers who do not have valid work permits. Since the vast majority of workers are in no position to lobby their employers for better accommodation, there is little incentive for employers to improve conditions.

And then there is the matter of the bottom line.

“For most contractors, their priority is to make as much money as possible,” says Construction Industry Development Board Malaysia (CIDB) chief executive Datuk Ahmad Asri Abdul Hamid.

“If (contractors) were to provide proper housing, the cost would be higher, so the natural choice would be to provide kongsi.”

Compounding this problem is the lack of legislation governing housing for construction workers. The Workers’ Minimum Standards of Housing and Amenities Act 1990 covers the mining and plantation sectors, but not construction.

Although there are guidelines, quality standards, and recommendations put forward by government agencies and the International Labour Organisation, none are legally binding. Employers who do not provide adequate amenities for construction workers cannot be punished, unless the amenities run afoul of basic health and sanitation laws, and pose an immediate health risk. That is an extremely low standard of living.

We ask Ahmad Asri how he feels when he visits construction worker hostels. “Sad,” he says simply. “I don’t know what other word to use, when you see people living in those kind of conditions. I don’t think any Malaysian can accept (living like that).”

But there have been efforts to improve matters. As part of its Construction Industry Transformation Plan, CIDB has drawn up guidelines for construction worker housing, which it is encouraging contractors to adopt.

But similar to other guidelines and recommendations, it does not carry the force of law.

The Ministry of Human Resource is working to table a new act in January 2018 that will specifically legislate construction worker housing and amenities. It was supposed to be tabled this year, but has been delayed. All these efforts are geared towards making the construction industry more “sustainable”.

Click here to see CIDB’s progress report on improving the construction industry’s workplace safety and workers’ amenities.

“To me, developers and contractors, aside from looking at making money and short-term profits, they need to look at long-term sustainability from all aspects,” adds Ahmad Asri. “At the moment, only migrant workers are willing to accept these living conditions. In the long-term, that is not sustainable.”

Malaysia simply cannot depend on cheap migrant labour forever, he concludes.

But to Ashik, the inhumane living conditions are just the tip of the iceberg. “These kongsi are literally outside the law,” he says. “Workers are routinely extorted, cheated of their salary, overworked, have their passports taken away. All of this happens in the kongsi, all the time.”

Again, as most of the workers are undocumented, they do not report these abuses. Ashik also adds that keeping workers cooped up in kongsi, surrounded by high fences and guarded by hired security, allows employers to control their movements and keep prying eyes away.

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Illegal or exploited

For years, migrant rights advocates have been protesting the use of the term “illegal immigrant”. They prefer the term “undocumented” rather than “illegal”. And it’s not not semantics, they say. It’s the law.

If an immigrant does not possess valid documents, that does not automatically make him illegal. He could be a victim of an errant employer who failed to apply for his permit. After all, the employer is legally responsible for his/her workers’ employment permits.

The undocumented worker could also be the victim of human trafficking, in which case, all immigration offences committed by the victim are automatically pardoned, since they were committed through no fault of his own.

However, these nuances are often lost during enforcement action.

Between Jan 1 and Oct 20 this year, the Malaysian Immigration Department carried out 12,249 operations targeting illegal immigrants, resulting in 37,909 arrests. During the same period, 1,087 employers were arrested.

“The policy seems to be to criminalise undocumented migrants without finding out how they became undocumented in the first place,” says Aegile Fernandez, director labour rights association Tenaganita.

“What about the employer or agent who exploited them and caused them to be undocumented in the first place?

“We are not brave enough to take serious action against the perpetrators. We are not brave enough to protect the victims.”

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The letter of the law

There are legal instruments to protect migrant workers from exploitation, most notably the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (ATIPSOM).

The act broadly defines the offence of “trafficking in persons” and other related crimes, levies stiff penalties, and offers state protection to victims. Victims of trafficking are allowed refuge in government shelters and freedom of movement to seek employment while their cases are being investigated and heard in court.

Migrant rights groups are by and large happy with the law, which was amended in 2015 to include protections for victims, but contend that its implementation leaves much to be desired.

“The definition of ‘trafficking in persons’ is being interpreted differently by different government agencies,” says Fernandez, who explains that the interpretations are often narrow and legalistic, requiring some clear form of exploitation to have taken place.

“I’ve had police officers ask ‘Ada keluar darah tak (is there bleeding)?’ That seems to be that officer’s definition of exploitation.”

These narrow interpretations make it difficult to charge cases of student trafficking. The crime of trafficking is defined as “acquiring or maintaining the labour or services of a person through coercion”.

However, students are not here to work, they are here as paying customers of a higher education institution, although it can be argued that student traffickers are maintaining the “services” of the students as an income source. In our interactions with the government agencies involved, this interpretation is often disputed.

Often, cases are advised to be charged as cases of fraud, not trafficking. This means the victims are not allowed the protections under ATIPSOM.

Investigations and court cases often drag on for months, even years. During this period, the student will not be able to work to support themselves, since Malaysia’s immigrations laws prohibit students from working outside of long study breaks. And if they wish to continue their studies at a genuine college, they will need to apply to their current college — the college they are accusing — to release them.

There simply is no incentive for victims to voice out.

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The modern human trafficking trade

Human trafficking has become a lot more sophisticated. The old modus operandi of forcibly transporting victims into slavery abroad is no longer the only way. Traffickers today often operate under the guise of manpower agents or education agents, businessmen who operate in grey areas of the law.

As part of our investigations into student trafficking, our journalists went undercover and spoke to a slew of “education agents” and college staff who knowingly profited from this trade. None behaved like criminals, all spoke like experienced salesmen.

The Immigration Department, Ministry of Higher Education and even the Deputy Prime Minister have since pledged to help tackle this problem, but few victims dare to come forward with evidence, as going by the letter of the law places them in a vulnerable position. Many instead prefer to work illegally to pay off their debts.

Fernandez says that’s why we need to start thinking out of the box. “The traffickers are always two steps ahead of us. They are getting very creative in evading the law. We need to keep up with them.”

She mentions specifically the cases of student trafficking, and how government agencies are struggling to decide which law to take action with.

And the victims aren’t just worried about their own safety – they often have to worry about their families too. “These traffickers are rich enough to make trouble for their families in Bangladesh,” says Ashik.

“For a person whose dream is to lift his family out of poverty by working or studying abroad, that must be the worst fear.”

When we raised these issues with the Anti Trafficking in Persons and Smuggling of Migrants Council, a high-level official vigorously defended the government’s policies.

On condition of anonymity, the official says the government is working hard to address the crimes of human trafficking and smuggling of migrants, but cannot always “advertise” its efforts as there are cross-border sensitivities and diplomatic relationships that need to be managed delicately.

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Nowhere to rest

There is a nightly exodus of migrant workers at Jamal’s kongsi. Hundreds of them leave their shanty rooms and take a short trek across the construction site to a nearby jungle. There, among the dense undergrowth, in shacks made of scrap wood and tarpaulin sheets, is where the workers sleep. The lucky ones have mosquito nets.

We are with Jamal, just outside the jungle, as he points out where the shacks are. Apparently, there have been a series of raids at this kongsi, so the workers are now afraid to sleep there. Instead, most of them now sleep hidden in the jungle, while some find shelter under a nearby highway overpass. Some even slept out in the open, ready to sprint into hiding if they receive news of an immigration raid.

“I made a mistake coming here,” Jamal tells us. “If I knew it would be this way, I wouldn’t have come.”

But he’s already here. He’s crossed into Malaysian borders, and Malaysian laws dictate that he is working here illegally, even though he was cheated.

He can choose to return to Bangladesh, but that would mean forfeiting the huge amount he paid to get here in the first place and returning to a mountain of debt impossible for him to repay. He could try filing a report, but we know how that would end. Jamal has no choice.

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