Can there be a ‘right’ to be trafficked?

17 January 2023

TRAFFICKING in persons, or human trafficking, thrives rapidly due to the growing usage of social media and desperation to increase financial stability in the post-pandemic age we live in.

This crime has been defined under Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000 (Trafficking Protocol 2000), which requires three main elements.

Firstly, an act by the traffickers is required. This can be seen through their method to bring vulnerable persons to their preferred location either by recruitment, transportation, transfer, harbouring or receipt of persons.

Secondly, there must be a means to be trafficked. In this regard, the traffickers may use coercion, abduction, deception, giving or receiving of payments, or benefits, to achieve the consent of a person for bringing them to their preferred location.

Thirdly, the purpose of such an act must be for the exploitation of the person involved.

The forms of exploitation vary from sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.

In Southeast Asia, countries such as Laos, Cambodia and Myanmar have been in the limelight these recent months as several Malaysians were discovered to be victims of online scams.

These scams operate through social media platforms where enticing job opportunities with attractive salaries are advertised to recruit people for their labour for similar operations.

Though authorities have taken initiatives to repatriate victims of human trafficking, several refuse to be rescued although no reason was given.

It can be inferred that their reluctance to return home can be due to running away from problems at home in Malaysia such as gambling debts, borrowings from loan sharks and family disputes.

Moreover, some individuals thrive at their jobs and earn respectable or lucrative salaries and benefits, making them hesitant to return home because the money sent back home to their families is indeed appealing, especially when the ringgit’s worth is contrasted with the Cambodian economy, which is dollarised.

However, it has been provisioned in the Trafficking Protocol 2000 that the element of consent, that may be given by victims to be trafficked, is irrelevant once the means have been proven.

This begs the question of whether a person, who is willing, has a right to be trafficked.

To answer such a question, we shall delve into the two theories of rights which are the will theory and the interest theory with the purview of liberty.

Will theory views have been supported by English philosopher John Locke, who viewed that, “The basis of the right is the will of the individual.”

This theory provides that rights are an inherent attribute of human free will.

L. A. Hart, another English legal philosopher, maintained this theory and argued that rights are entitlements that allow the right holder to use them in a way that they consider appropriate, including the possibility of waiving the right.

This implies that laws serve the purpose to permit such rights.

Therefore, this theory upholds individual rights per their liberty.

Hence, if persons are willing to be trafficked, they may have a legal right to retain it at the expense of waiving other rights entitled to them.

On the other hand, the interest theory provides a different perspective.

Sir John William Salmond, a New Zealand judge and legal scholar, supports this theory.

He viewed rights as an interest that is protected and recognised by the state.

This is because the central premise of this theory is the right holder, as the entitled person, imposes obligations on others.

Furthermore, American legal scholar John Chipman Gray expands this theory when he viewed that, “Legal right is that power by which a man makes other persons do or refrain from doing a certain act by imposing a legal duty upon them through the agency of law (state).”

Concerning this, rights under the interest theory form collective rights where the interests of the population at large are considered to be a legal right through legislation that provided it so.

Moreover, even if the person is willing to waive the rights, such rights cannot be enforceable.

Therefore, a person’s right to be trafficked, even with consent, can be argued as not a legal right.

Such interest of a person is protected and recognised by states that are evident through statutes, legislation and conventions that they have agreed upon.

For example, Malaysia may not recognise a right to be trafficked upon the adoption of the Trafficking Protocol 2000 into the Anti-Trafficking In Persons and Anti-Smuggling Of Migrants Act 2007.

In conclusion, the right to be trafficked, according to current legislation, may not exist as such a right is against the interest of people that is not protected nor recognised by states.

This is based upon the duty to provide and protect the liberties of people to equal work treatment and environment. First published in The Sun Daily