Observación (CEACR) - Adopción: 1995, Publicación: 82ª reunión CIT (1995)

Further to the discussion that took place in the Conference Committee in 1994, the Committee notes the information provided by the Government in its report.

Previous comments of the Committee have focused on the problems of forced child labour exploitation, labour inspection, enforcement of criminal and labour legislation by the police, and the adequacy of sanctions taken against employers for infringement of child protection legislation.

The Committee noted that many children continue to work under coercion or in conditions of exploitation which have no resemblance to a free employment relationship. The situation is often linked to forced or false recruitment, deception and trafficking. Children are exploited because they are young and helpless, they are deprived of the right to lead a normal childhood, deprived of education, deprived of a future.

The Committee has emphasized that forced labour exploitation of children, be it forced child labour, child prostitution, child pornography, be it in factories, sweatshops, brothels, private houses or elsewhere, is one of the worst forms of forced labour, which must be fought energetically and punished severely.

In its latest comments the Committee took note of the report by a direct contacts mission which, at the request of the Government of Thailand, visited the country in September 1993. The Committee noted that Thailand had witnessed a tremendous national growth rate over recent years, emerging as a newly industrialized country, but that large pockets of poverty and profound disparities remained or had widened between rich and poor. The Committee stressed that while poverty was one of the contributing factors to child labour, it cannot be taken as an excuse for perpetuating child labour, or even less so for forced labour exploitation of children.

The Committee stressed the importance of concrete and effective action to deal with the problem of forced child labour exploitation, according to clearly fomulated goals and well-defined strategies. It pointed to the necessity of adopting means, such as a comprehensive legal framework, of improving law enforcement (requiring essentially the political will to provide the necessary means for effective action), of stimulating community awareness, and of adopting a comprehensive rehabilitation programme. The Committee stressed in particular the necessity to translate into reality the Government's stated policy to extend compulsory education from grade 6 to 9, and in the immediate future to grade 7, which would mean that children would leave the education system at the age of 13, corresponding to the present minimum age for admission to employment.

In its latest report, as well as in its statement to the Conference Committee, the Government has referred in particular to a number of initiatives taken or envisaged in relation to law enforcement, education and awareness-raising. It also stated that the existence of children working under conditions of exploitation in Thailand could not be denied.

Enforcement

(a) Inspection

The Committee has previously noted that although laws exist in Thailand for the protection of children, these laws are of no value unless they are properly enforced through the labour inspectorate and the police. The Committee notes from the report provided by the Government for the period ending 30 June 1994, that labour inspection was carried out in 35,738 establishments with 2,486,929 employees throughout the kingdom. Of the total number of employees, 29,552 were employed children of whom 438 were under 13 years old, 3,406 were children aged 13-15 years and the remaining 25,708 were children aged 15-18 years. It was found that there were 436 establishments violating the labour protection law on working hours and holiday work, with 192 establishments employing children between 13-15 years old and 244 establishments employing children 15-18 years old.

No information is provided as to the kinds of establishments investigated by the labour inspection, whether small enterprises, factories, restaurants, hotels, brothels, etc., and there is no indication of the number and kind of cases handled by the police, particularly the Crime Suppression Division.

The Committee hopes that the Government will provide statistical information not only as to the number of inspections conducted by the labour inspectorate, but also by category of establishment inspected, action taken against offenders, and the role of the local police and the Crime Suppression Division. With over 35,000 establishments inspected and only 438 violations of children under 13 years old working, the question arises whether inspection was carried out where it was most needed.

The Committee has previously suggested that women police officers could be assigned to active duty investigation of cases involving women and children. The Committee hopes that the Government will also communicate its position on this point.

(b) Prosecution

The Committee notes with concern that there is no mention in the Government's report of prosecutions, convictions or sanctions taken in the 438 cases cited of children under 13 working.

The Committee refers to information provided to the 1993 direct contacts mission by the Commander of the Crime Suppression Division that only five cases of forced child labour had been prosecuted and that due to the length of time and expense of litigation, cases were often settled by negotiation.

The Government mentioned in a Note "Solving Thailand's Child Labour Problems" (1993) that 58 employers were prosecuted for unfair practices and exploitation of child labour; two were punished by imprisonment and fines totalling Bahts 134,300.

These very low figures from 1993 confirm the impression of the direct contacts mission that serious problems of coordination exist in the overall labour inspection mechanism, both internally and in liaison with the police authorities.

The Committee hopes that the Government will provide the most recent figures available concerning prosecutions according to category of violation, convictions and sentences.

(c) Penalties imposed

The Committee notes the information in the Government's report concerning the Penal Code Amendment Act (No. 13) B.E. 2537 (1994) enacted 11 June 1994, the draft Labour Protection Act, and the amendments to the Prostitution Suppression Act of 1960.

(i) It is noted that the Penal Code Amendment Act imposes significantly increased penalties for those found guilty of "detaining, confining or depriving of the liberty of children not over 15 years of age, or if such offence results in their bodily or mental harm or death". The Committee notes with concern, however, that this protection is limited to children "not over 15 years old". It hopes that the Government will supply information on action taken or envisaged to ensure adequate punishment for the same offences when committed against persons over 15 years of age.

(ii) The Committee notes from the Government's report that the Prostitute Suppression Act of 1960 is being amended and is now in the stage of Cabinet consideration. The Government indicates that the amended text will increase "the degree of punishment for pimps, owners, caretakers or managers of brothels, controllers of prostitutes in brothels or persons holding back, detaining or committing offences, to prevent another person's physical freedom and force them into prostitution"; and that it will provide for the punishment of customers of child prostitutes. The Committee hopes that the Government will supply a copy of the revised text.

(iii) The Committee has noted the draft amendment to the Labour Protection Act which, the Government indicates, would reduce working hours for children aged 13 to 15 years in industrial work from 48 hours per week, and in commercial work from 54 hours per week, to 36 hours per week or six hours per day.

The Committee notes certain difficulties concerning the enforcement of this legislation in particular the adequacy of penalties for serious offences.

The Committee understands that section 41 of the Labour Protection Act prohibits the employment of children under 13 years of age in any activity and section 46(4) prohibits the employment of children under 18 years of age in brothels. Yet, the penalties for violation of these laws, under sections 133 and 128, paragraph 2, respectively, are limited to a fine and/or a maximum one-year prison sentence for the employer in the most serious cases (physical or psychological harm to or death of the child).

The Committee considers that the choice between a fine and a prison sentence of not more than a year would not appear adequate for the purposes of ensuring observance of Article 25 of the Convention.

The Committee moreover notes that, under section 139 of the Act ("equivalence"), on the decision of high-ranking municipal or provincial officials, cases sub judice can be removed from the courts and dealt with summarily through the payment of fines.

This is not compatible with the Government's Article 25 obligations under the Convention which requires the illegal exaction of forced or compulsory labour to be punished as a penal offence with adequate penalties, imposed by law, and strictly enforced.

The Committee hopes that the necessary action will be taken to introduce adequate sanctions for the illegal exaction of forced labour in general, and in particular, sections 41 and 46(4) of the Act, either through the amendment of sections 128 and 133 or otherwise, and to ensure that cases involving forced labour cannot be removed from the courts under section 139 of the Act ("equivalency").

Finally, the Committee notes that according to the Labour Protection Act, section 3(2), the Act would prevail in the case of a conflict of laws. In view of the above-mentioned inadequacies of punishment under the Labour Protection Act, the Committee hopes that the Government will supply information on measures taken or envisaged to ensure that prosecution under the Labour Protection Act will not prevent concurrent punishment of offenders under the Penal Code and the Prostitution Suppression Act.

Community awareness-raising

The Committee notes the information on efforts undertaken, especially in the north-eastern border region, to warn children in particular and the public in general of the dangers of deceptive recruiting practices, including kidnapping, and indicating the appropriate agencies to contact for help. Moreover, it is noted in the Government's report that volunteers from the community élite (teachers, village headmen, priests) cooperate with the Centre for Women and Child Labour Operations to crack down on the exploitation of women and children. The Committee hopes that the Government will continue to provide information in this regard.

Preventive measures: Education

For a number of years the Government has spoken of attacking the problem of child labour in all its forms by increasing compulsory education to grade 9/age 15. Presently, the minimum age for child employment is 13, but compulsory schooling finishes at grade 6 when children are normally age 12. The Committee recalls the statement by the Prime Minister to the Eleventh Asian Regional Conference (November 1991) in which he expressed his firm conviction that the place for a child was in school and not in a factory; that it was not sufficient to wait for economic restructuring to redress the exploitation of child labour, and that he was determined to do away with child labour and safeguard the future of the underprivileged children in the country.

The Committee hopes that the Government will provide details as to the concrete measures taken to implement this policy, which is to be the first step in eradicating the scourge of child labour and other forms of forced labour exploitation of children.

Child sexual exploitation

In its previous comments the Committee referred to certain statistical data concerning the number of children exploited through prostitution (estimates from 86,000 to 800,000). The Committee notes the Government's indication to the Conference Committee that the latest estimates amount to some 20,000 to 30,000 children in prostitution. The Committee recalls that the Ministry of Health, Division of Venereal Diseases Control, reported in 1990 that child prostitutes numbered 86,000 and that data from the Police Department showed that around 160,000 prostitutes would be under 16. Given the number of children trafficked from neighbouring countries, it is unlikely that these figures would have decreased since 1990. The Committee considers that swift and severe action is required to rescue these children trapped in prostitution.

The Committee further notes the discussion in the Conference Committee that Thailand cannot eradicate the problem of child prostitution alone, particularly when there is an international sex tourism industry. An important measure would be to prosecute travel agencies that organize tours to take advantage of child prostitution. Moreover, as noted previously, with the increase of AIDS worldwide, the demand for younger child prostitutes who are less likely to be infected is increasing. The conditions for delivering visas, particularly to groups, must be scrutinized. It was also noted in the discussions that it is the responsibility of the international community to prosecute its citizens, to the fullest extent possible under national legislation, when their acts abroad constitute crimes in their home country.

While noting the measures that have been taken, in particular the creation of a Ministry of Labour and Social Welfare in September 1993, and the desire expressed by the Government during the direct contacts mission in 1993 to solve these serious human problems, the Committee considers that now is the time to take concrete steps toward implementing these declarations, so that children are in school and not exploited. The Committee notes with concern the low level of enforcement of existing labour and criminal legislation designed to protect the most vulnerable. The Committee hopes that the Government will review both existing and draft legislation in light of the Convention, with special attention to ensuring, in conformity with Article 25 of the Convention, that the exploitation of forced labour is punished as a penal offence, that the penalties imposed are really adequate and that they are strictly enforced.

The Government is requested to report in detail in 1996 on the points raised in these comments, with particular regard to law enforcement, inspection, prosecution and conviction of offenders, sentencing, the adequacy of penal sanctions, and increasing the age for compulsory education.