Demande directe (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee takes note of the Government’s first and second reports, and requests it to supply further information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the Government’s indication that a tripartite committee has been set up by the Ministry of Human Resources to review all labour legislation and that it most probably will review in 2004 the Children and Young Persons (Employment) Act, 1966. It also notes that, by virtue of section 3 of the Child Act, 2001, a "coordinating council for the protection of children" shall be established. It shall be responsible for advising the Minister on all aspects of child protection, to develop programmes to educate the public on the prevention of child abuse and neglect, design an efficient and effective management system throughout Malaysia incorporating information channels for reporting cases of children in need of protection. The Committee requests the Government to indicate whether the coordinating council for the protection of children has been established, and if so, to provide information on the measures taken by it to secure the prohibition and elimination of the worst forms of child labour.

Article 2. Definition of a child. The Committee notes the Government’s report indicating that under section 1A(1) of the Children and Young Persons (Employment) Act, 1966, a "child" is a person below the age of 14 years and a "young person" is a person aged 14 to 16 years. However, the Committee also observes that according to section 2(1) of the Child Act, 2001, a "child" means a person under the age of 18. The Committee thus observes that the law does not provide for a comprehensive and unique definition of a child. Recalling that, under this Article of the Convention, the term "child" shall apply to all persons under the age of 18, the Committee requests the Government to take the necessary measures to harmonize the provisions of its legislation and to ensure that the term "child" shall apply to all persons under 18 years of age for the purposes of the Convention.

Article 3. Worst forms of child labour. Clause (a). 1. All forms of slavery or practices similar to slavery. The Committee notes that the Government’s report does not provide any information on this issue. However, it notes that article 6 of the Constitution provides that no person shall be held in slavery and prohibits forced labour. It further notes that under section 370 of the Penal Code, it is prohibited to import, export, remove, buy, sell or dispose of any person as a slave; under section 367 it is forbidden to kidnap or abduct a person in order for that person to be subject to grievous hurt or slavery. It observes that section 374 of the Penal Code states that anyone who unlawfully compels a person to work against the will of that person shall be punished with imprisonment for a term which may extend to one year and/or a fine. Moreover, the Committee observes that the sale and trafficking of children is expressly prohibited by section 48 of the Child Act, 2001, noting that a child means any person under 18 years of age for the purpose of this Act. The Committee requests the Government to provide information on the practical application of the abovementioned provisions prohibiting slavery, forced labour, and the sale and trafficking of children.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee notes the absence of information in the Government’s report on this issue. However, it observes that the Child Act, 2001, sets detailed provisions under section 43(1)(a) prohibiting the procurement, sale, hiring or otherwise disposing of or buying of a child with the intent that he/she will be employed or used for the purpose of prostitution either within or outside the country. It also notes that under section 43(1)(f) and (g), any person who detains a child in a brothel against the child’s will or in any other places with intent that the child will be employed or used for the purposes of prostitution or for any unlawful or immoral purposes commits an offence and is liable to a fine not exceeding 50,000 ringgit and imprisonment for a term of not less than three years but not more than 15 years. The Committee requests the Government to provide information on the practical application of these provisions.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this issue. However, it observes that the Child Act, 2001, refers indirectly to the use, procuring or offering of a child for the production of pornography or for pornographic performances. Indeed, according to section 17(1) of the Child Act, 2001, a child is in need of special care and protection if there is a substantial risk that the child will be sexually abused by his parents or guardian or a member of his/her extended family. Section 17(2) of the Child Act, 2001, specifies that a child is sexually abused if he/she has taken part, whether as a participant or an observer, in any activity for the purpose of any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance. The Committee requests the Government to provide information on the application of the abovementioned provisions in practice. Noting that there appear to be no provisions that specifically prohibit and punish the exploitation of child pornography, the Committee also requests the Government to provide information on the measures taken or envisaged to ensure that the use, procuring or offering of a child by anyone for the production of pornography or for pornographic performances are prohibited and sanctioned.

Clause (c). The use, procuring or offering of a child for illicit activities. The Committee notes the absence of information in the Government’s report on the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee, however, notes that section 32 of the Child Act, 2001, provides penalties for anyone who causes or procures or allows any child (a person under 18, according to section 2(1)(e) of the Act) to be on any street, premises or place for the purposes of "carrying out illegal hawking, illegal lotteries or gambling or other illegal activities detrimental to the health or welfare of the child". The Committee recalls that by virtue of Article 3(c) of the Convention, the use, procuring, offering of a child for illicit activities, in particular for the production and trafficking of drugs, is considered to be one of the worst forms of child labour, and therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on the meaning and activities falling under "illegal activities detrimental to the health or welfare of the child" (section 32 of the Child Act, 2001).

Clause (d). Hazardous work. The Committee notes that section 2(1) of the Children and Young Persons (Employment) Act provides that no child or young person shall be, or be required or permitted to be engaged in any employment other than those specified in this section. The Act outlines the types and nature of work that a young person is allowed to be engaged in. The Committee notes that, by virtue of section 2(3) of the Act, a young person may be employed: (a) as a domestic servant; (b) in any office, shops (including hotels, bars, restaurants), factories, theatres, clubs or association; (c) in industrial undertakings suitable to his/her capacity; and (d) on any vessel under the personal charge of his/her parents or guardian. However, section 3 of the Children and Young Persons (Employment) Act further stipulates that no female under 16 years of age may be employed in hotels, bars, restaurants or clubs unless such establishments are under the management or control of the parents or guardian. The Committee notes that according to section 1A(1) of the Children and Young Persons (Employment) Act, a child means any person who has not completed his/her 14 years of age and a young person refers to any person who, not being a child, has not completed 16 years of age. The Committee observes that section 2(5) of the Children and Young Persons (Employment) Act states that a person aged 16 may perform underground work and that section 28 of the Factory and Machinery Act, 1967, stipulates that a young person (i.e. a person under 16 years of age according to section 3) shall not carry out work involving the management of, or attendance on, or proximity to, any machinery. The Committee recalls that by virtue of Article 3, paragraph (d), of the Convention, work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety and morals of children is considered to be one of the worst forms of child labour and consequently forbidden for children under 18 years of age. The Committee requests the Government to indicate the measures taken or envisaged to ensure that hazardous work is not performed by children under 18 years of age.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes the Government’s indication in its report that the Children and Young Persons (Employment) Act, 1966, stipulates that no child or young person shall be required or permitted to engage in any employment other than those specified in section 2(1). The Committee notes that the Children and Young Persons (Employment) Act, 1966, does not provide for a list of types of work, which by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of children but rather authorizes children to perform certain types of work. This Act enumerates the types of work that a young person may undertake. The Committee observes that a young person may perform a wide range of activities and work in different places, including clubs, bars or underground work. The Committee recalls that by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority, after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards, in particular Paragraph 3 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190). In this regard, the Committee draws the Government’s attention to Paragraph 3 of Recommendation No. 190 which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions, such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. Noting that a tripartite committee has been set up by the Ministry of Human Resources to review all labour legislation and that it most probably will review in 2004 the Children and Young Persons (Employment) Act, 1966, the Committee hopes that the Government will take due consideration of its comments so as to bring the legislation in line with the Convention.

Paragraph 2. Identification of hazardous work. The Committee notes the absence of information in the Government’s report on efforts made to identify where work exists that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. The Committee reminds the Government that according to Article 4, paragraph 2, of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of hazardous work exist. The Committee requests the Government to provide information on the measures taken or envisaged to identify where hazardous work exists, in consultation with the organizations of employers and workers concerned.

Paragraph 3. Periodic examination of the list of hazardous work. The Committee notes the Government’s statement in its report that no periodical examination has occurred so far on the types of work which are harmful to the health of the workers. It also notes that the Children and Young Persons (Employment) Act which refers to hazardous occupations dates back to 1966. The Committee therefore recalls that Article 4, paragraph 3, of the Convention provides that the list of types of work determined as hazardous shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. The Committee accordingly asks the Government to provide information on the measures taken or envisaged to examine and revise the list of hazardous work, where necessary, in the light of scientific and technical developments.

Article 5. Monitoring mechanisms. The Committee notes the Government’s indication in its report that labour officers from the Department of Labour are empowered to carry out labour inspections to ensure that no children and young persons are exploited. The Government also indicates that the Department of Labour is also empowered to prosecute any violation of the provisions of the Children and Young Persons (Employment) Act, 1966. The Committee also notes that a police officer may investigate, arrest or search violations of the Child Act, 2001, by virtue of sections 109 and 110. The police officer’s powers are wide: he/she may, without a warrant, arrest any person he/she reasonably believes has committed or attempted to commit an offence laid down in this Act; he/she may also, with a warrant, for instance, enter and search premises, inspect, make copies of any books or records, search and remove the child who is in need of protection. The Committee asks the Government to provide information on the inspections carried out by the Labour Inspectorate and the police officers regarding infringements of the national provisions giving effect to the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s statement in its report that the Ministry of Human Resources works hand in hand with other authorities to design a national plan of action for children. It also indicates that no other programme has been developed so far by the Department of Labour. The Committee asks the Government to indicate whether the national plan of action for children has been established and to provide information on the objectives and scope of it.

Article 7, paragraph 1. Sanctions. The Committee notes that the Child Act, 2001, provides for penalties in case of violations of its provisions. For instance, a person who sells, buys or otherwise obtains possession, procures or detains a child in a brothel or in any other places against the child’s will for the purpose of prostitution or for any unlawful or immoral purpose is liable to a fine not exceeding 50,000 ringgit and/or to imprisonment for a term not exceeding 15 years (section 43). The Act also provides that any person who sells or transfers a child for any valuable consideration shall on conviction be liable to a fine not exceeding 10,000 ringgit and/or to imprisonment for a term not exceeding five years (section 48). The procurement of a child for the purpose of begging or carrying out illegal activities detrimental to the health and welfare of the child shall, on conviction, be liable to a fine not exceeding 5,000 ringgit and/or to imprisonment for a term not exceeding two years (section 32(b)). The Committee also observes that section 125 of the Child Act, 2001, provides that if no penalty is expressly provided for an offence laid down in this Act, the offender shall be liable to a fine not exceeding 5,000 ringgit and/or to imprisonment for a term not exceeding two years. It further notes that the Penal Code provides for penalties in case of violations of the provisions prohibiting forced labour (section 374), buying or disposing of any person as a slave (section 370), kidnapping or abducting a person for the purpose of slavery (section 367), exploiting a person for the purpose of prostitution (section 372), soliciting a person for prostitution (section 372(b)), owning or managing a brothel (section 373). Although the penalties laid down in the Penal Code are not only applicable to violations of the worst forms of child labour, the Committee observes that they can prove to be useful to combat the worst forms of child labour. Noting the absence of reference in the Government’s report to these penalties, the Committee requests it to provide information on their practical application as well as the practical application of the penalties laid down in the Child Act, 2001.

Paragraph 2. Time-bound measures. The Committee takes note of the Government’s indication in its report that Malaysian legislation prohibits and eliminates the worst forms of child labour. It also indicates that promotional programmes are held by the Department of Labour on the importance of education in eliminating child labour, especially amongst employers, and that the Ministry of Education will take the appropriate action to ensure access to free basic education. It further indicates that the Welfare Department is designated to provide necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. However, the Committee notes that no concrete measures seem to have been adopted up to now. The Committee encourages the Government to adopt effective and time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; (c) ensure access to free basic education and, wherever possible and appropriate, vocational training for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take into account the special situation of girls. It requests the Government to provide information on any development in this regard.

Article 8. The Committee notes that Malaysia ratified the United Nations Convention on the Rights of the Child in 1995. It also notes that it is a member of Interpol, which helps cooperation between countries in the different regions, especially in the fight against trafficking of children. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Parts IV and V of the report form. The Committee notes that the Government indicates in its report that it is not aware of any incident regarding the worst forms of child labour as defined under Article 3 of the Convention. It also indicates that inspections and investigations are carried out to ensure compliance of the Children and Young Persons (Employment) Act, 1966, by employers. However, the Committee notes the Government’s statement, under Part V of the report form, that no information is available regarding copies or extracts from official documents, including inspection reports, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported and penal sanctions applied. The Committee asks the Government to provide information on the outcome of the inspections and investigations carried out to ensure compliance of the Children and Young Persons (Employment) Act, 1966.

The Committee notes that efforts are under way for the tripartite committee set up by the Government to review all labour legislation to start reviewing the Children and Young Persons (Employment) Act, 1966. The Committee would strongly encourage the Government to ensure that the tripartite committee will, during its review of the 1966 Act, take into consideration the Committee’s detailed comments on discrepancies between national legislation and the Convention. The Committee requests the Government to inform it of any progress made in amending national legislation in its next report and invites it to consider technical assistance from the ILO.