Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Article 3 of the Convention. Worst forms of child labour. Clause (b). Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee had previously noted that section 17(1) and (2) of the Child Act of 2001 only refers indirectly to the use, procuring or offering of a child for the production of pornography or for pornographic performances and that there appear to be no specific provisions that explicitly prohibit and punish such acts committed by persons other than the child’s parents, guardian or extended family. The Committee further notes that the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, expressed regret at the absence of specific legislation against Internet-related sexual offences, including child pornography (CRC/C/MYS/CO/1, paragraph 99). Noting the lack of information on this point, the Committee requests the Government to take immediate measures to ensure that the use, procuring or offering by anyone of a child under 18 years of age for the production of pornography or for pornographic performances is prohibited, as a matter of urgency.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee had previously noted that section 32 of the Child Act of 2001 punishes anyone who causes or procures or allows any person under 18 years of age 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”. However, the Committee had noted that there seem to be no specific provisions which explicitly prohibit the use, procuring or offering of a child for the production and trafficking of drugs. It had accordingly asked the Government to provide information on the meaning of “illegal activities detrimental to the health or welfare of the child” pursuant to section 32. Noting the absence of information on this point, the Committee once again requests the Government to take immediate measures to ensure that the use, procuring or offering of a child under 18 years of age for illicit activities, in particular for the production and trafficking of drugs, is prohibited, as a matter of urgency.

Clause (d) and Article 4, paragraph 1. Hazardous work and determination of hazardous work. The Committee had previously noted that the relevant legislation does not contain any provisions prohibiting young people under 18 years of age from being employed in types of work likely to harm their health, safety or morals. The Committee had also noted that the Children and Young Persons (Employment) Act of 1966 (CYP Act) does not provide for a list of types of hazardous work to be prohibited for children under 18 years of age. It had reminded the Government that Article 4, paragraph 1, of the Convention states that the types of 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). The Committee had noted the Government’s statement that Paragraph 3 of Recommendation No. 190 will be analysed and incorporated into the review of the CYP Act carried out by the tripartite committee set up for this purpose, after consultations with employers’ and workers’ organizations.

The Committee notes that, in its report under the Minimum Age Convention, 1973 (No. 138), the Government refers to two prohibitions provided for in the CYP Act, for children and young persons: (i) managing or being in close proximity to machinery; and (ii) working underground. The Committee observes that section 2(5) of the CYP Act provides that no child or young person shall be, or required or permitted to be, engaged in any employment contrary to the provisions of the Factories and Machinery Act, 1967, or the Electricity Act, 1949, or in any employment requiring them to work underground. The Committee notes that section 1A(1) of the CYP Act defines a “child” as being any person who has not completed their 14th year of age, and a “young person” as being any person who has not completed their 16th year of age. Furthermore, the Committee observes that, in its concluding observations of 25 June 2007, the Committee on the Rights of the Child expressed alarm at the high number of migrant domestic workers, including child domestic workers, who work under conditions that are hazardous and interfere with the child’s education, and are harmful to the child’s health and physical, mental, spiritual, moral or social development (CRC/C/MYS/CO/1, paragraph 91). The Committee once again reminds the Government that, by virtue of Article 3(d) of the Convention, hazardous work constitutes one of the worst forms of child labour and consequently shall be prohibited for children under 18 years of age. The Committee requests the Government to take immediate measures to ensure that children under 18 years of age do not carry out work which is likely to harm their health, safety or morals, as a matter of urgency. It also requests the Government to take immediate measures to adopt a list of types of hazardous work in the very near future and to provide a copy of the list once it has been adopted, after consultations with the organizations of employers and workers concerned.

Article 4, paragraph 2. Identification of hazardous work. The Committee had previously requested the Government to provide information on the measures taken or envisaged to identify where the types of hazardous work exist, in consultation with the organizations of employers and workers concerned. Noting the lack of information on this point, the Committee once again requests the Government to provide information on whether hazardous types of work have been identified by the Department of Safety and Health pursuant to Article 4, paragraph 2, of the Convention.

Article 5. Monitoring mechanisms. The Committee had previously noted that, by virtue of section 3 of the Child Act of 2001, a “coordinating council for the protection of children” will be established. The Committee notes the Government’s information that the Coordinating Council for the Protection of Children (CCPC) was indeed established, which is the main body mandated to advise the Minister of Women, Family and Community Development on all aspects of child protection. The CCPC also provides advice on the management of child protection teams throughout the country. The Committee further notes the Government’s information that the National Advisory and Consultative Council for Children (NACCC), that was established in 2001, acts as a focal point for children’s well-being and development, in line with the Convention on the Rights of the Child and the National Action Plan for Children. The Committee requests the Government to provide information on the measures taken by the CCPC and the NACCC to secure the prohibition and elimination of the worst forms of child labour.

Article 6. Programmes of action. The Committee had previously noted that the Ministry of Human Resources was working with other authorities to design a national plan of action for children. It notes that, according to the concluding observations of 25 June 2007 of the Committee on the Rights of the Child, a National Plan of Action for Children by the Ministry of Women, Family and Community Development is currently under way and will be streamlined with the National Child Policy (CRC/C/MYS/CO/1, paragraph 17). The Committee requests the Government to provide information on the National Plan of Action for Children and on any relevant impact on the elimination of the worst forms of child labour.

Article 7, paragraph 1. Penalties. The Committee had previously noted that sections 32(b), 43 and 48 of the Child Act of 2001, and sections 367, 370 and 372–374 of the Penal Code, establish sufficiently effective and dissuasive penalties of imprisonment and fines for breach of the provisions prohibiting: the sale and trafficking of children for the purposes of sexual and labour exploitation; the procuring of a child for the purpose of begging or carrying out illicit activities; the kidnapping or abduction of a person for the purpose of slavery; and the exploitation and the incitement of a person for the purpose of prostitution. The Committee notes the concern expressed by the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, that the enforcement of ILO Convention No. 182 remains weak. The Committee reminds the Government that, by virtue of Article 7, paragraph 1, of the Convention, ratifying countries are required to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including through the provision and application of penal sanctions. It accordingly requests the Government to take the necessary measures to ensure that a person found to be in breach of the provisions relating to the worst forms of child labour mentioned above is prosecuted and that adequate penalties are imposed. It once again requests the Government to provide information on the application of these penalties in practice including the number and nature of infringements reported, investigations, prosecutions, convictions and penalties applied.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Prevention of the engagement of children in the worst forms of child labour. Education. The Committee notes that, according to the concluding observations of the Committee on the Rights of the Child of 25 June 2007, the enrolment rate of girls and boys in primary education is relatively equal. However, the Committee on the Rights of the Child expressed regret that, according to estimates, 200,000 children of primary-school age are not attending school. The Committee on the Rights of the Child also expressed concern at the regional disparities in the drop-out rates. For example, the proportion of children reaching grade 5 in Sabah has decreased significantly. Furthermore, the Committee on the Rights of the Child also expressed its regret that many children, in particular boys, drop out from secondary education (CRC/C/MYS/CO/1, paragraph 73). In view of the fact that education contributes to preventing the engagement of children in the worst forms of child labour, the Committee strongly encourages the Government to take measures to ensure free basic education and to keep children in school. The Committee also asks the Government to supply updated data on the enrolment and drop-out rates in school.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration. Child victims of trafficking. In its previous comments, the Committee had noted that the Trafficking in Women and Children Report of the Human Rights Commission of Malaysia (SUHAKAM) of 2004, shows that Malaysia is considered primarily a destination country for victims of trafficking, so that the majority of child victims of trafficking in Malaysia are foreign girls. The findings of the report showed that, even if the trafficking involved mostly women over 18 years of age, a number of girls between 14 and 17 years of age were also reported to be victims of trafficking. The Committee had noted that, according to this source, a “Forum on Trafficking in Women and Children – A Cross-Border and Regional Perspective” was organized and held by SUHAKAM in April 2004, in order to forge a national and regional collaborative response to trafficking. The central aim of the Forum was to facilitate discussion on steps taken or required at the national and regional levels against the backdrop of developments and various measures and programmes were envisaged.

The Committee notes the Government’s information that the Ministry of Women, Family and Community Development has undertaken steps to address issues relating to human trafficking since 2005, with the collaboration of other ministries, agencies and non-governmental organizations, including establishing shelter homes for women and child victims of trafficking and training enforcement officers. The Committee notes that, according to the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, a Coordinating Committee on Trafficking was established in July 2006 (CRC/C/MYS/CO/1, paragraph 95). Furthermore, the Government indicates in its report that the Anti-Trafficking in Persons Bill was passed by Parliament on 24 May 2007, and published in July 2007. Under the Anti-Trafficking in Persons Act, a Council for Anti-Trafficking in Persons shall be established to, among other things, coordinate the implementation of the Act, formulate and oversee the implementation of a national plan of action on the prevention and suppression of the trafficking of persons and provide care, support and protection to victims of trafficking. However, the Committee notes the grave concern expressed by the Committee on the Rights of the Child on the absence of a specific law and policy to combat inter-country trafficking (CRC/C/MYS/CO/1, paragraph 95). The Committee requests the Government to provide information on the concrete impact of the abovementioned measures on the rehabilitation and social integration of children under 18 who are victims of trafficking, and the results attained. The Committee also asks the Government to take effective and time-bound measures to ensure that children under 18 years of age who are victims of inter-country trafficking are rehabilitated and integrated, and to provide information on progress made in this regard.

Article 8. International cooperation and assistance. Regional cooperation. The Committee had previously noted that a Memorandum of Understanding (MOU) between Malaysia and Thailand was proposed as a beginning to reduce the flow of young girls into Malaysia and allow for an exchange of information in order to monitor traffickers’ actions. Noting the lack of information on this point, the Committee once again asks the Government to provide further information on this MOU and its impact towards eliminating the trafficking of children under 18 years of age for labour or sexual exploitation.

Parts IV and V of the report form. Application of the Convention in practice. The Committee notes that, in its concluding observations of 25 June 2007, the Committee on the Rights of the Child expressed regret that Malaysia could not present studies on the extent and nature of the problem of children living and/or working in the streets, particularly in Sabah (CRC/C/MYS/CO/1, paragraph 93). The Committee on the Rights of the Child also expressed regret at the insufficient data on child victims of trafficking for exploitative purposes and the sexual exploitation of children (CRC/C/MYS/CO/1, paragraph 25). The Committee notes the Government’s information that the Council for Anti-Trafficking of Persons that shall be established under the Anti-Trafficking in Persons Act will collect data, information and research on the prevention and suppression of trafficking in persons. The Committee urges the Government to take measures to ensure that sufficient data on the phenomena of child trafficking, the commercial sexual exploitation of children and street children is available. The Committee also once again requests the Government to supply, as soon as this information becomes available, copies or extracts from official documents including inspection reports, studies and inquiries.

The Committee also urges the Government to ensure that, during its review of national legislation including the CYP Act, due consideration is given to the Committee’s detailed comments on the discrepancies between national legislation and the Convention. The Committee requests the Government to provide information on any progress made in this regard in its next report and once again invites the Government to consider seeking technical assistance from the ILO.