Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

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. In its previous comments, the Committee had 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 notes the Government’s information that the provisions of the Child Act need to be read together with other acts and regulations such as the Penal Code (Act 574), in which section 377E prohibits any person from inciting a child under the age of 14 years to any act of gross indecency with him or another person. The Committee observes that section 377E only extends this prohibition to the case of children who are under 14 years of age. The Committee notes the Government’s information that the Ministry of Women, Family and Community Development (MWFCD) is currently in the process of amending the Child Act, in the course of which the Government indicates that the issue of the use, procuring or offering of a child for the production of pornography or for pornographic performances will be given due consideration. The Committee requests the Government to take immediate and effective measures to ensure that, in the framework of the amendments to the Child Act, legislation is adopted to prohibit the use, procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances, in accordance with Article 3(b) of the Convention, as a matter of urgency. It requests the Government to provide information on the progress made in this regard in its next report.

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. The Committee notes the Government’s information that the “other illegal activities detrimental to the health or welfare of the child” of section 32 of the Child Act include the use, procuring and offering of a child for illicit activities, including the production and trafficking of drugs. As the Committee needs further information to assess whether section 32 of the Child Act can be applied effectively to prohibit the use, procuring or offering of a child for the production and trafficking of drugs, it requests the Government to provide information on the effect given to this provision in practice, including statistics on the number of persons prosecuted and found guilty under section 32 of the Child Act of using, procuring or offering a child under 18 years for illicit activities, in particular for the production and trafficking of drugs.

Clause (d) and Article 4, paragraph 1. Hazardous work and determination of hazardous work. In its previous comments, the Committee had 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 jeopardize their health, safety or morals. It had noted the Government’s referral to two prohibitions provided for in the CYP Act for children and young people: (i) managing or being in close proximity to machinery; and (ii) working underground. The Committee had observed 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. It had noted, however, that section 1A(1) of the CYP Act defines a “child” as being any person who has not completed their fourteenth year of age, and a “young person” as being any person who has not completed their sixteenth year of age. The Committee had reminded 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. It had also recalled that Article 4(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 notes that, according to a Government representative of Malaysia at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference of June 2009, the Government would set up a tripartite technical committee composed of employers’ organizations, workers’ organizations, government agencies and other relevant agencies. Referring to conclusions made by the Conference Committee on the Application of Standards, the Committee notes that the Government indicated that it would make the necessary recommendations to the tripartite technical committee so as to ensure that no one under the age of 18 years is authorized to perform hazardous work and that those hazardous types of work are determined in national legislation. The Committee also notes the Government’s information in its report that a proposal to include new provisions in the CYP Act to specify and determine the types of hazardous work and to prohibit the employment or work of persons under 18 years of age in these types of work is currently being reviewed by the Department of Labour. The Committee strongly urges the Government to take effective and immediate measures to ensure that the tripartite technical committee seriously considers the prohibition of the employment or work of persons under 18 years of age, in accordance with Article 3(d) of the Convention. Moreover, it firmly hopes that the determination of types of hazardous work to be prohibited to persons below 18 years of age will be reviewed and adopted by the Department of Labour after consultation with the organizations of employers and workers concerned, in accordance with Article 4(1) of the Convention. It urges the Government to take the necessary measures to ensure that the relevant legislation is adopted as a matter of urgency and requests it to provide information on the progress made in this regard in its next report.

Article 5 and Article 7, paragraph 1. Monitoring mechanisms and effective enforcement of the Convention. Labour inspectorate. The Committee had previously noted 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 notes that the Government representative at the Conference Committee on the Application of Standards indicated that the Malaysia peninsula alone has 300 labour inspectors and every labour inspector carries out between 25 and 30 inspections per month. In 2008, the Department of Labour, under the Ministry of Human Resources, received a total of 30,084 complaints on various labour issues. The Government representative explained that all complaints and cases were scrutinized and that no cases relating to child labour occurred. However, the Committee notes that the Worker members at the Conference Committee on the Application of Standards indicated that, while many rights were respected in Malaysia, many issues remained, particularly with regard to children working in the palm oil plantations, in the agricultural sector, but also those working in towns and cities. The Worker members further noted that, according to the National Commission for the Protection of Children in Indonesia, cases of forced labour of migrant workers and their children on plantations in Sabah involve an estimated 72,000 children. In light of the indication of the Government representative at the Conference Committee on the Application of Standards that Malaysia has one of the most effective labour inspectorates in the region, the Committee is of the view that Malaysia is in a position to ensure the effective enforcement of legislation giving effect to the Convention. The Committee strongly urges the Government to take the necessary measures to ensure that the provisions giving effect to the Convention are effectively enforced. It requests the Government to provide information on the progress made in this regard and to provide information on the number of infringements reported, investigations, prosecutions, convictions and penal sanctions applied with regard to children engaged in the worst forms of child labour, particularly children working in the palm oil plantations, in the agricultural sector, and in the urban economy.

Article 6. Programmes of action. Referring to its previous comments, the Committee notes the Government’s information that the National Policy on Children and its Plan of Action (NPAC) has been approved by the Government on 29 July 2009. The Government indicates that the NPAC will focus on children’s survival, protection, development and social participation. A Technical Committee, chaired by the MWFCD, will be established in order to coordinate and monitor the implementation of the NPAC. The Government further indicates that, although the NPAC is still in its infancy, its policy and plans are set to have considerable impact on the elimination of the worst forms of child labour by promoting and facilitating children’s rights. The Committee requests the Government to supply information on the implementation of the NPAC and on the results achieved with regard to the elimination of the worst forms of child labour in Malaysia.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Prevention of the engagement of children in the worst forms of child labour. Access to free basic education. The Committee had previously noted that, in its concluding observations of 25 June 2007, 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 had also expressed concern at the regional disparities in the dropout rates and that many children, in particular boys, drop out from secondary education (CRC/C/MYS/CO/1, paragraph 73).

The Committee notes the Government’s information that it is committed to ensure adherence to compulsory primary education and that basic education is free at both the primary and secondary levels. The Government indicates that several factors explain the majority of dropout cases in Government and Government-assisted schools, which are mainly related to the students’ backgrounds and include poverty, attitudes toward education and students’ health. Lack of infrastructural amenities, such as poor methods of transportation, also make it difficult for students to attend school, thus contributing to the dropout rates. The Committee notes that, according to the National Report submitted in accordance with paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 of 19 November 2008, Malaysia has formulated an Education Development Master Plan (EDMP) of 2006–10, which outlines Malaysia’s initiatives in ensuring that all students receive fair and equal educational opportunities regardless of location, ability or ethnic background (A/HRC/WG.6/4/MYS/1/Rev.1, paragraph 34). Malaysia thus provides a comprehensive set of education support measures which include a textbook loan scheme, supplementary food plan, trust funds, scholarships, food assistance, transport assistance, monthly allowances for disabled students and tuition aid schemes. The Committee notes that, according to the UNESCO Education for All Global Monitoring Report of 2008 (UNESCO Report), Malaysia has made extraordinary progress in reducing the number of children not enrolled in education and universal primary education has been achieved. Indeed, the Committee notes that, according to the UNESCO Report, the net enrolment rate in primary education is 100 per cent. However, the Committee notes that, while the gross enrolment rate is 90 per cent at the lower secondary level, it is only 53 per cent at the upper secondary level. The Committee welcomes the efforts made by the Government and encourages it to pursue its efforts to improve the operation of the education system in the country, in particular by increasing school attendance at the secondary level and reducing school dropout rates. It requests the Government to provide information on the progress made in this regard and the results achieved.

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. The Committee had previously noted that the Trafficking in Women and Children Report of the Human Rights Commission of Malaysia of 2004 shows that Malaysia is considered primarily a destination country for victims of trafficking. 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 notes that, according to the Universal Periodic Review of Malaysia of 3 March 2009, the Anti-Trafficking in Persons Act came into force in 2008 (A/HCR/11/30, paragraph 58). It also notes that, according to the UNODC Global Report on Trafficking in Persons of 2009 (UNODC Report), a National Plan of Action to combat trafficking in persons was drafted in 2008. The UNODC Report further indicates that about 160 persons were convicted of “trafficking and abduction of children” between 2003 and 2006. Most of the persons convicted were involved in child trafficking for sexual exploitation, while two were exploiting children for forced labour. The Committee further notes that, according to the National Report submitted in accordance with paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 of 19 November 2008, Malaysia has set up three shelter homes to provide assistance and counselling to victims of trafficking in persons and established an Inter-Agency Committee on Protection and Rehabilitation of Trafficked Victims (A/HRC/WG.6/4/MYS/1/Rev.1, paragraph 92). Finally, the Committee notes the Government’s information that the shelter home for child victims of trafficking for exploitative purposes has been operational since March 2008 and has, thus far, received 13 rescued children. The Committee requests the Government to continue providing information on the number of children who have been withdrawn from trafficking and rehabilitated through the shelters homes established for that purpose and through the action of the Inter-Agency Committee on Protection and Rehabilitation of Trafficked Victims. The Committee further requests the Government to provide information on the measures taken within the framework of the National Plan of Action to combat trafficking in persons to ensure that child victims of trafficking for labour or commercial sexual exploitation are withdrawn and then rehabilitated.

Clause (d). Identifying and reaching out to children at special risk. Migrant children, street children and child domestic workers. The Committee notes that the Worker member of Indonesia indicated, at the Conference Committee for the Application of Standards, that the Indonesian National Commission for Child Protection (INCCP) reported, after a 2008 fact-finding mission to the plantations in Sabah, Malaysia, that tens of thousands of migrant workers’ children also worked in the plantations without regulated employment hours, which meant they worked all day long. Other sectors where migrant workers’ children were often found were family food businesses, night markets, small-scale industries, fishing, agriculture and catering. The INCCP Secretary-General stated that the children of migrant workers born under these conditions were not provided with birth certificates or any other type of identity document, effectively denying their right to education. Furthermore, in Sabah, an unknown number of children begged in the streets; estimates ranged from a few hundred to as many as 15,000 children. The Worker members emphasized the need to devote particular attention to migrant children and to children employed as domestic workers. The Committee reminds the Government that migrant children, street children and child domestic workers are particularly exposed to the worst forms of child labour and requests the Government to take effective and time-bound measures to ensure that these children are protected from the worst forms of child labour by withdrawing them from these vulnerable situations and rehabilitating them. It requests the Government to provide information on the results achieved.

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. The Committee notes the Government’s information that the MOU between Malaysia and Thailand has been suspended. The Committee notes that the Worker member of Indonesia at the Conference Committee on the Application of Standards indicated that, in 2006, the Confederation of Indonesian Trade Unions established a partnership with the Malaysian Trade Union Congress (MTUC). Both parties signed an MOU to inform migrants from Indonesia going to Malaysia on the risks of migration, including the risk of their children becoming labourers. However, the Worker members noted that unions alone could not solve this problem and this problem could only be solved in a regional context. The Committee further notes that according to the National Report submitted in accordance with paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 of 19 November 2008, due to Malaysia’s porous borders, the influx of migrants, trafficked victims and refugees is increasing despite pledges by source states that they have taken progressive measures (A/HRC/WG.6/4/MYS/1/Rev.1, paragraph 94). The Committee therefore urges the Government to take measures to cooperate with the neighbouring countries, particularly Indonesia and Thailand, and therefore strengthen security measures with a view to bringing an end to child trafficking for labour or commercial sexual exploitation and to the engagement of child migrants in the worst forms of child labour.

Parts IV and V of the report form. Application of the Convention in practice. Following its previous comments, the Committee notes the Government’s information that the MWFCD is conducting a pilot study to develop a database on street children in Sabah. The Government also indicates that it will initiate the creation of a database on the phenomena of child trafficking, the commercial sexual exploitation of children and street children in Malaysia. Furthermore, the Committee notes that, according to the National Report submitted in accordance with paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 of 19 November 2008, Malaysia is currently setting up a One Stop Information Centre on trafficking in persons which will provide comprehensive information on the statistics of traffickers and victims. The Committee requests the Government to provide the statistics compiled in the framework of the database on child trafficking, the commercial sexual exploitation of children and street children in Malaysia, as well as through the One Stop Information Centre on trafficking in persons. The Committee also requests the Government to take measures to ensure that data on the number of children engaged in domestic work is available.

The Committee also strongly urges the Government to redouble its efforts and take the necessary measures to ensure that, during its review of the CYP Act by the tripartite technical committee set up for this purpose, due consideration is given to the Committee’s detailed comments on the discrepancies between national legislation and the Convention, and amendments are made in this regard. The Committee once again requests the Government to provide information on any progress made in the review of the CYP Act in its next report.

Finally, in response to the Government’s request for technical assistance from the Office, the Committee requests the Office to take the necessary measures to respond positively.