Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Repetition

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 previously requested the Government to take measures to ensure that measures were 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.

The Committee notes the Government’s statement that the provisions in the Child Act prohibit the use, procuring or offering of a child for pornographic performances. In this regard, the Committee notes the Government’s statement that section 31(1)(b) of the Child Act of 2001 states that any person with the care of a child who sexually abuses the child or causes or permits him to be so abused, commits an offence and shall on conviction be liable to a fine not exceeding 20,000 Malaysian ringgit (MYR) or to imprisonment for a term not exceeding ten years, or to both. In this connection, the Committee notes that section 17(2)(c)(i) of the Child Act specifies that a child has been sexually abused if the child has taken part in any activity which is sexual in nature for the purposes of any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance. The Committee requests the Government to indicate if the prohibitions contained in sections 31(1)(b) and 17(2)(c)(i) of the Child Act also apply to persons not having the care of a child.

Clause (c). Use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee 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”. The Committee also noted the Government’s indication that the “other illegal activities detrimental to the health or welfare of the child” included the use, procuring and offering of a child for illicit activities, including the production and trafficking of drugs. The Committee requested information on the application in practice of section 32 of the Child Act.

The Committee notes the Government’s statement that, to date, nobody has been charged under section 32 of the Child Act. The Government also refers to the Dangerous Drugs Act, 1952 (Act No. 234), section 39B(1) of which provides that any person, who, on his own behalf or on behalf of another person, traffics, offers to traffic or prepares to traffic a dangerous drugs shall be guilty of an offence and shall be punished upon conviction with death. The Government indicates that both of the offences under the Child Act and the Dangerous Drugs Act can be tried together. The Government indicates that while children have been convicted under section 39B of the Dangerous Drugs Act, no death sentence has been applied to these children. The Committee, therefore, observes that, although children have been convicted of drug trafficking (under the Dangerous Drugs Act), it does not appear that any adult has been charged with the use, procuring or offering of a child for this offence under section 32 of the Child Act. In this regard, the Committee recalls that children used by adults for the production and trafficking of drugs should be treated as victims, rather than offenders, and requests the Government to take measures to ensure that such children receive the services necessary for their rehabilitation and social reintegration. The Committee also requests the Government to strengthen its efforts to ensure that the prohibition on involving children in the trafficking of drugs is strictly enforced, and that any adult who uses, procures, or offers a child for this offence is punished with sufficiently effective and dissuasive penalties.

Article 4(1). Determination of types of hazardous work. The Committee previously expressed the hope that the determination of types of hazardous work to be prohibited to persons below 18 years of age would be reviewed and adopted, pursuant to Article 4(1) of the Convention.

The Committee notes that, pursuant to the CYP Amendment Act, the CYP Act has been amended to include section 2(6), which states that for the purpose of section 2, “hazardous work” means any work that has been classified as hazardous based on the risk assessment conducted by a competent authority on safety and health as determined by the minister. The Committee requests the Government to take the necessary measures, pursuant to section 2(6) of the CYP Act (as amended), to determine the types of work which constitute hazardous work prohibited to persons under the age of 18, following consultations with the organizations of employers and workers concerned.

Article 7(2). Effective and time-bound measures. 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 previously noted that Malaysia was considered primarily a destination country for victims of trafficking, and that while most of the victims of trafficking were women over 18 years of age, a number of girls between 14 and 17 years of age were also reported to be victims.

The Committee notes the information in the Government’s report that the Malaysian Council for Anti-Trafficking in Persons and Anti-Smuggling of Migrants has developed an action plan to combat the trafficking of children. The Government further indicates that, as of 22 June 2011, there had been 161 child victims of trafficking rescued under a protection order, and 106 children were placed at the Government Shelter Home. The Committee requests the Government to provide information on the measures taken within the framework of the action plan to combat trafficking of children to provide for the removal, rehabilitation and social integration of child victims of trafficking. It also requests the Government to continue to provide information on the number of child victims of trafficking rescued and placed in the Government Shelter Home, as well as information on the services provided to these children for their rehabilitation and social reintegration, and where appropriate, their repatriation and family reunification.

Article 8. International cooperation and assistance. Regional cooperation. The Committee previously noted the proposal for a Memorandum of Understanding (MoU) between Malaysia and Thailand to monitor trafficking and address the flow of young girls into Malaysia. The Committee also noted the statement in the Government’s report of 19 November 2008 to the Human Rights Council for the Universal Periodic Review that 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 notes the Government’s statement that it has not yet finalized the draft of the MoU with Thailand. However, the Government indicates that currently, enforcement agencies exchange information to strengthen security between the two countries. The Committee also notes the information in the Government’s report submitted under the Forced Labour Convention, 1930 (No. 29), that one of the main goals of the National Action Plan on Trafficking in Persons (2010–15) is the development of local and international partnerships to combat trafficking in persons. The Committee urges the Government to pursue its efforts, including through the National Action Plan on Trafficking in Persons (2010–15), to cooperate with the neighbouring countries, particularly Indonesia and Thailand, with a view to eliminating child trafficking for labour and commercial sexual exploitation as well as the involvement of child migrants in the worst forms of child labour.

Application of the Convention in practice. Following its previous comments, the Committee notes the information in the Government’s report submitted under Convention No. 29 that as of May 2011, 25 persons had been charged with trafficking in children (under section 14 of the Anti-Trafficking in Persons Act of 2007). The Committee also notes the Government’s statement that between 28 February 2008 to 19 June 2011, 217 cases of sexual exploitation were recorded by the Royal Malaysian Police. The Committee observes that the Government does not indicate how many of these cases involved commercial sexual exploitation, or how many of the victims were under the age of 18. The Committee, therefore, requests the Government to provide information on the number of cases of commercial sexual exploitation involving persons under the age of 18 detected by the Royal Malaysian Police. The Committee also requests the Government to continue to provide information on the number of cases of the trafficking of children detected and investigated in Malaysia, as well as statistics on the number of prosecutions, convictions and penalties applied to perpetrators. To the extent possible, all information provided should be disaggregated by sex and by age.