Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

Article 2 of the Convention. Definition of a child. The Committee had previously noted that the Children and Young Persons (Employment) Act of 1966, defines a "child" as a person under the age of 14 and a "young person" as a person aged 14 to 16 years, while the Child Act defines a "child" as a person under the age of 18. It had noted that the relevant legislation does not provide for a comprehensive definition of a child. The Committee notes the Government’s statement that the Child Act of 2001 serves a different objective than the Children and Young Persons (Employment) Act of 1966, in that the latter focuses on the employment aspects of children and young persons. The Committee takes due note of this information.

Article 3. 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. According to section 17(1) of the Child Act of 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 the child’s extended family. Section 17(2) of this Act specifies that a child is sexually abused if the child has taken part, whether as a participant or an observer, in any activity for the purposes of any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance. The Committee had noted that there appears to be no specific provisions that explicitly prohibit and punish the use, procuring or offering of a child for the production of pornography or for pornographic performances by persons other than the child’s parents, guardian or extended family. The Committee once again requests the Government to indicate the measures taken or envisaged 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 and appropriate sanctions provided for in national legislation.

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 requests the Government to provide information on the measures taken or envisaged 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.

Clause (d). Hazardous work. The Committee had previously noted that the relevant legislation does not contain any provisions prohibiting young persons under 18 years of age from being employed in types of work likely to jeopardize their health, safety or morals. It 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 once again requests the Government to indicate the measures taken or envisaged to ensure that children under 18 years of age do not carry out work which is likely to harm their health, safety or morals.

Article 4, paragraph 1. Determination of hazardous work. The Committee had previously noted that the Children and Young Persons (Employment) 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 that a tripartite committee had been set up by the Ministry of Human Resources to most probably review the Children and Young Persons (Employment) Act in 2004. The Committee notes the Government’s statement that Paragraph 3 of Recommendation No. 190 will be analysed and incorporated into the review by the tripartite committee after consultations with the employers’ and workers’ representatives. The Committee hopes that the list of the types of hazardous work will be adopted promptly and requests the Government to send 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. It notes the Government’s information that the issue comes under the purview of the Department of Safety and Health. 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. It will be responsible for: advising the minister on all aspects of child protection; developing programmes to educate the public on the prevention of child abuse and neglect; designing an efficient and effective management system throughout Malaysia which incorporates information channels for reporting cases of children in need of protection. The Committee asks once again the Government to indicate whether this coordinating council 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 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 had requested the Government to indicate whether this plan of action had been established. The Committee notes the Government’s information that the matter relates to policy and should be referred to the Labour Policy Division. The Committee recalls that Article 6 of the Convention requires ratifying member States to take measures to design and implement programmes of action to eliminate as a priority the worst forms of child labour and that Article 1 requires the Government to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee requests the Government to provide further information, including information from the Labour Policy Division, on any developments regarding the adoption of the national plan of action for children, and any other programmes of action to eliminate 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 had requested the Government to provide information on the practical application of these penalties. It notes the Government’s statement that the question relates to the Child Act of 2001 and the Penal Code, and therefore the views of the respective departments should be obtained. The Committee once again requests the Government to provide information on the application of these penalties in practice, including information from the relevant departments.

Article 7, paragraph 2. Effective and time-bound measures. The Committee notes the Government’s statement that the Labour Department is enforcing the Children and Young Persons (Employment) Act of 1966 through inspections and complaints. It also notes the Government’s information that educational programmes for employers through courses, advisory services, counselling and dialogues are held from time to time. However, the Committee notes the absence of information in the Government’s report on the existence of time-bound and effective measures: (a) preventing the engagement of children on the worst forms of child labour; (c) ensuring access to free basic education and, wherever possible and appropriate, vocational training for all children removed from the worst forms of child labour; (d) identifying and reaching out to children at special risk; and (e) taking into account the special situation of girls. It requests once again the Government to supply information on the measures taken or envisaged, as required under Article 7, paragraph 2(a), (c), (d) and (e), of the Convention, to prevent the potential occurrence of the worst forms of child labour.

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 notes 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 trafficking victims, so that the majority of child victims of trafficking in Malaysia are foreign girls. The findings of the report show that, even if women over 18 years were prevalently found to be trafficked, 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 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.

The Committee notes particularly that, in the context of this Forum, various measures and programmes were envisaged, providing for: (a) developing a national programme of action and a national task force on trafficking, aimed at preventing and controlling trafficking and repatriating victims; (b) ratifying the UN Protocol on trafficking; (c) strengthening law enforcement, with particular regard to prevention of trafficking; (d) creating a trafficking unit at the police headquarters aimed at identifying trafficked persons; (e) searching collaboration from NGOs; (f) decriminalizing victims of trafficking; (g) ensuring the repatriation and reintegration of trafficked victims; (h) strengthening the role of the local policy; (i) reviewing the relevant legislation especially with regard to the punishment for those who receive services and the guarantee of legal protection for victims; (l) adopting an anti-trafficking act; (m) promoting campaigns for raising awareness on trafficking; and (n) learning from the good practices of other countries. The Committee requests the Government to provide information on any developments regarding the abovementioned programmes, indicating their impact on the rehabilitation and social integration of children below 18 who are victims of trafficking.

Article 8. International cooperation and assistance. Regional cooperation. The Committee notes that, according to the Forum on Trafficking in Women and Children held by SUHAKAM in 2004, a Regional Trafficking in Persons Information Centre was projected. In addition, a Memorandum of Understanding (MOU) between Malaysia and Thailand was proposed as a beginning to reduce the flow of young trafficked girls into Malaysia and allow for the exchange of information in order to monitor the traffickers’ actions. The Committee asks the Government to provide further information on this MOU and its impact towards eliminating the worst forms of child labour.

Parts IV and V of the report form. The Committee notes the Government’s statement that the specific statistics requested are not available. The Committee once again requests the Government to provide information on the application of the Convention in practice and on any practical difficulties encountered in the application of the Convention. The Committee also asks the Government to supply, as soon as this information becomes available, copies or extracts from official documents including inspection reports, studies and inquiries and, where such statistics exist, information on the nature extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penalties applied.

The Committee had previously noted that the Government intended to review its labour legislation, including the Children and Young Persons (Employment) Act of 1966. It had accordingly encouraged the Government to take into consideration, during this review, the Committee’s comments on discrepancies between national legislations and the Convention. The Committee had also asked the Government to inform it of any progress made in amending national legislation and invited it to consider technical assistance from the ILO. The Committee notes the Government’s statement that technical assistance from the ILO would be appreciated.