Demande directe (CEACR) - adoptée 2011, publiée 101ème session CIT (2012)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Brunéi Darussalam (Ratification: 2008)

Autre commentaire sur C182

Demande directe

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The Committee notes the Government’s first report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practice similar to slavery. Sale and trafficking of children. The Committee notes that section 5 of the Trafficking and Smuggling of Persons Order of 2004 provides that any person who recruits, transports, harbours or receives a child, i.e. a person under 18 years, by any means for the purposes of exploitation shall be guilty of an offence. The Government indicates that this legislation is only applicable where children are brought into Brunei and where the country is being used as a transit point. Therefore, this Order does not cover internal trafficking. However, the Committee notes that section 35 of the Children and Young Persons Order of 2006 provides that any person who takes any part in any transaction the object or one of the objects of which is to transfer or confer, wholly, partly, temporarily or permanently, the possession, custody or control of a child or young person for any valuable consideration is guilty of an offence. Section 36 of this Order provides that any person who, by or under any false pretence or representation or fraudulent or deceitful means, made or used either within or outside Brunei, brings or assists in bringing any child or young person into or outside the country is guilty of an offence. According to section 2(1) of the Children and Young Persons Order, a “child” is a person who has not attained the age of 14 years and a “young person” is a person who has attained the age of 14 but has not attained the age of 18 years.

Slavery, debt bondage, forced or compulsory labour. The Committee notes that article 374 of the Penal Code of 2001 provides that whoever unlawfully compels any person to labour against the will of that person shall be punished with imprisonment for a term which may extend to three years and with a fine.

Clause (b). Use, procuring or offering of a child for prostitution, pornography or pornographic performances. Prostitution. The Committee notes that section 366A of the Penal Code provides that whoever induces a girl under the age of 18 years to go from any place or to do any act with the intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, commits an offence. Section 372 of the Penal Code provides that whoever sells, lets to hire, or otherwise disposes of any person under the age of 18 years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for such purpose, is liable to imprisonment and whipping. Moreover, section 373 of the Penal Code prohibits anyone from buying, hiring or otherwise obtaining possession of any person under the age of 18 years with intent that such person shall, at any age, be employed or used for the purpose of prostitution or illicit intercourse with any person or for an unlawful or illegal purpose. However, the Committee observes that these provisions are accompanied by explanations according to which the “person under the age of 18 years” is referred to as a “female under the age of 18 years”. The Government’s report also refers to the Women and Girls Protection Act of 1984, sections 3 and 5 of which provide for the prohibition of the procuring or offering of women or girls for prostitution.

The Committee observes that the use of children under 18 years for prostitution, i.e. by a client, does not seem to be prohibited. Furthermore, it observes that only the procuring and offering of girls under 18 years of age appear to be prohibited by the national legislation. The Committee reminds the Government that Article 3(b) of the Convention requires member States to ensure that the use, procuring or offering of both boys and girls under 18 years of age for prostitution is strictly prohibited. The Committee therefore requests the Government to take the necessary measures to ensure that the use, procuring or offering of both boys and girls under the age of 18 for the purpose of prostitution is prohibited. It requests the Government to provide information on the progress made in this regard.

Pornography. The Committee notes that section 292 of the Penal Code prohibits the sale, production, distribution, exhibition, importation, exportation, etc., of obscene articles. An article shall be determined to be “obscene” if its effect or the effect of any one of its items “tend to deprave and corrupt persons who, having regard to all relevant circumstances, are likely (or would have been likely but for the lawful seizure of the article) to read, see or hear the matter contained or embodied in it”. An “article” is any matter “to be read or looked at or both, any sound record, and any film, video cassette, photographic negative or other record of a picture”. The Committee further observes that section 4 of the Undesirable Publications Act provides that any person who imports, publishes, sells, offers for sale, distributes or reproduces any prohibited publication is guilty of an offence. However, the Committee notes that there does not appear to be a provision specifically prohibiting the use, procuring or offering of a child for the production of pornography or pornographic performances, as required by Article 3(b) of the Convention. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure that the use, procuring or offering of boys and girls under 18 years of age for the production of pornography or pornographic performances is prohibited. It requests the Government to provide information on the progress made in this regard.

Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that section 29 of the Children and Young Persons Order provides that any person who causes or procures any child or young person or, being a person having his care, allows him to be at any premises or place for the purposes of begging or receiving alms, or of inducing the giving of alms, or any illegal activity or any activity detrimental to his health or welfare, is guilty of an offence.

Clause (d) and Article 4(1). Hazardous work and determination of hazardous work. The Committee notes the Government’s information that the Employment Order of 2009 generally deals with the types of work that are likely to harm the health, safety and morals of children. In this regard, the Government refers to section 103 of the Employment Order, which provides that no person shall employ a child, defined as a person under 14 years of age, in an industrial undertaking or in an undertaking which is not industrial. An “industrial undertaking” includes such undertakings as mines or quarries; manufacturing, assembling, altering or other similar industries; construction, maintenance, repair, alteration, demolition of any building, railway, harbour, road, tunnel, or other structures; and the transport of passengers or goods by road, sea, air or inland waterway. Moreover, section 104(1) of the Employment Order provides that no young person – who is a person who has attained the age of 15 but not the age of 18 years – shall be employed in any industrial undertaking which the Minister of Labour has declared to be an industrial undertaking in which no young person shall be employed. According to section 104(2) of the Order, the Minister may, by notification published in the Gazette, declare any industrial undertaking to be an industrial undertaking in which no young person shall be employed. The Committee observes that there does not appear to be a list determining the types of hazardous work prohibited to young persons of 15 to 18 years of age.

The Committee reminds the Government that, under Article 3(d) of the Convention, children under 18 years shall not perform work, which by its nature or the circumstances in which it is carried out, is likely to harm their health, safety or morals, and that this applies to both industrial and non-industrial undertakings. The Committee also draws the Government's attention to Article 4(1) of the Convention, according to which the types of work referred to under Article 3(d) must be determined by national laws or regulations or by the competent authority, taking into consideration relevant international standards, in particular Paragraph 3 of Recommendation No. 190. The Committee requests the Government to take the necessary measures to develop and adopt a list determining the types of hazardous work prohibited for persons under 18 years, in consultation with the organization of employers and workers concerned. In determining the types of work to be considered as hazardous, the Committee encourages the Government to take into consideration the types of work enumerated in Paragraph 3 of Recommendation No. 190. In this regard, the Committee also requests the Government to indicate whether the Minister of Labour has declared any industrial undertaking to be an undertaking in which no young person shall be employed.

Article 5. Monitoring mechanisms. Trafficking. The Committee observes that, according to the information contained in the Global Report on Trafficking in Persons of 2009 of the UNODC, the Immigration Department and Royal Customs and Excise are in charge of investigating any alleged offences committed under the Trafficking and Smuggling of Persons Order. Yet, the UNODC Trafficking Report also indicates that there were no investigations, prosecutions or convictions recorded in Brunei for the reporting period. Moreover, the Committee notes the information contained in a 2011 report on trafficking in persons in Brunei, available on the website of the Office of the High Commissioner for Refugees (Trafficking Report of 2011), according to which Brunei has yet to develop or implement formal procedures to identify victims of trafficking and the Government has yet to prosecute a human trafficking case using its Trafficking and Smuggling of Persons Order. The Committee therefore requests the Government to redouble its efforts to ensure the effective monitoring of the sale and trafficking of children. In this regard, it requests the Government to provide information on measures taken to strengthen the capacity of immigration officials to combat the trafficking of children. It also requests the Government to provide information the application of the provisions of the Trafficking and Smuggling of Persons Order prohibiting the sale and trafficking of children, including, in particular, statistics on the number and nature of violations reported, investigations, prosecutions, convictions and penalties imposed.

Labour inspection. The Committee notes the Government’s information that the Department of Labour of the Ministry of Home Affairs is the agency responsible for monitoring of the Employment Order. The Department, through the Law Enforcement and Legal Prosecution sections, acts to ensure that employers and local businesses respect the existing labour legislation in Brunei. The Law Enforcement team of the Department of Labour, through the power and authority of the Commissioner of Labour, may enter any site or place of work where violations of labour laws may be suspected. The Law Enforcement team frequently conducts site inspections of businesses and takes part in raids, alongside immigration officials, to confirm the legality of entry and employment of the great number of migrant workers in Brunei. The Government indicates that through these measures, the Department of Labour proactively monitors the local labour market of the nation to ensure that all employers and employees conform to the relevant laws, including those regarding illegal activities such as trafficking, prostitution and child labour. In the event that employers do not conform with the law, legal proceedings and penal sanctions may follow. The Committee requests the Government to provide additional information on the operation of the Law Enforcement team of the Department of Labour, particularly with regard to the worst forms of child labour. It also requests the Government to supply information on the extent and nature of violations detected concerning children involved in the worst forms of child labour.

The National Children’s Council. The Committee notes the Government’s information that the National Children’s Council (NCC), established and officially launched in 2001, is responsible for monitoring the rules and regulations pertaining to children. The members of this council are made up of representatives of various ministries, including the Prime Minister’s Office and the ministries of Health, Education and Home Affairs, as well as of NGOs. The NCC also coordinates activities organized for children by various bodies and organizations and ensures that the principle of the best interest of the child is taken into consideration in the formulation of national policies. The Committee requests the Government to provide information on the role of the National Children’s Council with regard to the prevention and elimination of the worst forms of child labour, and on the results achieved.

Article 7(1). Penalties. The Committee notes that section 5 of the Trafficking and Smuggling of Persons Order provides that the offence of “child trafficking” shall be punished on conviction by a fine not exceeding US$1 million, imprisonment for a term of not less than four years but not exceeding 30 years. Sections 35 and 36 of the Children and Young Persons Order provide for a penalty of a fine of US$20,000, imprisonment for a term not exceeding five years or both, for the internal trafficking of a child or young person. Furthermore, section 372 of the Penal Code provides that the offences of selling or buying a minor for prostitution are punishable with imprisonment for a term which may extend to 30 years. Section 29 of the Children and Young Persons Order states that any person guilty of procuring or allowing a child any premises for the purpose of illegal activities is liable on conviction to a fine not exceeding US$10,000, imprisonment for a term not exceeding five years or both. Finally, section 110 of the Employment Order provides that any person who employs a child in contravention of its provisions on hazardous work is liable on conviction to a fine not exceeding US$2,000, imprisonment for a term not exceeding two years, or both. The Committee requests the Government to provide information on the application in practice of these provisions of the Trafficking and Smuggling of Persons Order, the Children and Young Persons Order, and the Employment Order.

Article 7(2). Effective and time-bound measures. Clause (a). Prevent the engagement of children in the worst forms of child labour. Access to free basic education. The Committee observes that, in its concluding observations of 27 October 2003, the Committee on the Rights of the Child (CRC) noted the very good education indicators and the broad scope of education in schools (CRC/C/15/Add.219, paragraph 49). In this regard, the Committee observes that, according to data from the UNESCO Institute for Statistics, in 2009, 93 per cent of girls and 92 per cent of boys were enrolled in primary education, and 91 per cent of girls and 88 per cent of boys were enrolled in secondary education. Moreover, the Committee takes note of the extensive measures taken by the Government to continue promoting education and providing universal access to education, as described in detail in its National Report of 9 September 2009 submitted to the Human Rights Council (A/HRC/WG.6/6/BRN/1, paragraphs 51–63).

Clause (b). Direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. The Welfare Housing Complex. The Committee notes the Government’s information that the Ministry of Culture, Youth and Sports maintains a welfare housing complex, which was built for the rehabilitation and care of children who have been through unfavourable circumstances. The mission of the complex is to provide temporary care and protection for all its residents until an effective settlement has been reached, and to assist its residents with recovery, guidance and training. A range of care services and activities are offered to the children and young persons housed in the complex, such as basic food and shelter, medical care, religious education and vocational training. However, the Government indicates cases of child abuse that are not widely reported and may, as such, fall under the radar of enforcement agencies. For that reason, the Community Development Department maintains a website and hotline through which members of the public may directly notify the Department of suspected, child-related neglect and abuse cases. The Government adds that these mechanisms have proved useful, especially in cases where children are found selling or begging in the streets. The Committee requests the Government to provide information on the number of children withdrawn from the worst forms of child labour, particularly from selling and begging in the streets, and rehabilitated through the action of the Welfare Housing Complex.

Clause (d). Identifying and reaching out to children at special risk. Children of migrant workers. The Committee notes that, according to the compilation prepared by the Office of the High Commissioner for Human Rights of 7 August 2009 for the Human Rights Council, Brunei is one of the main migrant-receiving countries of the Association of the South-East Asian Nations and more than 30 per cent of the labour force of Brunei is made up of foreign workers from the region (A/HRC/WG.6/6/BRN/2, paragraph 35). In its report, the Government itself acknowledges that Brunei is a regional hub for the receiving of migrant workers, placing it in the likely position of becoming a potential transfer point for human trafficking and smuggling. Yet, according to the Trafficking Report of 2011, Brunei does not have a proactive system to formally identify victims of trafficking among vulnerable groups, such as foreign workers and foreign women and children in prostitution, and the Government did not implement training for its officials on identifying trafficking victims. Observing that children of migrant workers are at an increased risk of becoming victims of sale and trafficking, the Committee requests the Government to take effective and time-bound measures to ensure that this group of children are protected from this worst form of child labour. It requests the Government to provide information on the progress made in this regard.

Part V of the report form. Application of the Convention in practice. The Committee notes that, in its concluding observations of 27 October 2003, the CRC expressed concern at the lack of systematic and comprehensive collection of disaggregated data for all areas covered by the Convention on the Rights of the Child and in relation to all groups of children in order to monitor and evaluate progress achieved (CRC/C/15/Add.219, paragraph 18). In the National Report of 9 September 2009 submitted by Brunei to the Human Rights Council, the Government states that challenges faced with respect to protecting and promoting the rights of the child include the need to strengthen the existing mechanism of data collection and indicators disaggregated by gender, age and urban and rural areas, covering all children up to the age of 18 years (A/HRC/WG.6/6/BRN/1, paragraph 93). The Committee therefore requests the Government to take the necessary measures to ensure that sufficient up-to-date data on the prevalence of the worst forms of child labour in the country is made available, particularly with regard to child trafficking. It requests the Government to provide this information in its next report, as well as any additional available information on the nature, extent and trends of the worst forms of child labour, and the number of children protected by the measures giving effect to the Convention. To the extent possible, this information should be disaggregated by age and sex.