Worst Forms of Child Labour Convention, 1999 (No. 182) - Malaysia (Ratification: 2000)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

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 response to its previous comments, the Committee notes the statistical information provided by the Government in its report concerning the application in practice of sections 5 to 10 of the Sexual Offences against Children Act No. 792 of 2017 related to the use or procuring of children for the production of pornography. According to this data, from 2017 to 2021, a total of 26 cases were brought to justice under section 5 (making or production of child pornography), of which 22 cases were completed, two cases were dismissed and two cases are under investigation. With regard to section 7 (using a child under 18 years for child pornography), 11 cases were brought before the court, of which, nine were completed, one was dismissed and one case is under investigation. The Committee observes that the Government has not provided any information on the convictions and sanctions imposed by the court on the perpetrators for the offences under sections 5 and 7 of the Sexual Offences against Children Act No. 792 of 2017. The Committee therefore requests the Government to continue to provide information on the application in practice of sections 5 and 7 of the Sexual Offences against Children Act No. 792 of 2017, indicating the convictions and sanctions handed down by the court.

Article 7(2) Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee took due note of the Government’s initiatives to improve access to education, including the Indigenous Education Programme which resulted in high enrolment rates at the primary and secondary education level as well as improved access to technical and vocational education. The Committee, however, notes from the 2019 report of the UNICEF–UNESCO Out of School Children Initiative (OOSCI) which undertook to compile comprehensive profiles of excluded children in Sabah where the labour force participation among children is the highest, that 23,560 or 6.3 per cent of primary school-age children do not attend school. Children most likely to be out-of-school or at risk of dropping out were often boys from rural areas of Bumiputera ethnicity or non-citizen children. In this regard, the Committee notes that according to the UNESCO statistics, 47,580 children and 165,855 adolescents were out of school in 2020. The Committee requests the Government to continue taking effective measures to ensure access to free basic education for all children, particularly boys from the ethnic community in Sabah and to provide information on the impact of the measures taken.

Clause (d). Identifying and reaching out to children at special risk. Street children, refugee and asylum-seeking children. In response to its previous comments, the Committee notes the Government’s information that Sekolah Bimbingan Jalinan Kasih (SBJK), an initiative to provide access to formal education for street children and abandoned children, has enrolled 150 children in 2020, 151 children in 2021, and 143 children 2022. It also notes that in 2021 a total of 3,621 children benefited from the 146 child activity centres, which provide rehabilitation programmes for children at risk and who are vulnerable to exploitation. The Government indicates that sensitization and awareness programmes are conducted regularly by child activity centres and child protection teams for communities and the public to provide a paradigm shift within society on various social issues including street children. In addition, the Federal Special Task Force for Sabah and Labuan carries out monthly operations throughout the state to rescue children living in the streets. The Government also states that undocumented street children who have been rescued are given shelter at the Rumah Perlindungan Ehsan in Kota Kinabalu and provided with assistance for identity documents, basic health needs, basic education programmes, life-skills activities and psychosocial counselling sessions.

The Committee notes from a report on Education in Malaysia published in October 2022 by the United Nations High Commissioner for Refugees (UNHCR) that refugee children in Malaysia are denied access to the formal education system and thus obtain education through an informal parallel system of community-based learning centres. This report further indicates that of the 23,823 refugee children of school-going age, only 30 per cent are enrolled in community learning centres. It further notes from the Report of the United Nations Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material of January 2019 that the phenomena of sale of children and sexual exploitation is vast and real in Malaysia against the backdrop of stateless, asylum seeking and refugee population. According to the UNHCR’s estimate, as of August 2018, 42,620 refugee (majority from Myanmar) and asylum-seeking children below the age of 18 were registered with the UNHCR (A/HRC/40/51/Add.3, paragraphs 6 and 23). Considering that street children, refugee and asylum-seeking children are at greater risk of being engaged in the worst forms of child labour, the Committee requests the Government to strengthen its efforts to protect these children from the worst forms of child labour, particularly by providing them with access to free basic education. The Committee further requests the Government to continue to provide information on the number of children in vulnerable situations, who have been receiving education at the SBJK and at the community learning centres as well as the number of children who have benefited from the rehabilitation programmes of the child activity centres.

Article 8. International cooperation and assistance. Regional cooperation. In response to its previous comments, the Committee notes the Government’s information that it continues to engage and collaborate with its neighbouring countries, in particular Thailand, Philippines and Indonesia on issues related to trafficking in persons through existing platforms such as Senior Officials Meeting on Transnational Crime (SOMTC), ASEAN-ACT ((ASEAN-Australia Counter Trafficking), Bali Process and otherwise. The Government indicates that it envisages to partner and collaborate with non-governmental organizations, civil society organizations, international organizations and academia in setting the road map for its anti-trafficking efforts within the framework of the National Action Plan on Anti-Trafficking in Persons 2021–2025 (NAPTIP 3.0). Furthermore, the Ministry of Women, Family and Community Development, in collaboration with the Global Shepherds Berhad (GSB) and International Justice Mission (IJM) Malaysia developed two training manuals that provide guidelines to address trafficking issues as well as to develop the necessary skills for better delivery of victim care and protection services. The Committee takes due note of this information.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 4(1) of the Convention. Determination of types of hazardous work. In its previous comments under the Minimum Age Convention, 1973 (No.138), the Committee noted that the Department of Occupational Safety and Health had developed a list of types of hazardous work prohibited to persons under the age of 18 years and that it was undergoing legal process for enactment.

The Committee notes the Government’s information in its report that the Children and Young Persons (Employment ) Act of 1966 was amended by the Children and Young Persons (Employment ) (Amendment ) Act of 2019 (CYP Amendment Act of 2019). It notes that section 3(b)(1A) of the CYP Amendment Act of 2019 prohibits the employment of children and young persons under the age of 18 years in hazardous work. The Committee notes with satisfaction that the Fourth Schedule of the CYP Amendment Act of 2019 lists over 25 types of hazardous work prohibited to children and young persons. This list includes: work related to machines, installations and other equipment; work conducted in hazardous environments, such as underground work, underwater or work in a confined space, work at heights, in dusty environments, in extreme weather conditions, manual handling, lifting, carrying or pushing heavy load; work that is exposed to biological hazards such as in laboratories, slaughterhouse, meat processing place or storages; construction work, work in the timber industry, petroleum platforms; and work as a lifeguard, in fishing activities, and work in water treatment plants. It also notes that section 3(c)(2B) of the CYP Amendment Act of 2019 prohibits children and young persons from engaging in employment specified in the Fifth Schedule of CYP Amendment Act of 2019 which contain seven activities, including engaging in prostitution or any work related to pornography, the production or sale of alcoholic beverages, lotteries and gambling activities, and for the production and trade of drugs and narcotics. The Committee requests the Government to provide information on the application in practice of sections 3(b)(1A) and 3(c)(2B) of the CYP Amendment Act of 2019, indicating the number and nature of violations reported and penalties imposed for the offences related to the employment of children under 18 years in the hazardous occupations listed under the Fourth and Fifth Schedule.

Articles 3(a), 5 and 7(1). Worst forms of child labour, monitoring mechanisms and penalties. Trafficking. The Committee notes that the Government has not provided any specific information concerning the investigations, prosecutions and penalties applied for the offences related to the trafficking of children. Nevertheless, it states that the Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM) Act of 2007 has been amended through the insertion of a new provision under section 14 (offence of trafficking in children) to specifically state that there is no need to prove the “means” element in child trafficking cases. With regard toits previous comments concerning the measures taken by the Task Force on Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM Task Force) to prevent trafficking of children under the age of 18 years, the Government states that it provides intelligence and information to all enforcement agencies under the Council for Anti-Trafficking in Persons and Ant-Smuggling of Migrants (MAPO). Moreover, according to the data provided by the Government, from 2019 to 2022, 57 child victims of trafficking, including 4 nationals, were identified by the ATIPSOM Task Force.

The Committee further notes from the Report of the United Nations Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material of January 2019 that the scope and magnitude of the sale and trafficking of children across the borders with Thailand, Viet Nam, Indonesia and the Philippines and within Malaysia for purposes of sexual and labour exploitation is an issue of grave concern. This report further indicates that in practice, child trafficking cases and statistics on convictions are not separated from other human trafficking cases (A/HRC/40/51/Add.3, paragraph 8). The Committee therefore once again urges the Government to take the necessary measures to ensure that, in practice, thorough investigations and prosecutions are carried out for persons who engage in the trafficking of children, and that sufficiently effective and dissuasive sanctions are imposed. In this regard, the Committee once again requests the Government to provide information on the number of cases of trafficking of children under the age of 18 years identified, including by the ATIPSOM Task Force, and the investigations, prosecutions, convictions and penal sanctions applied in accordance with the provisions of the ATIPSOM Act.

Articles 5 and 7(2)(a) and (d). Monitoring mechanisms and effective and time-bound measures. Access to free basic education and identifying and reaching out to children at special risk. Migrant children. In its previous comments, the Committee noted that tens of thousands of migrant workers’ children worked in the palm oil plantations without regulated employment hours, as well as in family food businesses, night markets, small-scale industries, fishing, agriculture and catering. It noted that children of migrant workers, particularly children of Indonesian workers face particular challenges accessing education, as non-nationals are prevented from accessing public education.

In response to its previous comments, the Committee notes the Government’s information that the findings of the Employment Survey in oil palm plantations carried out in 2018 by the Ministry of Plantation Industries and Commodities in collaboration with the ILO, indicates the existence of forced and child labour in the plantation sector with 8.3 per cent of children involved in hazardous work. The Government states that it is committed to eliminate and combat forced and child labour in the country and that various initiatives have been taken in this regard, including: (i) making amendments to the Children and Young Persons (Employment) Act; (ii) strengthening of the labour inspection system in order to protect children of migrant workers and carrying out regular labour inspections in the plantation sector; (iii) carrying out information and dialogue sessions for employers in the plantation sector on their rights and responsibilities, on the best labour practices to prevent forced and child labour, on mechanization and safety issues; and (iv) establishing Technical Working Groups to address child labour issues and to provide guidance on national legislations and policies on child labour.

With regard to access to education of non-citizen children, the Government indicates that they are allowed to access education in the government or government-aided schools if they meet the criteria and conditions set under the Education Act. The Government has created guidelines for alternative learning centres and has encouraged the initiatives by the private sector and NGOS to provide education for children of migrant workers working in plantations as well as for children who are not eligible to be admitted to formal education. In addition, the Government has facilitated the establishment of community learning centres (CLCs) in the plantations in Sabah and Sarawak, in a collaborative effort by the plantation owners and the Indonesian Embassy. The CLCs provides primary and lower secondary education which is run in Indonesian national curriculum. The Committee notes the Government’s indication that as of 2022 there are 112 CLCs in Sabah (86) and Sarawak (16) which accommodate more than 9,500 children.

The Committee further notes from the ILO Press release of October 2022 that 34 labour officers of the Sabah Department of Labour were trained and equipped with information and techniques utilizing the ILO Facilitator’s Manual: Training for Malaysian inspectors on forced labour, child labour and gender-based discrimination, violence and harassment in the workplace. This Press release indicates that more frequent inspections will be undertaken by these inspectors to ensure that the employers are compliant with all laws and policies pertaining to labour. Noting that 8.3 per cent of children are involved in hazardous work in the palm oil plantations, the Committee urges the Government to continue its efforts to protect children of migrant workers from engaging in the worst forms of child labour, particularly by ensuring their unreserved access to quality free basic education. It also requests the Government to continue to take the necessary measures to strengthen the labour inspection system to effectively monitor the implementation of labour laws so as to receive, investigate and address complaints of alleged violations of the worst forms of child labour. The Committee requests the Government to provide information on the measures taken in this regard, as well as information on the number of children identified and withdrawn from hazardous work in the plantation sector and provided with education.

Articles 6 and 7(2). Programmes of action and effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and removing them from these worst forms and ensuring their rehabilitation and social integration. Trafficking. The Committee notes the Government’s information that it has launched the third five-year National Action Plan on Trafficking in Persons (NAPTIP 3.0) 2021–25. It notes from the NAPTIP document that this national action plan focuses on nine programme areas with specific objectives, including combating child trafficking and providing victim-centred protection and assistance to victims of trafficking. This document also indicates that the Minister of Home Affairs provided funding support for three shelters for victims of trafficking and appointed three Victims Assistance Specialists (VAS) to carry out a 12-month pilot project in March 2019. This project was implemented to improve support services by assisting victims from the point of rescue, through the process of the criminal justice system and right up to repatriation, as well as to assist the enforcement officers and prosecutors in victim engagement and communication. During the 12-month pilot project, the VASs provided support services to a total of 72 victims. This project was further extended until March 2022. The Committee encourages the Government to strengthen its measures, within the framework of the National Action Plan to Combat Trafficking in Persons, 2021-25, to prevent trafficking of children under the age of 18 years, and provide for their removal from such situations and subsequent rehabilitation and social integration. It requests the Government to provide information on the concrete measures taken in this regard and on the results achieved in terms of the number of children reached through such measures.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 7(2) of the Convention. 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. In its previous comments, the Committee noted with interest the concrete education initiatives taken by the Government to improve and transform the educational system in Malaysia, including; the setting up of learning centres for non-citizens, out-of-school children and refugees; mainstreaming the Vocational Education and Training Programme (TVET) and providing equal access to all children; and developing a new Education Blueprint 2013–25.

The Committee notes from the Government’s report that according to the Education Blueprint Annual report of 2017, the enrolment rate for primary, lower secondary and upper secondary education reached 97.9 per cent, 96.6 per cent, and 86.6 per cent respectively. The Government has also improved access to TVET with a total of 55,404 students benefiting from the 89 technical and vocational colleges nationwide. Moreover, basic vocational courses are provided in 85 daily schools. The Committee further notes the Government’s information on the initiatives taken to reduce the gap between urban and rural schools, such as strengthening the Orang Asli (indigenous people) and Indigenous Education Programme and introducing the Road map for the Education Transformation of the Orang Asli and Indigenous Community. The Committee further notes the Government’s information that the school attendance rates of Orang Asli students reached 87.3 per cent in 2017.

Clause (d). Identifying and reaching out to children at special risk. Street children. Following its previous comments, the Committee notes the Government’s information that the Child Activity Centres, among others, provide shelter and counselling as well as provisions for learning computer and other skills, and sports, leisure, cultural and art programmes. It notes from the Government’s report that until 2017, a total of 23,634 children benefited from the 149 Child Activity Centres established at the state and district levels in Malaysia. The Committee also notes the Government’s information that the Ministry of Education, in collaboration with the Social Welfare Department and NGOs, established a school programme for street children and abandoned children who have failed to pursue education due to various reasons. In this regard, the first school known as the Sekolah Bimbingan Jalinan Kasih (SBJK) which was started in the Chow Kit area of Kuala Lumpur in 2013, has 99 children enrolled in 2018. It also notes the Government’s indication that it is envisaged to extend the SBJK nationwide. The Committee requests the Government to pursue its efforts to protect vulnerable children from the worst forms of child labour and to provide for their rehabilitation and social integration. It requests the Government to continue to provide information on the number of children living in street situations and other children in vulnerable situations, who have been receiving education at the SBJK as well as the number of children who have benefited from the rehabilitation programmes of the Child Activity Centres.

Article 8. International cooperation and assistance. Regional cooperation. Following its previous comments, the Committee notes with interest the Government’s information that Malaysia, together with other ASEAN (Association of Southeast Asian Nations) member States (Cambodia, Indonesia, Lao People’s Democratic Republic, Malaysia, Myanmar, Philippines, Thailand and Viet Nam) signed the ASEAN Convention Against Trafficking in Persons, especially Women and Children on 21 November 2015 which was ratified by Malaysia on 7 September 2017. The Government also indicates that it is currently exploring the possibility of concluding a memorandum of understanding to strengthen cooperation in addressing cases of trafficking in persons with the Governments of Thailand, Cambodia and Viet Nam. It further notes the information from an article by the United Nations Office on Drugs and Crime (UNODC) that nine countries, including ASEAN countries and Bangladesh, participated in a workshop organized by the law enforcement experts of the UNODC with the aim to promote law enforcement collaboration and proactive intelligence-led investigations among countries in order to address unresolved trafficking in persons and migrant smuggling cases. The Committee encourages the Government to pursue its efforts to cooperate with the neighbouring countries with a view to eliminating child trafficking for labour and commercial sexual exploitation. It also requests the Government to provide information on the measures taken or envisaged to ensure the rehabilitation and social integration of child victims of trafficking.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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 noted that section 31(1)(b) read in conjunction with section 17(2)(c)(i) of the Child Act of 2001 which provided for penalties for the offences related to sexual abuse of a child, including using a child for the purposes of any pornographic, obscene or indecent material, applied only to persons with the care of a child, such as a parent, guardian or a member of the extended family. It also observed that section 377E of the Penal Code which prohibits any person from inciting a child to any act of gross indecency extended only to children under the age of 14 years. The Committee noted with regret that despite raising this issue since 2003, the Government had not taken any measures in this regard.

The Committee notes with satisfaction that the Government enacted the Sexual Offences against Children Act No. 792 of 2017 which specifically prohibits the use, procuring or offering of a child under the age of 18 years for pornography. According to section 5 of this Act, any person who makes, produces, directs the making or production of, or participates, engages or is involved in the making or production of any child pornography shall be punished with imprisonment for a term not exceeding 30 years. The Committee also notes that sections 6 to 10 of the Sexual Offences against Children Act further provides for penalties for offences related to using a child in the making or production of pornography as well as exchanging, publishing, selling or accessing child pornography. The Committee requests the Government to provide information on the application in practice of sections 5 to 10 of the Sexual Offences against Children Act of 2017, including the number of and nature of violations, investigations, prosecutions, convictions and sanctions applied.

Article 4(1). Determination of types of hazardous work. With regard to the adoption of the list of hazardous types of work prohibited to children under the age of 18 years, the Committee requests the Government to refer to its detailed comments under the Minimum Age Convention, 1973 (No. 138).

Articles 5 and 7(2)(a) and (d). Monitoring mechanisms and effective and time-bound measures. Identifying and reaching out to children at special risk. Migrant children. In its previous comments, the Committee had noted the indication of the Worker members at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference of June 2009 that, according to the Indonesian National Commission for Child Protection (INCCP), cases of forced labour of migrant workers and their children on plantations in Sabah involved an estimated 72,000 children. It also noted that tens of thousands of migrant workers’ children also worked in the plantations without regulated employment hours, which meant that they worked all day long. Other sectors where migrant workers’ children were often found working were in family food businesses, night markets, small-scale industries, fishing, agriculture and catering. According to the INCCP, children of migrant workers born under these conditions were not provided with birth certificates or any other type of identity document, effectively denying them their right to education. The Committee further noted the information from the UNESCO Global Monitoring Report of 2011 that there were an estimated 1 million undocumented migrants living in Malaysia, many of them children. It noted the various measures taken by the Government, including the provision of education to children of Indonesian migrants in palm oil plantations by the Human Child Aid Society (HCAS). However, the Committee expressed its concern that despite the high number of migrant children involved in hazardous work in the plantation sector, no such cases were identified during inspections.

The Committee notes the Government’s information that the Malaysian Sustainable Palm Oil (MSPO) certification compliance towards branding Malaysian palm oil as sustainably produced and safe, will be made mandatory by the end of 2019. It also notes the Government’s information that as of February 2018, 758,923 hectares of palm oil plantations have obtained the MSPO certification which emphasizes the zero child labour requirement. Moreover, the Government indicates that the proposed comprehensive study on the labour situation in Malaysian palm oil plantations, envisaged to be conducted in collaboration with the ILO, will enable it to plan further action to eliminate child labour in this sector. The Committee finally notes the Government’s information that in 2017, an estimated 11,000 children of Indonesian migrants were provided education by the HCAS. The Committee notes, however, that according to a UNICEF report entitled Palm oil and children in Indonesia, 2016, children of Indonesian workers on Malaysian plantations face particular challenges accessing education, as non-nationals are prevented from accessing public education. This report further states that while alternative learning centres funded by plantations and run by NGOs have been established, the quality of the education offered is variable and the opportunities to study beyond the primary level remain limited. The Committee, therefore, urges the Government to take effective and time bound measures to protect children of migrant workers in palm oil plantations, particularly by guaranteeing their access to quality education, in order to prevent them from engaging in the worst forms of child labour. It also urges the Government to take the necessary measures to strengthen the labour inspection system to effectively monitor the implementation of labour laws so as to receive, investigate and address complaints of alleged violations of child labour. The Committee finally requests the Government to provide information on the findings of the proposed study on the labour situation in the palm oil plantations, in particular regarding children in hazardous work and the action plans developed thereafter for the elimination of hazardous child labour in this sector.

Articles 6, 7(1) and 7(2). Programmes of action, penalties and effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and removing them from these worst forms and ensuring their rehabilitation and social integration. Trafficking. In its previous comments, the Committee noted the Government’s information that the National Action Plan to Combat Trafficking in Persons 2016–20 (NAP 2016–20) was updated. It noted from the Report of the Special Rapporteur of the United Nations Human Rights Council on trafficking in persons, especially women and children of 15 June 2015, that young girls were trafficked into domestic servitude by employment agencies in their home country or employers in Malaysia with the alleged complicity of State officials. Moreover, a high number of girls and boys were trafficked into the sex industry with an increase in the prevalence of trafficking of boys for work in the sex industry. This report further indicated that children were trafficked for the purpose of forced begging and drug trafficking.

The Committee notes from the Government’s report that within the framework of the NAP 2016–20, several awareness-raising programmes on trafficking of people were implemented, including 9,006 announcements via radio and 1,605 trafficking trailers broadcast via television. Moreover, an anti-trafficking hotline, which is accessible 24 hours per day, was launched in 2017. The Government report also indicates that from January to October 2017, 92 child victims of trafficking (44 boys and 48 girls) were rescued. The Committee further notes from its report submitted under the Forced Labour Convention, 1930 (No. 29), that a multi-agency Task Force on Anti-Trafficking in Persons and Anti-Smuggling of Migrants (ATIPSOM Task Force) was established in 2016 in order to strengthen cooperation between enforcement agencies, particularly with regard to investigation and intelligence sharing. The Committee notes, however, that the Committee on the Elimination of Discrimination against Women (CEDAW), in its concluding observations of 14 March 2018, expressed its concern that Malaysia remained a country of destination for trafficking of women and girls for purposes of sexual exploitation, begging and forced labour. The CEDAW further expressed concern at the complicity among law enforcement officials in allowing undocumented border crossings and impunity of those responsible for crimes relating to trafficking of persons along the border between Malaysia and Thailand (CEDAW/C/MYS/CO/3-5, paragraph 25). The Committee urges the Government to take the necessary measures to ensure that all perpetrators of trafficking in children, including complicit and corrupt officials, are subject to thorough investigations and prosecutions and that sufficiently effective and dissuasive penalties are imposed in practice. In this regard, the Committee requests the Government to provide information on the measures taken by the ATIPSOM Task Force to prevent trafficking of children under the age of 18 years as well as the number of cases of trafficking of children, disaggregated by gender, age and nationality that have been identified and dealt with by them. Moreover, it requests the Government to strengthen its measures, within the framework of the National Action Plan to Combat Trafficking in Persons, 2016–20, to prevent trafficking of children under the age of 18 years, and provide for their removal from such situations and subsequent rehabilitation and social integration. It asks the Government to provide information on the concrete measures taken in this regard and on the results achieved in terms of the number of children reached through such measures.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 3 of the Convention. Worst forms of child labour. 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 punishes anyone who causes or procures or allows any person under 18 years of age to carry out illegal activities, including the production and trafficking of drugs. It also noted that according to section 39B(1) of the Dangerous Drugs Act, 1952 the offences related to trafficking of drugs by any person shall be punished with the death penalty. The Committee observed that, although children had been convicted for trafficking of drugs (under the Dangerous Drugs Act), it did not appear that any adult had been charged with the use, procuring or offering of a child for this offence under section 32 of the Child Act. It also recalled that children used by adults for the production and trafficking of drugs should be treated as victims.

The Committee notes the Government’s indication that the offences related to using or involving a child for drug-related offences, by another person, is contained in section 33 of the Dangerous Drugs Act. According to this provision, any person who abets the commission of, or who attempts to commit, or does any act preparatory to or in furtherance of the commission of any offence under this Act shall be guilty of such offence and liable to punishment provided for such offence. The Committee also notes the Government’s statement that, in practice, section 32 of the Child Act is not applied as it carries a lighter penalty for the offender than the one established under the Dangerous Drugs Act. The Committee requests the Government to provide information on the application in practice of section 33 of the Dangerous Drugs Act with regard to the prohibition on the use, procuring or offering of a child under the age of 18 years for the production and trafficking of drugs.

Article 7(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. Following its previous comments, the Committee notes the Government’s statement in its report that the national commitment to achieving the goal of basic education for all children has been translated into concrete education initiatives and has resulted in a steady growth in the enrolment of students in primary education. According to the Government’s report, the gross enrolment rate at primary level reached 96.6 per cent in 2013. The Committee also notes the detailed information provided by the Government on the measures taken to provide access to basic education to children of non-citizens, by setting up learning centres targeting out-of-school children and refugees. Moreover, measures are being taken to mainstream the Vocational Education and Training Programme (TVET) to enhance the national education system by way of optimizing the chances of education and ensuring zero drop outs. The TVET provides equal access to all children. The Committee further notes the information from the Ministry of Education that in 2011, it launched a comprehensive review of the education system in Malaysia in order to develop a new Education Blueprint 2013–25. The Blueprint lays emphasis on five outcomes such as: access (100 per cent enrolment across all levels up to secondary by 2020), quality, equity (5 per cent reduction in achievement gaps (urban–rural, socio-economic, gender) by 2020), unity and efficiency. This transformation will be implemented over a span of 13 years with an initial focus on addressing the gaps in the current system and laying the foundation for a radically new education system. The Committee notes with interest the Government’s initiative to improve and transform the educational system. The Committee encourages the Government to pursue its efforts to improve the educational system and facilitate access to free education to all children. It requests the Government to provide information on the measure taken to achieve the five outcomes of the Education Blueprint and the results achieved.

Clause (d). Identifying and reaching out to children at special risk. Street children. The Committee previously noted the Government’s statement that it was in the process of drawing up programmes to provide care and shelter for street children and integrating these children into local society.

The Committee notes the Government’s information that, 149 Child Activity Centres have been established at the state and district levels, aimed at mobilizing community participation in the implementation of preventive and rehabilitation programmes for children at risk and who are vulnerable to exploitation. The Government also indicates that a school was set up in Kuala Lumpur in 2013 for street children, abandoned children and other children who fail to pursue education due to factors including lack of legal identification/documentation, poverty, unhealthy social life or broken family. The Committee requests the Government to provide information on the number of street children and other children in vulnerable situations, who have been receiving education at the school set up for street children in Kuala Lumpur. It also requests the Government to provide information on the activities undertaken by the Child Activity Centres to prevent children at risk from being involved in the worst forms of child labour. It finally requests the Government to provide information on the number of children who have benefited from the rehabilitation programmes of the Child Activity Centres.

Article 8. International cooperation and assistance. Regional cooperation. Following its previous comments, the Committee notes the Government’s information that a Memorandum of Understanding (MoU) has been concluded between Malaysia and Thailand to strengthen cooperation in addressing trafficking in persons, including protection of victims, law enforcement cooperation and repatriation process. The Government also indicates that it is currently exploring the possibility of concluding an MoU with Indonesia to combat transnational crime, with trafficking in persons as one of the areas of cooperation. The Committee encourages the Government to pursue its efforts to cooperate with the neighbouring countries with a view to eliminating child trafficking for labour and commercial sexual exploitation. It also requests the Government to provide information on the measures taken or envisaged to ensure the rehabilitation and reintegration of child victims of trafficking.

Application of the Convention in practice. Trafficking. The Committee notes the statistical information provided by the Government regarding the number of cases of trafficking in persons investigated and number of victims identified. However, this data does not indicate how many of those cases involved children under the age of 18 years. The Committee, therefore, requests the Government to provide information on the number of cases of trafficking of children for labour and commercial sexual exploitation, 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.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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 noted that section 31(1)(b) of the Child Act of 2001 provides for penalties to any person with the care of a child who sexually abuses the child or causes or permits him/her to be so abused. It also noted that section 17(2)(c)(i) of the Child Act refers to the sexual abuse of a child, including using a child for the purposes of any pornographic, obscene or indecent material, by his/her parent, guardian or a member of the extended family. The Committee requested 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.

The Committee notes the Government’s reference in its report to the provisions under the Penal Code and Children and Young Persons (Employment) Act, 1966 and the Communication and Multimedia Act 1998. The Committee observes that section 377E of the Penal Code which prohibits any person from inciting a child to any act of gross indecency extends only to children under the age of 14 years, while the other two pieces of legislation do not contain any specific prohibition on the use, procuring or offering of a child under the age of 18 years for the production of pornography or for pornographic performances. The Committee notes with regret that despite raising this issue since 2003, the Government has not taken any measures in this regard. The Committee, therefore, urges the Government to take immediate and effective measures to ensure that the use, procuring or offering of a child under 18 years of age, by anyone, for the production of pornography or for pornographic performances is prohibited, as a matter of urgency. It requests the Government to provide information on any measures taken in this regard.

Article 4(1). Determination of types of hazardous work. The Committee previously noted the Government’s indication that the Labour Department would hold consultations with the relevant authorities, such as the Department of Safety and Health, in order to determine the types of hazardous work to be prohibited to persons under the age of 18, pursuant to section 2(6) of the Children and Young Persons (Employment) Act of 1966 (CYP Act) as amended in 2010.

The Committee notes the Government’s statement that it is in the process of reviewing the CYP Act with a view to determine the types of hazardous work prohibited to persons under the age of 18 years. The Committee notes with regret that the Government has been referring to the revision of the CYP Act since 2003, in this regard. The Committee, therefore, urges the Government to take the necessary measures to ensure that the hazardous types of work prohibited to children under the age of 18 years are determined in the near future. It requests the Government to provide information on any progress made in this regard.

Articles 5 and 7(2) clause (d). Monitoring mechanisms and effective and time-bound measures. Identifying and reaching out to children at special risk. Migrant children. The Committee previously noted the indication of the Worker members at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference of June 2009 that, according to the Indonesian National Commission for Child Protection (INCCP), cases of forced labour of migrant workers and their children on plantations in Sabah involved an estimated 72,000 children. The Committee also noted 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. According to the INCCP, 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. The Committee also noted the information from the UNESCO Global Monitoring Report of 2011 that there were an estimated 1 million undocumented migrants living in Malaysia, many of them children.

In this regard, the Committee notes the Government’s information that a non profit organization, namely the Human Child Aid Society (HCAS) provides education to children of Indonesian migrants in palm oil plantations. Measures were also taken by the Ministry of Women, Family and Community Development to appoint Indonesian teachers in such schools. The Committee also notes the Government’s indication that the Sabah Labour Department regularly conducts inspections of workplaces in order to monitor compliance with the provisions related to the protection of children and young persons under the Labour Ordinance. According to the data provided by the Government, 7,946 workplaces were inspected in 2014 and 5,162 workplaces were inspected up to June 2015 during which no cases involving children were detected. While noting the measures taken by the Government, the Committee is bound to express its concern that despite the high number of migrant children involved in hazardous work in the plantation sector, no such cases were identified during inspections. In this regard, the Committee recalls that strengthening the capacity of labour inspectors to detect children engaged in hazardous work is essential, particularly in countries where children are, in practice, engaged in hazardous work but no such cases have been detected by the labour inspectorate (see General Survey of 2012 on the fundamental Conventions, paragraph 632). The Committee, therefore, urges the Government to take effective and time bound measures to protect children of migrant workers from the worst forms of child labour, in particular in the palm oil plantations. It also urges the Government to take the necessary measures to strengthen the labour inspection system to effectively monitor the implementation of labour laws so as to receive, investigate and address complaints of alleged violations of child labour. In this regard, the Committee requests the Government to take the necessary measures to promote collaboration between the labour inspectorate and other relevant stakeholders and to provide training to the labour inspectors to detect cases of children engaged in hazardous work in the palm oil plantations. The Committee finally requests the Government to provide information on the number of children of Indonesian migrants who have been provided education by the Human Child Aid Society.

Article 7(2). Effective and time-bound measures. Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and removing them from these worst forms and ensuring their rehabilitation and social integration. Trafficking. The Committee notes the Government’s information that the National Action Plan to Combat Trafficking in Persons 2016–20 has been updated. It also notes the Government’s indication that from 2014 to 2015, 66 child victims of trafficking (61 girls and 5 boys) were temporarily protected in the shelter home. The Committee notes, however, from the Report of the Special Rapporteur of the United Nations Human Rights Council on trafficking in persons, especially women and children of 15 June 2015, that young girls are trafficked into domestic servitude by employment agencies in their home country or employers in Malaysia with the alleged complicity of State officials. Moreover, a high number of girls and boys are trafficked into the sex industry with an increase in the prevalence of trafficking of boys for work in the sex industry. Young girls are lured with false promises of legal work in Malaysia, but are subsequently coerced into the commercial sex trade. This report further indicates that children are trafficked for the purpose of forced begging and drug trafficking. The Committee requests the Government to strengthen its measures, including within the framework of the National Action Plan to Combat Trafficking in Persons, 2016–20, to prevent trafficking of children under the age of 18 years, and provide for their removal from such situations and subsequent rehabilitation and social integration. It requests the Government to provide information on the concrete measures taken in this regard and on the results achieved in terms of the number of children reached through such measures.

The Committee is raising other matters in a request addressed directly to the Government.

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

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Article 7(2) of the Convention. 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 previously noted that the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, expressed concern regarding the number of children of primary-school age who are not attending school (CRC/C/MYS/CO/1, paragraph 73). The Committee also noted the information in the Government’s 2008 report to the Human Rights Council for the Universal Periodic Review that Malaysia had started to implement a comprehensive set of education support measures which included textbook, food and transport assistance, in addition to scholarships and tuition aid schemes (A/HRC/WG.6/4/MYS/1/Rev.1, paragraph 34).

The Committee notes the information in the Government’s report that the Ministry of Education continues to provide various types of assistance to poor children, including the Poor Students Trust Fund, the Federal Scholarship and the University Preparatory Class Scholarship. The Government also states that, as of 1 January 2008, parents do not have to pay a special fee for primary or secondary school, and that examination fees have also been abolished. The Committee welcomes these measures, but also notes the information in the 2011 UNESCO Global Monitoring Report that the number of out-of-school children of primary-school age has risen from 70,000 in 1999 to 125,000 in 2008. Considering that education contributes to preventing the engagement of children in the worst forms of child labour, the Committee encourages the Government to pursue and strengthen its efforts to facilitate access to free basic education to children from poor families. It requests the Government to provide information on measures taken in this regard and on the results achieved, particularly with respect to reducing the number of out-of-school children.

Clause (d). Identifying and reaching out to children at special risk. Street children. The Committee previously noted the indication of the Worker members at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference of June 2009, that in Sabah, according to the Indonesian National Commission for Child Protection (INCCP), an unknown number of children begged in the streets; estimates ranged from a few hundred to as many as 15,000 children.

The Committee notes the Government’s indication that a pilot study on street children in Sabah was conducted by the Ministry of Women, Family and Community Development in 2010. This study recorded 2,770 street children in Sabah, who worked primarily as shop or restaurant assistants, car washers, in construction, or assisted their parents with their business. This study indicated that these street children worked to provide financial support for themselves and their family. This study indicated that 334 of the children recorded worked every day, and 293 children were employed by employers. The Committee also notes the Government’s statement that it is in the process of drawing up programmes which will include getting more local non-governmental organizations to provide care and shelter, expediting the process of the registration of street children and integrating these children into local society. Recalling that street children are particularly vulnerable to the worst forms of child labour, the Committee urges the Government to strengthen its efforts to protect children from these worst forms. It requests the Government to continue to provide information on measures taken in this regard, and on the results achieved.

Migrant children. The Committee previously noted the indication of the Worker members at the Conference Committee on the Application of Standards in 2009 that, according to the INCCP, cases of forced labour of migrant workers and their children on plantations in Sabah involved an estimated 72,000 children. The Committee also noted the indication of the Worker member of Indonesia that, following a 2008 fact-finding mission to the plantations in Sabah, the INCCP reported 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.

The Committee notes the Government’s statement that, with regard to the involvement of children in the plantation sector in Sabah, the Sabah Labour Ordinance provides that no person shall knowingly employ immigrant workers unless a licence has been obtained by the Director of Labour (section 118). The Government indicates that employers’ applications will be considered by a committee chaired by the Director of Immigration of Sabah, and that this consideration may include a visit to the place of employment. The Committee also notes the Government’s information that in 2010, the Sabah Labour Department carried out statutory inspections at 5,011 places of employment and received 470 complaints on various labour issues. The Government indicates that these inspections, and subsequent investigations, found 16 employers were employing children and young persons, but that these persons were employed in compliance with the law. The Government further indicates that no prosecutions were carried out in 2010 with regard to the employment of children and young persons. In addition, the Committee notes the information in the Government’s report that the programmes to reach out to street children in Sabah include the widening of the operation of the validation of the documentation of children. However, the Committee notes the information from the UNESCO Global Monitoring Report of 2011 that there are an approximate 1 million undocumented migrants living in Malaysia, many of them children. The Committee recalls that migrant children may be particularly vulnerable 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, and to provide information on the results achieved.

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

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

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.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 6 of the Convention. Programmes of action. The Committee previously noted the Government’s indication that the National Policy on Children and its Plan of Action (NPAC) had been approved in 2009, and that policies and plans of the NPAC were set to have considerable impact on the elimination of the worst forms of child labour.

The Committee notes the Government’s statement that, in line with the NPAC, the Ministry of Women, Family and Community Development launched a 24-hour telephone line for children in 2010. The Government indicates that this telephone line received 4,127 calls between November 2010 and 2011, one of which related to child labour. The Government states that this case of child labour was resolved immediately. The Committee also notes that the Ministry of Women, Family and Community Development has organized several advocacy and awareness workshops through the NPAC related to the strengthening of child services in centres run by non-governmental organizations and the Department of Social Welfare.

Article 7(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 previously noted that the Committee on the Rights of the Child, in its concluding observations of 25 June 2007, expressed concern regarding the number of children of primary-school age who are not attending school (CRC/C/MYS/CO/1, paragraph 73). The Committee also noted the information in the Government’s 2008 report to the Human Rights Council for the Universal Periodic Review that Malaysia had started to implement a comprehensive set of education support measures which included textbook, food and transport assistance, in addition to scholarships and tuition aid schemes (A/HRC/WG.6/4/MYS/1/Rev.1, paragraph 34).

The Committee notes the information in the Government’s report that the Ministry of Education continues to provide various types of assistance to poor children, including the Poor Students Trust Fund, the Federal Scholarship and the University Preparatory Class Scholarship. The Government also states that, as of 1 January 2008, parents do not have to pay a special fee for primary or secondary school, and that examination fees have also been abolished. The Committee welcomes these measures, but also notes the information in the 2011 UNESCO Global Monitoring Report that the number of out-of-school children of primary-school age has risen from 70,000 in 1999 to 125,000 in 2008. Considering that education contributes to preventing the engagement of children in the worst forms of child labour, the Committee encourages the Government to pursue and strengthen its efforts to facilitate access to free basic education to children from poor families. It requests the Government to provide information on measures taken in this regard and on the results achieved, particularly with respect to reducing the number of out-of-school children.

Clause (d). Identifying and reaching out to children at special risk. 1. Street children. The Committee previously noted the indication of the Worker members at the Conference Committee on the Application of Standards at the 98th Session of the International Labour Conference of June 2009, that in Sabah, according to the Indonesian National Commission for Child Protection (INCCP), an unknown number of children begged in the streets; estimates ranged from a few hundred to as many as 15,000 children.

The Committee notes the Government’s indication that a pilot study on street children in Sabah was conducted by the Ministry of Women, Family and Community Development in 2010. This study recorded 2,770 street children in Sabah, who worked primarily as shop or restaurant assistants, car washers, in construction, or assisted their parents with their business. This study indicated that these street children worked to provide financial support for themselves and their family. This study indicated that 334 of the children recorded worked every day, and 293 children were employed by employers. The Committee also notes the Government’s statement that it is in the process of drawing up programmes which will include getting more local non-governmental organizations to provide care and shelter, expediting the process of the registration of street children and integrating these children into local society. Recalling that street children are particularly vulnerable to the worst forms of child labour, the Committee urges the Government to strengthen its efforts to protect children from these worst forms. It requests the Government to continue to provide information on measures taken in this regard, and on the results achieved.

2. Migrant children. The Committee previously noted the indication of the Worker members at the Conference Committee on the Application of Standards in 2009 that, according to the INCCP, cases of forced labour of migrant workers and their children on plantations in Sabah involved an estimated 72,000 children. The Committee also noted the indication of the Worker member of Indonesia that, following a 2008 fact-finding mission to the plantations in Sabah, the INCCP reported 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.

The Committee notes the Government’s statement that, with regard to the involvement of children in the plantation sector in Sabah, the Sabah Labour Ordinance provides that no person shall knowingly employ immigrant workers unless a licence has been obtained by the Director of Labour (section 118). The Government indicates that employers’ applications will be considered by a committee chaired by the Director of Immigration of Sabah, and that this consideration may include a visit to the place of employment. The Committee also notes the Government’s information that in 2010, the Sabah Labour Department carried out statutory inspections at 5,011 places of employment and received 470 complaints on various labour issues. The Government indicates that these inspections, and subsequent investigations, found 16 employers were employing children and young persons, but that these persons were employed in compliance with the law. The Government further indicates that no prosecutions were carried out in 2010 with regard to the employment of children and young persons. In addition, the Committee notes the information in the Government’s report that the programmes to reach out to street children in Sabah include the widening of the operation of the validation of the documentation of children. However, the Committee notes the information from the UNESCO Global Monitoring Report of 2011 that there are an approximate 1 million undocumented migrants living in Malaysia, many of them children. The Committee recalls that migrant children may be particularly vulnerable 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, and to provide information on the results achieved.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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.

Clause (d). Hazardous work. In its previous comments, the Committee noted that the relevant legislation did not contain any provisions prohibiting young people under 18 years of age from being engaged in hazardous types of work. The Committee urged the Government to take immediate measures to ensure that the prohibition of hazardous types of work applied to persons under 18 years of age, in accordance with Article 3(d) of the Convention.

The Committee notes that the Children and Young Persons (Employment) (Amendment) Act of 2010 (CYP Amendment Act) was adopted and has been in force since 1 March 2011. The Committee notes with satisfaction that, pursuant to the CYP Amendment Act, the term “child” is now defined in the CYP Act as a person under 15 years of age and the term “young person” is defined as a person between 15 and 18 years of age (pursuant to section 1A), and that pursuant to section 2(1) of the CYP Act, no child or young person shall be required or permitted to engage in any hazardous employment. Moreover, pursuant to section 2(4), no child or young person may be engaged in work that is dangerous to life, limb, health, safety and morals. The Committee also notes that section 2(5) of the CYP Act has been amended to state that no child or young person may be engaged in work underground, or in any employment contrary to the provisions of the Factories and Machinery Act, the Occupational Safety and Health Act of 1994 or the Electricity Supply Act of 1990.

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.

Part V of the report form. 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.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

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. 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 noted 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 observed that section 377E only extends this prohibition to the case of children who are under 14 years of age. The Committee noted 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 noted 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(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 noted 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 noted 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 noted 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(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 noted 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 noted 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 noted 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 indicated 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(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 noted 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 indicated 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 noted 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 noted 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 noted that, according to the UNESCO Report, the net enrolment rate in primary education is 100 per cent. However, the Committee noted 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 noted 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 noted 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 noted 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 noted 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 noted 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 noted the Government’s information that the MOU between Malaysia and Thailand has been suspended. The Committee noted 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 noted 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 noted the Government’s information that the MWFCD is conducting a pilot study to develop a database on street children in Sabah. The Government also indicated 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 noted 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.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2009, published 99th ILC session (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.

Observation (CEACR) - adopted 2008, published 98th ILC session (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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

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 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. 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 noted 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 noted 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 noted the Government’s information that the matter relates to policy and should be referred to the Labour Policy Division. The Committee recalled 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 noted 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 noted 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 noted 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 noted 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 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 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 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.

The Committee noted 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 noted 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 noted 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.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (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.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the Government’s first and second reports, and requests it to supply further information on the following points.

Article 1 of the Convention. Measures taken to secure the prohibition and elimination of the worst forms of child labour. The Committee notes the Government’s indication that a tripartite committee has been set up by the Ministry of Human Resources to review all labour legislation and that it most probably will review in 2004 the Children and Young Persons (Employment) Act, 1966. It also notes that, by virtue of section 3 of the Child Act, 2001, a "coordinating council for the protection of children" shall be established. It shall be responsible for advising the Minister on all aspects of child protection, to develop programmes to educate the public on the prevention of child abuse and neglect, design an efficient and effective management system throughout Malaysia incorporating information channels for reporting cases of children in need of protection. The Committee requests the Government to indicate whether the coordinating council for the protection of children 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 2. Definition of a child. The Committee notes the Government’s report indicating that under section 1A(1) of the Children and Young Persons (Employment) Act, 1966, a "child" is a person below the age of 14 years and a "young person" is a person aged 14 to 16 years. However, the Committee also observes that according to section 2(1) of the Child Act, 2001, a "child" means a person under the age of 18. The Committee thus observes that the law does not provide for a comprehensive and unique definition of a child. Recalling that, under this Article of the Convention, the term "child" shall apply to all persons under the age of 18, the Committee requests the Government to take the necessary measures to harmonize the provisions of its legislation and to ensure that the term "child" shall apply to all persons under 18 years of age for the purposes of the Convention.

Article 3. Worst forms of child labour. Clause (a). 1. All forms of slavery or practices similar to slavery. The Committee notes that the Government’s report does not provide any information on this issue. However, it notes that article 6 of the Constitution provides that no person shall be held in slavery and prohibits forced labour. It further notes that under section 370 of the Penal Code, it is prohibited to import, export, remove, buy, sell or dispose of any person as a slave; under section 367 it is forbidden to kidnap or abduct a person in order for that person to be subject to grievous hurt or slavery. It observes that section 374 of the Penal Code states that anyone who unlawfully compels a person to work against the will of that person shall be punished with imprisonment for a term which may extend to one year and/or a fine. Moreover, the Committee observes that the sale and trafficking of children is expressly prohibited by section 48 of the Child Act, 2001, noting that a child means any person under 18 years of age for the purpose of this Act. The Committee requests the Government to provide information on the practical application of the abovementioned provisions prohibiting slavery, forced labour, and the sale and trafficking of children.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee notes the absence of information in the Government’s report on this issue. However, it observes that the Child Act, 2001, sets detailed provisions under section 43(1)(a) prohibiting the procurement, sale, hiring or otherwise disposing of or buying of a child with the intent that he/she will be employed or used for the purpose of prostitution either within or outside the country. It also notes that under section 43(1)(f) and (g), any person who detains a child in a brothel against the child’s will or in any other places with intent that the child will be employed or used for the purposes of prostitution or for any unlawful or immoral purposes commits an offence and is liable to a fine not exceeding 50,000 ringgit and imprisonment for a term of not less than three years but not more than 15 years. The Committee requests the Government to provide information on the practical application of these provisions.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee notes the absence of information in the Government’s report on this issue. However, it observes that the Child Act, 2001, refers indirectly to the use, procuring or offering of a child for the production of pornography or for pornographic performances. Indeed, according to section 17(1) of the Child Act, 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 his/her extended family. Section 17(2) of the Child Act, 2001, specifies that a child is sexually abused if he/she has taken part, whether as a participant or an observer, in any activity for the purpose of any pornographic, obscene or indecent material, photograph, recording, film, videotape or performance. The Committee requests the Government to provide information on the application of the abovementioned provisions in practice. Noting that there appear to be no provisions that specifically prohibit and punish the exploitation of child pornography, the Committee also requests the Government to provide information on the measures taken or envisaged to ensure that the use, procuring or offering of a child by anyone for the production of pornography or for pornographic performances are prohibited and sanctioned.

Clause (c). The use, procuring or offering of a child for illicit activities. The Committee notes the absence of information in the Government’s report on the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs. The Committee, however, notes that section 32 of the Child Act, 2001, provides penalties for anyone who causes or procures or allows any child (a person under 18, according to section 2(1)(e) of the Act) 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 recalls that by virtue of Article 3(c) of the Convention, the use, procuring, offering of a child for illicit activities, in particular for the production and trafficking of drugs, is considered to be one of the worst forms of child labour, and therefore prohibited for children under 18 years of age. The Committee asks the Government to provide information on the meaning and activities falling under "illegal activities detrimental to the health or welfare of the child" (section 32 of the Child Act, 2001).

Clause (d). Hazardous work. The Committee notes that section 2(1) of the Children and Young Persons (Employment) Act provides that no child or young person shall be, or be required or permitted to be engaged in any employment other than those specified in this section. The Act outlines the types and nature of work that a young person is allowed to be engaged in. The Committee notes that, by virtue of section 2(3) of the Act, a young person may be employed: (a) as a domestic servant; (b) in any office, shops (including hotels, bars, restaurants), factories, theatres, clubs or association; (c) in industrial undertakings suitable to his/her capacity; and (d) on any vessel under the personal charge of his/her parents or guardian. However, section 3 of the Children and Young Persons (Employment) Act further stipulates that no female under 16 years of age may be employed in hotels, bars, restaurants or clubs unless such establishments are under the management or control of the parents or guardian. The Committee notes that according to section 1A(1) of the Children and Young Persons (Employment) Act, a child means any person who has not completed his/her 14 years of age and a young person refers to any person who, not being a child, has not completed 16 years of age. The Committee observes that section 2(5) of the Children and Young Persons (Employment) Act states that a person aged 16 may perform underground work and that section 28 of the Factory and Machinery Act, 1967, stipulates that a young person (i.e. a person under 16 years of age according to section 3) shall not carry out work involving the management of, or attendance on, or proximity to, any machinery. The Committee recalls that by virtue of Article 3, paragraph (d), of the Convention, work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety and morals of children is considered to be one of the worst forms of child labour and consequently forbidden for children under 18 years of age. The Committee requests the Government to indicate the measures taken or envisaged to ensure that hazardous work is not performed by children under 18 years of age.

Article 4, paragraph 1. Determination of hazardous work. The Committee notes the Government’s indication in its report that the Children and Young Persons (Employment) Act, 1966, stipulates that no child or young person shall be required or permitted to engage in any employment other than those specified in section 2(1). The Committee notes that the Children and Young Persons (Employment) Act, 1966, does not provide for a list of types of work, which by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of children but rather authorizes children to perform certain types of work. This Act enumerates the types of work that a young person may undertake. The Committee observes that a young person may perform a wide range of activities and work in different places, including clubs, bars or underground work. The Committee recalls that by virtue of Article 4, paragraph 1, of the Convention, the types of hazardous 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). In this regard, the Committee draws the Government’s attention to Paragraph 3 of Recommendation No. 190 which provides that in determining the types of such hazardous work, consideration should be given, inter alia, to: (a) work which exposes children to physical, psychological or sexual abuse; (b) work underground, under water, at dangerous heights or in confined spaces; (c) work with dangerous machinery, equipment and tools, or which involves the manual handling or transport of heavy loads; (d) work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; and (e) work under particularly difficult conditions, such as work for long hours or during the night or work where the child is unreasonably confined to the premises of the employer. Noting that a tripartite committee has been set up by the Ministry of Human Resources to review all labour legislation and that it most probably will review in 2004 the Children and Young Persons (Employment) Act, 1966, the Committee hopes that the Government will take due consideration of its comments so as to bring the legislation in line with the Convention.

Paragraph 2. Identification of hazardous work. The Committee notes the absence of information in the Government’s report on efforts made to identify where work exists that, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. The Committee reminds the Government that according to Article 4, paragraph 2, of the Convention, the competent authority, after consultation with the organizations of employers and workers concerned, shall identify where the types of hazardous work exist. The Committee requests the Government to provide information on the measures taken or envisaged to identify where hazardous work exists, in consultation with the organizations of employers and workers concerned.

Paragraph 3. Periodic examination of the list of hazardous work. The Committee notes the Government’s statement in its report that no periodical examination has occurred so far on the types of work which are harmful to the health of the workers. It also notes that the Children and Young Persons (Employment) Act which refers to hazardous occupations dates back to 1966. The Committee therefore recalls that Article 4, paragraph 3, of the Convention provides that the list of types of work determined as hazardous shall be periodically examined and revised as necessary, in consultation with the organizations of employers and workers concerned. The Committee accordingly asks the Government to provide information on the measures taken or envisaged to examine and revise the list of hazardous work, where necessary, in the light of scientific and technical developments.

Article 5. Monitoring mechanisms. The Committee notes the Government’s indication in its report that labour officers from the Department of Labour are empowered to carry out labour inspections to ensure that no children and young persons are exploited. The Government also indicates that the Department of Labour is also empowered to prosecute any violation of the provisions of the Children and Young Persons (Employment) Act, 1966. The Committee also notes that a police officer may investigate, arrest or search violations of the Child Act, 2001, by virtue of sections 109 and 110. The police officer’s powers are wide: he/she may, without a warrant, arrest any person he/she reasonably believes has committed or attempted to commit an offence laid down in this Act; he/she may also, with a warrant, for instance, enter and search premises, inspect, make copies of any books or records, search and remove the child who is in need of protection. The Committee asks the Government to provide information on the inspections carried out by the Labour Inspectorate and the police officers regarding infringements of the national provisions giving effect to the Convention.

Article 6. Programmes of action to eliminate the worst forms of child labour. The Committee notes the Government’s statement in its report that the Ministry of Human Resources works hand in hand with other authorities to design a national plan of action for children. It also indicates that no other programme has been developed so far by the Department of Labour. The Committee asks the Government to indicate whether the national plan of action for children has been established and to provide information on the objectives and scope of it.

Article 7, paragraph 1. Sanctions. The Committee notes that the Child Act, 2001, provides for penalties in case of violations of its provisions. For instance, a person who sells, buys or otherwise obtains possession, procures or detains a child in a brothel or in any other places against the child’s will for the purpose of prostitution or for any unlawful or immoral purpose is liable to a fine not exceeding 50,000 ringgit and/or to imprisonment for a term not exceeding 15 years (section 43). The Act also provides that any person who sells or transfers a child for any valuable consideration shall on conviction be liable to a fine not exceeding 10,000 ringgit and/or to imprisonment for a term not exceeding five years (section 48). The procurement of a child for the purpose of begging or carrying out illegal activities detrimental to the health and welfare of the child shall, on conviction, be liable to a fine not exceeding 5,000 ringgit and/or to imprisonment for a term not exceeding two years (section 32(b)). The Committee also observes that section 125 of the Child Act, 2001, provides that if no penalty is expressly provided for an offence laid down in this Act, the offender shall be liable to a fine not exceeding 5,000 ringgit and/or to imprisonment for a term not exceeding two years. It further notes that the Penal Code provides for penalties in case of violations of the provisions prohibiting forced labour (section 374), buying or disposing of any person as a slave (section 370), kidnapping or abducting a person for the purpose of slavery (section 367), exploiting a person for the purpose of prostitution (section 372), soliciting a person for prostitution (section 372(b)), owning or managing a brothel (section 373). Although the penalties laid down in the Penal Code are not only applicable to violations of the worst forms of child labour, the Committee observes that they can prove to be useful to combat the worst forms of child labour. Noting the absence of reference in the Government’s report to these penalties, the Committee requests it to provide information on their practical application as well as the practical application of the penalties laid down in the Child Act, 2001.

Paragraph 2. Time-bound measures. The Committee takes note of the Government’s indication in its report that Malaysian legislation prohibits and eliminates the worst forms of child labour. It also indicates that promotional programmes are held by the Department of Labour on the importance of education in eliminating child labour, especially amongst employers, and that the Ministry of Education will take the appropriate action to ensure access to free basic education. It further indicates that the Welfare Department is designated to provide necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration. However, the Committee notes that no concrete measures seem to have been adopted up to now. The Committee encourages the Government to adopt effective and time-bound measures to: (a) prevent the engagement of children in the worst forms of child labour; (b) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration; (c) ensure access to free basic education and, wherever possible and appropriate, vocational training for all children removed from the worst forms of child labour; (d) identify and reach out to children at special risk; and (e) take into account the special situation of girls. It requests the Government to provide information on any development in this regard.

Article 8. The Committee notes that Malaysia ratified the United Nations Convention on the Rights of the Child in 1995. It also notes that it is a member of Interpol, which helps cooperation between countries in the different regions, especially in the fight against trafficking of children. The Committee asks the Government to indicate any steps taken to assist other member States in giving effect to provisions of the Convention through enhanced international cooperation and/or assistance, including support for social and economic development, poverty eradication programmes and universal education, in conformity with the requirements of the Convention.

Parts IV and V of the report form. The Committee notes that the Government indicates in its report that it is not aware of any incident regarding the worst forms of child labour as defined under Article 3 of the Convention. It also indicates that inspections and investigations are carried out to ensure compliance of the Children and Young Persons (Employment) Act, 1966, by employers. However, the Committee notes the Government’s statement, under Part V of the report form, that no information is available regarding copies or extracts from official documents, including inspection reports, studies and inquiries, and information on the nature, extent and trends of those forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported and penal sanctions applied. The Committee asks the Government to provide information on the outcome of the inspections and investigations carried out to ensure compliance of the Children and Young Persons (Employment) Act, 1966.

The Committee notes that efforts are under way for the tripartite committee set up by the Government to review all labour legislation to start reviewing the Children and Young Persons (Employment) Act, 1966. The Committee would strongly encourage the Government to ensure that the tripartite committee will, during its review of the 1966 Act, take into consideration the Committee’s detailed comments on discrepancies between national legislation and the Convention. The Committee requests the Government to inform it of any progress made in amending national legislation in its next report and invites it to consider technical assistance from the ILO.