Observación (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Malasia (Ratificación : 2000)

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.