Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 182) sur les pires formes de travail des enfants, 1999 - Malaisie (Ratification: 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. 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.