Solicitud directa (CEACR) - Adopción: 2015, Publicación: 105ª reunión CIT (2016)

Convenio sobre las peores formas de trabajo infantil, 1999 (núm. 182) - Myanmar (Ratificación : 2013)

The Committee notes the Government’s first report.

Article 3 of the Convention. Worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Sale and trafficking of children. The Committee notes that the Anti-Trafficking in Persons Law of 2005 (Anti-Trafficking Law), under section 4, aims to prevent and suppress trafficking in persons, with particular attention to children and youth. According to section 24 of this Law, persons guilty of trafficking in children and youth shall be punished with imprisonment for a period from ten years to life imprisonment and a fine. “Trafficking of persons”, as defined under section 3 of the Anti-Trafficking Law includes recruiting, transporting, selling, transferring, harbouring, purchasing, lending, hiring or receiving another person for the purpose of exploitation and the term “exploitation” includes all forms of sexual exploitation, forced labour or services, and slavery, servitude or debt bondage. A “child” as defined under section 3 means a person who has not attained the age of 16 years and “youth” means a person who has attained the age of 16 years and has not attained the age of 18 years. The Committee requests the Government to provide information on the application of the Anti-Trafficking Law in practice, including, for example, statistics on the number and nature of offences reported, investigations, prosecutions, convictions and penal sanctions imposed with regard to the trafficking of persons under 18 years.

2. Slavery, debt bondage, forced or compulsory labour. The Committee notes that articles 358 and 359 of the Constitution prohibit slavery and forced labour respectively. It also notes that, according to sections 370–371 of the Penal Code, importing, exporting, buying, selling, disposing, or receiving any person against his will as a slave and habitual dealing in slaves are offences punishable by imprisonment for up to ten years and a fine. Moreover, unlawfully compelling another person to labour against his will is an offence under section 374 of the Penal Code. The Government report also refers to section 27A of the Ward or Village Tract Law of 2012 according to which an offence related to forced labour is a crime punishable by imprisonment and fines.

3. Compulsory recruitment of children for use in armed conflict. The Committee notes that the 1959 Defence Services Act (amended in 1974) and War Office Council Directive 13/73 of 1974 prohibit persons under the age of 18 from joining the armed forces. According to the Burma Territorial Force Act (section 9) and the Burma Auxiliary Force Act (section 7), every enrolled person who has attained the age of 18 years shall be liable to perform military service.

The Committee notes that the Committee on the Application of Standards, in its discussion on Myanmar in a special sitting during the 101st Session of the Conference in June 2012 concerning the application by Myanmar of the Forced Labour Convention, 1930 (No. 29), observed that many important steps had been taken by the Government towards complying with the 1998 recommendations of the Commission of Inquiry. In this regard it noted, in particular, the orders issued by the Commander-in-Chief of the Defence Services during March–April 2012 advising all military personnel that strict and stern military disciplinary actions shall be taken against perpetrators of military under-age recruitment, and making the new law prohibiting forced labour applicable to the military with perpetrators being prosecuted under section 374 of the Penal Code. The Committee also notes the Government’s indication, in its report of August 2015 submitted under Convention No. 29, that a total of 319 officers and officials of other ranks from the military have been punished in relation to under-age recruitment and forced labour cases.

The Committee notes, however, that according to the Report of the Secretary-General on Children and Armed Conflict to the United Nations Security Council of 5 June 2015 (A/69/926 S/2015/409) (Report of the Secretary-General on children and armed conflict), a total of 357 cases of child recruitment and use by armed forces (Tatmadaw) were reported, including through the forced labour complaint mechanism of the ILO. At least 27 of the children as young as 14 years old were newly recruited in 2014. Children were reported to have been deployed to the front line as combatants and in support roles. In addition to children being recruited into the formal ranks of Tatmadaw, several incidences of the informal association of children were recorded, including as porters and scouts. This report further indicates that children were also recruited by armed groups, including through abductions. Moreover, the Report of the Secretary-General on children and armed conflict states that several positive steps have been taken by the Government, including the joint action plan signed with the United Nations in June 2012 to end and prevent the recruitment and use of children by armed forces, the endorsement of a workplan for full implementation of this action plan, and the granting of monitoring access of the United Nations to the armed forces. However, according to the Report of the Special Rapporteur on the situation of human rights in Myanmar of 23 March 2015, there are still reports of ongoing recruitment of children into the armed forces due to a quota-based recruitment system that reportedly continues in the military. The Committee requests the Government to strengthen its efforts to put a stop, in practice, to the recruitment of children under 18 years by the armed forces and armed groups. It also requests the Government to take immediate and effective measures to ensure that thorough investigations and robust prosecutions of any person, including members in the armed forces, who forcibly recruit children under 18 years of age for use in armed conflict, are carried out and that sufficiently effective and dissuasive penalties are imposed. The Committee requests the Government to provide information on the measures taken and results achieved in this respect.

Clause (b). Use, procuring or offering of a child for prostitution, pornography or pornographic performances. The Committee notes that according to sections 372 and 373 of the Penal Code, whoever sells, buys, hires or lets to hire, or otherwise disposes or obtains possession of any person under the age of 18 years with intent that such persons shall be employed or used for the purpose of prostitution or for any unlawful or immoral purposes shall be punished with imprisonment for up to ten years and to a fine. Section 366A of the Penal Code further states that any person who induces any minor girls under the age of 18 years to go to any place or do any act with intent that she will be forced or seduced to illicit intercourse with another person shall be punished with imprisonment for not more than ten years and to a fine.

The Committee further notes that according to the explanation provided under section 3(a) and (b) of the Anti-Trafficking Law, prostitution means any act, use, consummation or scheme involving the use of a person by another for sexual intercourse or lascivious conduct in exchange for money, benefit or any other consideration.

With regard to child pornography, the Committee notes that section 66(f) of the Child Law provides that using a child (defined as a person under 16 years of age (section 2)) in pornographic cinema, video or television photography is an offence punishable with imprisonment for a term not exceeding two years or a fine. The Committee draws the Government’s attention to Article 3(b), read with Article 2, of the Convention which requires, among other things, the prohibition of using, procuring or offering of a child under 18 years of age for the production of pornography or for pornographic performances. It also notes that according to section 27 of the Anti-Trafficking Law, any person who is guilty of making use or arranging a victim of trafficking for the purpose of pornography shall be punished with imprisonment for a period of five to ten years and to a fine. The Committee, therefore, requests the Government to take the necessary measures to ensure that the prohibition on the use of children for pornographic activities covers all children under 18 years of age, so as to be in conformity with the provision of the Convention. The Committee also requests the Government to provide information on the practical application of sections 372 and 373 of the Penal Code, section 66(f) of the Child Law and of section 27 of the Anti-Trafficking Law, including statistics on the number of offences concerning children under 18 years of age reported, investigations held, prosecutions and penal sanctions applied.

Clause (c). Use, procuring or offering a child for illicit activities, in particular for the production and trafficking of drugs. The Committee notes that section 22(c) of the Narcotic Drugs and Psychotropic Substances Law of 1993 makes it an offence to use children under the age of 16 years in acts related to the production, distribution, transportation, importation and exportation of a narcotic drug or psychotropic substance. It also notes that section 66(c) of the Child Law provides for penalties for employing a child under 16 years of age for begging. The Committee draws the Government’s attention to Article 3(c), read with Article 2 of the Convention, which requires the prohibition of using, procuring or offering a child under 18 years of age for illicit activities, including for the production and trafficking of drugs and begging. The Committee, therefore, requests the Government to take the necessary measures to ensure that the prohibition on the use of children for illicit activities, such as the production and trafficking of drugs or for begging covers all children under 18 years of age, so as to be in conformity with the provisions of this Convention.

Clause (d) and Article 4(1). Hazardous work and determination of hazardous work. The Committee notes that Rule No. 90 of the Mines Law, 1994, prohibits the employment of children under the age of 18 years in any mine. It also notes that according to section 65(a) of the Child Law, employing or permitting a child to perform work which is hazardous or harmful to the child’s health and morals is prohibited. However, the Committee notes that this prohibition only applies to children under 16 years of age (section 2(a)).

The Committee further notes the Government’s indication that section 75 of the draft Law amending the 1951 Factories Act prohibits the employment of children in work which can harm their safety, health or morals. According to section 2(a) and (b) of this draft Law, a “child” means a person who has completed his/her 14th year but has not completed his/her 16th year. Moreover, the Committee notes the Government’s information that the draft Shops and Establishment Law, which will be adopted soon, contains a provision prohibiting the employment of children under 18 years of age in hazardous work or work places. The Committee expresses the firm hope that the Government will take the necessary measures, without delay, to adopt the draft Shops and Establishment Law which contains a prohibition on the employment of children under 18 years of age in hazardous work. It requests the Government to develop and ensure the adoption of a list determining the types of hazardous work prohibited for persons under 18 years of age, in consultation with the organization of employers and workers concerned.

Article 5. Monitoring mechanisms. 1. Combating trafficking in children. The Committee notes that the Government, in its report of August 2015 to the Human Rights Council Working Group on the Universal Periodic Review (Government’s report to the Human Rights Council), indicates that pursuant to section 5 of the Anti-Trafficking in Persons Law, a Central Body for Suppression of Trafficking in Persons (CBTIP) was established with three working groups functioning under it, namely: (i) the working group on prevention of trafficking in persons and protection of trafficking victims; (ii) the working group on legal framework and prosecution measures; and (iii) the working group on repatriation, reintegration and rehabilitation of victims of trafficking (A/HRC/WG.6/23/MMR/1, paragraph 92). The Committee also notes from the Final Report Phase III of the United Nations Inter-Agency Project on Human Trafficking of July 2014 (UNIAP report) that an Anti-Trafficking in Persons Division was created in 2013 under the CBTIP. In addition, with the support from UNIAP, a Border Cooperation on Anti-Trafficking in Persons mechanism with Thailand and Border Liaison Offices with China have been established to support coordination in cases of cross-border trafficking. The Committee requests the Government to provide information on the activities undertaken by the three working groups on trafficking in persons and the Anti-Trafficking in Persons Division, under the CBTIP, to combat the trafficking of children under 18 years of age, as well as information on the number of cases of trafficking of children that have been identified and dealt with by them. It also requests the Government to provide information on the impact in combating the cross-border trafficking of children following the establishment of the Border Cooperation on Anti-Trafficking in Persons mechanism with Thailand and the Border Liaison Offices with China.

2. Labour inspectorate. The Committee notes from the Government’s report, that the Factories and General Labour Laws Inspection Department (FGLLID) as well as the inspectors appointed under the Myanmar Mines Law are responsible for conducting nationwide inspection services including the monitoring of child labour. The Government also indicates that regular inspections are carried out by the labour inspectors, during which any complaints or reports on the use of child labour will be verified. The Committee notes the Government’s information that the Ministry of Livestock, Fisheries and Rural Development issued a Ministerial Notification 4/2015 (355) and (356) on 15 January 2015, to employers and region and state fisheries departments to comply with the provisions of Convention No. 182.

However, the Committee notes that the Committee on the Rights of the Child (CRC), in its concluding observations of 2012, expressed concern at: the persistence of the economic exploitation of children, including low wages; working the same hours as adults and being engaged in dangerous and hazardous forms of work; and the lack of enforcement of the labour laws as well as the absence of systematic labour inspections (CRC/C/MMR/CO/3-4, paragraph 85). The Committee requests the Government to take the necessary measures to improve the functioning of the labour inspection system, including by strengthening the capacity of the labour inspectorate so as to ensure the effective monitoring of the provisions giving effect to the Convention. It also requests the Government to provide information on the impact of the Ministerial Notification 4/2015 in eliminating the worst forms of child labour in the fisheries sector.

Article 6. Programmes of action. 1. Trafficking. The Committee notes that according to the UNIAP report, the second five-year National Plan of Action (NPA) to Combat Human Trafficking 2012–16 was adopted by the Government. The Committee requests the Government to provide information on the concrete measures taken within the framework of the second five-year NPA to combat the trafficking of children and the results achieved.

2. Action plan to stop the recruitment and use of children in armed conflict. The Committee notes that the Government of Myanmar and the United Nations signed in June 2012 an action plan to end and prevent the recruitment and use of children by the armed forces of Myanmar. The Government’s report indicates that following this joint action plan, 36 monitoring visits to various state and regional military headquarters were conducted; 645 children who were involved in armed conflict were handed over to their parents during 2012–15; nation-wide awareness-raising campaigns on the issue of child recruitment were carried out; and actions were taken against military officers and other rank officials who carried out under-age recruitment. However, the Report of the Special Representative of the Secretary General for Children and Armed Conflict of 20 July 2015 states that, despite the progress, children continue to be found in the Tatmadaw’s ranks and are sometimes deployed at the front line (A/70/162, paragraph 30). The Committee requests the Government to strengthen its efforts to effectively implement the joint action plan in order to prevent the recruitment of children under 18 years by the armed forces. It requests the Government to continue providing information on the measures taken in this regard and on the results achieved. It further requests the Government to provide information on actions taken against armed groups to stop the recruitment and use of children under 18 years of age in armed conflict.

3. Myanmar Programme on the Elimination of Child Labour 2014–17 (My PEC). The Committee notes that the Government, in collaboration with the ILO, adopted the Myanmar Programme on the Elimination of Child Labour 2014–17 (My-PEC) with the aim of developing a comprehensive, inclusive and efficient multi-stakeholder response to reduce child labour in Myanmar. According to the information contained in the Government’s report within the frame work of My-PEC, a Technical Working Group on Child Labour (TWG–CL) to assist in the eradication of child labour was set up. In this regard, national level activities to raise public awareness and training activities on child labour and occupational safety and health were conducted for workers’ and employers’ organizations, labour inspectors and civil society organizations. In 2014, 34,767 employers and workers received such training and from January to June 2015, 16,525 employers and workers received training. The Committee requests the Government to continue to provide information on the activities carried out within the framework of My-PEC for the elimination of child labour and its worst forms, as well as on the results achieved.

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. The Committee notes that according to the information from UNICEF, efforts are being made by the Government to strengthen the education sector in Myanmar. Compared to 2012, public spending in education in 2014 has increased by 49 per cent. The Committee also notes from the Government’s report to the Human Rights Council that since 2011–12, the Government has been implementing the Free and Universal Primary Education Programme by providing free text books, exercise books, stationery and school uniforms to primary and secondary students. In addition, a scholarship programme for students in need was introduced within which a total of 16,022 students received scholarships during the 2014–15 academic years. It also notes that the Government, in collaboration with civil society organizations, has set up mobile schools for rural children and for migrant children. During 2013–14 academic years, 12 mobile schools were introduced for 416 students (A/HRC/WG.6/23/MMR/1, paragraphs 43–49).

Moreover, according to the information contained in the UNESCO Country Programming Document of 2013–15, the Government introduced the National Strategic Plan for the Advancement of Women 2012–21 which aims to improve the realization of the rights of women and girls and reduce persistent gender gaps. The draft gender situation analysis which is currently being developed shows that gender parity in primary school enrolment has been achieved. The UNESCO report, however, states that the inclusion of children from poor households, rural communities and ethno-linguistic groups poses a particular challenge and that there is still a disparity in access to, and the duration of, quality education opportunities for children and different population groups. Considering that education contributes to preventing children from engaging in the worst forms of child labour, the Committee encourages the Government to strengthen its efforts to improve access to free basic education for all children, including children from poor households, rural communities and ethno-linguistic groups. It requests the Government to provide information on the measures taken in this regard. The Committee also requests the Government to provide up-to-date statistics on the school enrolment, attendance and completion rates as well as drop-out rates at primary and secondary levels.

Clause (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. Children in armed conflict. The Committee notes the Government’s indication that a total of 645 children who were recruited by Tatmadaw were released from 2012 to 2015. According to the information contained in the report of the Secretary-General on children and armed conflict, a total of 389 boys who were released from Tatmadaw received reintegration assistance from the United Nations in collaboration with the Department of Social Welfare. This report further indicates that detention of children as “deserters” remained a matter of concern. Of the 53 documented cases of children who escaped from Tatmadaw, 13 were arrested on charges of desertion, and more such cases were reported towards the end of 2014. In this regard, the Committee must emphasize that children under the age of 18 years associated with armed groups should be treated as victims rather than offenders (see the 2012 General Survey on the fundamental Conventions, paragraph 502). The Committee, therefore, requests the Government to take the necessary measures to ensure that children removed from armed forces and armed groups are treated as victims rather than offenders or deserters. It also requests the Government to take effective and time-bound measures to remove children from armed forces and armed groups and ensure their rehabilitation and social integration. It asks the Government to provide information on the measures taken in this regard and on the number of children removed from armed forces and armed groups and reintegrated.

Application of the Convention in practice. The Government report indicates that it is currently undergoing a revision of the existing labour laws, including the Factories Act, the Shops and Establishments Act as well as promulgating an Occupational Safety and Health Bill. The Government report also indicates that relevant surveys on child labour will be conducted by the FGLLID, in collaboration with the ILO. The Committee requests the Government to take the necessary measures to ensure the availability of up-to-date statistical information on the worst forms of child labour in the country, including 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 penal sanctions applied. To the extent possible, all information should be disaggregated by sex and age. The Committee finally requests the Government to provide information on any progress made with regard to the revision of the existing labour legislation.