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

Forced Labour Convention, 1930 (No. 29) - Malaysia (Ratification: 1957)
Protocol of 2014 to the Forced Labour Convention, 1930 - Malaysia (Ratification: 2022)

Articles 1(1) and 2(1) of the Convention. Freedom of career military personnel to leave their service. In its previous comments, the Committee requested the Government to provide information concerning measures taken to ensure that officers have the possibility to leave the service at their own request, before attaining the age of retirement. The Committee noted that, under regulation 51(1) of the Army and Air Force (Terms of Service) Regulations, 1961, the Armed Forces Council shall issue instructions setting out the conditions under which soldiers or airmen may be permitted to purchase their discharge. Noting the Government’s statement that instructions issued by the Armed Forces Council were classified as confidential and therefore could not be communicated, the Committee expressed the hope that the Government would provide information on the conditions under which career soldiers or airmen may be permitted to purchase their discharge.

The Committee notes the Government’s statement that both career soldiers and airmen cannot claim discharge as a statutory right, but may nonetheless apply at any time to the Armed Forces Council to be discharged under regulation 51 of the Army and Air Force (Terms of Service) Regulations, 1961. The Government indicates that all applications for discharge are considered by the Armed Forces Council on a case-by-case basis, taking into account the specific circumstance of each serviceman. Upon the approval of the application for the discharge by the Armed Forces Council, a serviceman will be permitted to purchase his discharge based on the serviceman’s years of engagement and rank. The Government once again indicates that information regarding the procedures governing such an application for discharge, and the rates of purchase, is classified. The Committee also notes the information in the Government’s report that, pursuant to regulation 26 of the Army and Air Force (Terms of Service) Regulations, 1961, career military officers are permitted to apply to resign their commission, except when (i) a Proclamation of Emergency has been issued (pursuant to article 150 of the Federal Constitution or other written laws); or (ii) where the officer has undertaken to complete a specified period of full time service. The Government states that all applications made by career officers are considered by the Armed Forces Council, who will then advise the Head of State (the Yang di-Pertuan Agong) on the matter. The Government states that the cancellations of commissions are subject to the discretion of the Head of State, pursuant to section 9 of the Armed Forces Act 1972.

The Committee observes that, pursuant to regulations 26 and 51(1) of the Army and Air Force (Terms of Service) Regulations, 1961, it appears that the application for discharge by both career soldiers and career military officers may be rejected. In this regard, the Committee recalls that career military servicemen who have voluntarily entered into an engagement should have the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice. The Committee expresses the hope that measures will be taken to ensure that career members of the armed forces will enjoy fully the right to leave their service in peacetime at their own request, within a reasonable period, either at specified intervals, or with previous notice, in conformity with the Convention. The Committee requests the Government to provide available information on the application in practice of regulations 26 and 51 of the Army and Air Force (Terms of Service) Regulations, 1961, particularly the numbers of applications to resign that have been accepted or refused and information on the grounds for refusal by the Armed Forces Council.