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

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 noted that, under regulation 51(1) of the Army and Air Force (Terms of Service) Regulations of 1961, the Armed Forces Council shall issue instructions setting out the conditions under which soldiers or airpersons may be permitted to purchase their discharge. Pursuant to regulation 26 of this Regulation, 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. In this regard, the Government stated that both career soldiers and airpersons cannot claim discharge as a statutory right, but may nonetheless apply at any time to the Armed Forces Council to be discharged under the Regulations of 1961. All applications made by career officers are considered by the Armed Forces Council, who will then advise the Head of State, as cancellations of commissions are subject to the discretion of the Head of State (pursuant to section 9 of the Armed Forces Act of 1972). Applications for discharge are considered on a case-by-case basis, taking into account the specific circumstance of each serviceperson. Upon the approval of the application for the discharge by the Armed Forces Council, a serviceperson will be permitted to purchase his discharge based on their years of engagement and rank.

The Committee notes the Government’s information that the Army and Air Force (Terms of Service) Regulations 1961 were revoked in 2013. Currently, the terms of service, including the retirement and discharge from the Armed Forces, are regulated by the Armed Forces Act of 1972 (Act 77) and the Armed Forces (Terms of Service of Regular Forces) Regulations of 2013 (P.U. (A) 183). Accordingly, within three months from the date of appointment, an officer cadet or a recruit may apply to the competent authority to be discharged. The concerned person may be released upon the consent of the competent authority. Additionally, an officer shall pay a sum not exceeding six months of his/her salary, while a recruit shall pay a sum as prescribed by the competent authority (sections 10(A) and 31 of Act 77 and regulations 61(1)(b) and 41 of the P.U. (A) 183). Moreover, beyond the period of three months after the appointment, an officer cadet may apply for release and will be discharged upon the recommendation of the Armed Forces Council and the permission granted by the Yang di-Pertuan Agong (the King of Malaysia) (regulation 64(b) of the P.U. (A) 183). Additionally, the Yang di-Pertuan Agong may allow a regular commissioned officer, upon his/her application, to retire upon or after having attained the prescribed optional retirement age (section 9 of Act 77 and regulation 42(3) of the P.U. (A) 183). The competent authority may also discharge any serviceperson at any time if particular circumstances so require (regulation 61(s) of the P.U. (A) 183).

The Committee also notes that, to date, there has been one application for discharge from a regular commissioned officer. The Armed Forces Council formed a special committee to review the case and dismissed the application in the best interest of the service. The officer made an appeal which was later accepted. He was consequently discharged on 1 March 2017. The Committee notes with regret that the application for discharge by both career soldiers and career military officers is subject to the approval of the competent authority or the Yang di-Pertuan Agong, and may be rejected. It 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, without being subject to prior permission. The Committee therefore once again requests the Government to take the necessary measures to ensure that career members of the armed forces enjoy the right to leave their service in peacetime at their own request, within a reasonable period, either at specified intervals, or with previous notice. The Committee requests the Government to provide information on the application in practice of relevant provisions under the Armed Force Act of 1972 and the Armed Forces (Terms of Service of Regular Forces) Regulations of 2013, 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.