Demande directe (CEACR) - adoptée 1990, publiée 77ème session CIT (1990)

In several previous direct requests, the Committee asked the Government to supply details regarding the criteria applied in accepting or rejecting a resignation submitted by a person wishing to resign from the army in accordance with the requirements under Law No. 32 of 1967. Sections 98 and 99 of the Law provide that the service of an officer (or an under-officer or a simple soldier) is terminated, inter alia, if the resignation is accepted. Section 104 stipulates that to be valid a resignation must be in writing and without condition. Section 104 further indicates that the service of the person resigning is terminated only by the decision to accept the resignation and that a resignation from the army may not be presented during wartime, a period of martial law or force majeure. Section 105 provides the same while the person seeking resignation is being investigated or prosecuted before a military tribunal until a definitive sentence is pronounced by the tribunal. It is the obligation of the person seeking to resign to continue service in the armed forces until the resignation is accepted, that is the service is not automatically terminated upon delivery of a resignation which otherwise complies with the requirements of sections 104 and 105. Neither section 104 nor 105 establishes the criterion used for deciding whether a resignation presented in compliance with the conditions laid down in these provisions will or will not be accepted.

The Government indicates in its most recent report that the armed forces are divided into two categories: one composed of persons serving compulsory military service to which the provisions of the Convention do not apply, the other composed of volunteers who are admitted into the army. As regards the second category, the Government indicates that persons volunteer for service of their own free will and that the army obliges no one to volunteer for service; on the contrary, from those persons who volunteer the army chooses, according to its established standards, those who are inducted. Accordingly, inductees are fully aware of legislative provisions governing their service. Thus, in the Government's opinion, as a practical matter forced labour is all the more likely not to exist.

As concerns the question of resignation and the absence in law of criteria which would permit a request for resignation to be considered accepted at the expiration of a fixed period of time, the Government makes the following points. First, the absence in Kuwaiti law of a fixed time period at the end of which a resignation is considered accepted or refused is not unique to this country's armed forces; for the most part, in the Government's opinion, armed forces throughout the world apply this system, consistent with rules of military control, dependence, discipline and precision. Second, section 104 stipulates that a resignation must be made in writing and without condition; these requirements are imposed so that a resignation is presented only after due reflection and as a result of free choice, in conformity with section 98, paragraph 4 and section 99, paragraph 4 of Law No. 32 of 1967. The resignation will be refused for the reasons given in section 105 as well as in cases provided for under Article 2, paragraph 2 of the Convention. Third, the Government indicates that in practice all requests for resignation which conform to the formalities fixed in law are accepted and only those which fall within the exceptions established by law or "greater national interest" are refused.

The Committee takes due note of the Government's indications. The Committee also notes that, although requested, no specific details regarding the number of cases in which resignations from the armed forces were not accepted otherwise than during time of war or pending the person's legal prosecution have been provided, that is, statistical data with respect to the number of resignations conforming to formal requirements received, the number granted and the number refused, including the reasons for refusal. The Committee must reiterate that while the right of an individual to terminate employment may be limited by a government during periods of emergency within the meaning of Article 2, paragraph 2(d), of the Convention, in other circumstances, the effect of statutory provisions preventing termination of employment by giving notice of reasonable length is to turn a contractual relationship based on the will of the parties into service by compulsion of law, and is thus incompatible with the Convention. While this principle does not apply to provisions relating to compulsory military service, they do apply to career military service; and neither statutory provisions nor administrative practice may be invoked to deprive persons who have voluntarily entered into an engagement of the right to leave the service in peacetime within a reasonable period, either at specified intervals, or with previous notice, subject to the conditions which may normally be required to ensure the continuity of the service. Accordingly, the Committee again requests the Government to indicate the details and number of cases in which resignations presented in conformity with sections 104 and 105 of Law No. 32 of 1967 were turned down. Additionally, the Committee asks the Government to provide information concerning the interpretation given in practice to "greater national interest" as a reason for refusing a resignation request.