Court rejects ex-soldier's bid to challenge termination over COVID-19 vaccination

High Court Judge Datuk Ahmad Kamal Md Shahid dismissed the application for a judicial review by Wan Ramli Wan Seman on grounds that the decision made to discharge the applicant was in accordance with the law and was not tainted with illegality, irrationality or procedural impropriety.

In the judicial review application filed on Sept 27, 2021, Wan Ramli named Lt-Kol Sharull Hesham Md Yasin, Lt Mohamad Azammunir Mohd Ashri, Army Chief General Tan Sri Zamrose Mohd Zain, the Army, and the government, as respondents.

He wanted a declaration that the termination letter, dated Aug 4, 2021 and his early discharge from the service were null and void, and had no effect.

Justice Ahmad Kamal in his judgment said it should be noted that the COVID-19 vaccination order was imposed on all Malaysian army personnel via a letter dated March 3, 2021.

"Based on the vaccination order, the COVID-19 vaccination is mandatory to all Malaysian Army personnel except for those in the group that are not eligible to be vaccinated, such as those who have a history of hospitalisation due to severe allergies and those who experienced severe allergic reactions after receiving the first dose of the vaccine.

"Further, disciplinary action can be taken against those who disobey the order," he said.

The judge said the vaccination order was circulated to all personnel of the 24th at Batallion of the Royal Malay Regiment, Rasah Camp in Seremban, where the applicant was serving.

The judge said the applicant had clearly disobeyed the standing order when he refused to be vaccinated in accordance with the vaccination order.

He said the vaccination order was issued by the Malaysian Army for its personnel.

"It is a matter of policy consideration and the decision which is relevant to the work operation of the Malaysian Army.

"As the impugned decision of the respondents involved policy considerations of which the courts do not possess knowledge of the policy considerations which underlie such decisions, I am of the considered view that this court ought not to review the reasoning of the respondents in making the decision with a view to submitting the court's own opinion on the basis of what is considered to be fair and reasonable on the merits," he added.

Justice Ahmad Kamal said the court also found that the restrictions on movement and employment relating to COVID-19 vaccination have been imposed in several countries.

"The legality and constitutionality of such restrictions have previously been upheld by the courts across other jurisdictions," he added.

The court also found that the issuance of the vaccination order was reasonably balanced with the interests of the individual and the Armed Forces, he said, adding that it was issued to ensure the risk of infection among Malaysian Army members can be reduced and prevent the existence of clusters among members.

"As the applicant had failed to provide any relevant material to exempt himself from being vaccinated, he is thereby obliged to comply with the vaccination order," he said.

On the applicant's claim that he had lost his employment and livelihood due to the dismissal, the judge said restriction or limitation that affects the employment of a person is not a violation of Article 5(1) of the Federal Consitution as the right of employment is not absolute.

"I view that the respondents' decisions as a whole from imposing the policy decision of vaccination order to dismissing the applicant by taking into account the applicant's obedience to the vaccination order were all made in accordance with the law.

"The applicant was not deprived of his life or personal liberty and the decisions were made based on reasonable consideration, that is a measure to curb the COVID-19 pandemic among the Malaysian Army," said the judge when delivering the judgment via online proceedings today.

Justice Ahmad Kamal said the court also found that the vaccination order among the Malaysian Army was mandatory on the basis that the Malaysian Army members live in groups, their role and responsibility as frontliners in carrying out tasks and training, and with a high probability of being easily infected with COVID-19.

"It is appropriate for all Malaysian Army members to take the vaccine to curb contagion among themselves, their families and even the society as a whole.

"The applicant ought to know that his employment is subject to the Armed Forces Act 1972 and it is his responsibility to abide by and obey the orders imposed upon him in accordance with the said law and relevant regulations.

"As a military officer, he is duty bound to follow instructions given to maintain discipline. The military legal system calls for a higher degree of discipline in the armed forces," he added.

Lawyers Yasmeen Soh Sha-Nisse and Phyllia Lim, represented Wan Ramli, while senior federal counsel Ahmad Hanir Hambaly and federal counsel Liyana Muhammad Fuad, acted for the respondents.

In his application, Wan Ramli, 40, said he had a fundamental right not to be vaccinated and claimed that on Aug 3, 2021, he was told that his new discharge was effective from Aug 26, 2021, when his normal discharge should have been on Jan 20, 2023.

The former soldier said his discharge was invalid on grounds that the action by the respondents was disproportionate in all circumstances of the case, oppressive, irrational, unreasonable, amounted to unlawful discrimination, and took into account irrelevant considerations.