Former soldier loses legal challenge over Covid-19 vaccine refusal

KUALA LUMPUR: A former soldier has failed in his bid at the High Court here to challenge his dishonourable discharge from the service after he refused Covid-19 vaccination.

In his decision here on Thursday (Jan 12), Justice Ahmad Kamal Md Shahid dismissed the application for judicial review filed by Wan Ramli Wan Seman, 41, on grounds that the decision made to discharge the applicant "was not tainted with illegality, irrationality or procedural impropriety".

Wan Ramli, who held the rank of sergeant, was seeking a court declaration that a discharge letter he received dated Aug 4, 2021, and his discharge were null, void and had no effect.

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He contended that he had the freedom of choice under Article 5(1) of the Federal Constitution to refuse the vaccination and therefore it was disproportionate for the respondents to discharge him and deprive him of his pension due to his refusal.

However, the court was of the opinion that the applicant had clearly disobeyed a standing order on vaccination which was imposed on all Malaysian army personnel via a letter dated March 3, 2021, by his refusal.

"Further, I find that the issuance of the vaccination order was reasonably balanced with the interest of the individual and the Armed Forces.

"The vaccination order was issued to ensure the risk of infection among Malaysian army members can be reduced and to prevent the existence of clusters among members.

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

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Due to his dismissal, Wan Ramli said he lost his employment and livelihood, a guaranteed fundamental right under the Federal Constitution.

"However, I am of the view that restrictions or limitations which affect employment of a person are not a violation of Article 5(1) of the Federal Court as right to employment is not absolute," Justice Ahmad Kamal said.

He further said that the applicant ought to know that his employment was subject to the Armed Forces Act 1972 and the regulations made therein.

"As a member of the Malaysian army, it is his responsibility to abide by and obey the orders imposed upon him in accordance with the said Act and the relevant regulations. As a military officer, he is duty-bound to follow instructions given to maintain discipline.

"All in all, I find that the the decisions made by the respondents against the applicant were in accordance with the law and are not tainted with illegality, irrationality or procedural impropriety," he said in his dismissal.

The court did not make any order as to costs.

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Senior Federal Counsel Ahmad Hanir Hambaly and Federal Counsel Liyana Muhammad Fuad appeared for the respondents while lawyers Yasmeen Soh Sha-Nisse and Phyllia Lim represented the applicant.

Wan Ramli filed his application for leave for judicial review at the High Court on Sept 27, 2021.

He named Lt Col Sharull Hesham Md Yasin, Lt Mohamad Azammunir Mohd Ashri, Army Chief General Tan Sri Zamrose Mohd Zain, the Army, and the government, as respondents.

On Oct 28, 2021, the High Court granted him leave to initiate a judicial review to challenge his dismissal after the respondents did not object to the leave application.

Wan Ramli 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 that year when his normal discharge should have been on Jan 20, 2023.

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