The Kuala Lumpur High Court dismissed a former soldier’s judicial review against the army’s dishonourable discharge against him for declining Covid-19 vaccination.
Judge Ahmad Kamal Md Shahid this morning denied the legal action by Wan Ramli Wan Seman, who used to be attached to the Royal Army Regiment’s 24th battalion in Rasah Camp, Negeri Sembilan.
Wan Ramli’s legal challenge is against his dishonourable discharge on Aug 26 2021, which is much earlier than his normal rate of discharge on Jan 20, this year.
During online proceedings this morning, Kamal ruled that the army’s decision was in accordance with the law as there is a policy for Malaysia’s military to abide by mandatory Covid-19 vaccination.
He pointed out that the vaccination order is to ensure the reduction and prevention of infection among members of the armed forces, who tend to stay in close-knit groups for training and thus lead to an increased risk of an outbreak.
Kamal noted that all members of the armed forces are obliged to abide by the mandatory vaccination order except if they could prove exceptional circumstances such as extreme allergic reaction to the vaccine.
“The mandatory vaccination in the army is because their members live in groups and have the responsibility as frontliners in carrying out tasks and training, and faces high risk of easy infection by Covid-19.
“It is appropriate for the Malaysian army to take vaccines to curb the contagion among themselves, their families, and society as a whole.
“The applicant (Wan Ramli) ought to know that as an army (member then), it is his responsibility to obey the orders imposed on him in accordance with regulations.
“As an officer on duty (before discharge), he has the duty to obey as the army calls for higher discipline (among active members),” Kamal said.
He then dismissed the judicial review with no order as to costs.
‘Constitutional right’ not to be jabbed
When contacted by Malaysiakini after proceedings, the applicant’s counsel Yasmeen Soh Sha-Nisse said they would file an appeal to the Court of Appeal against today’s verdict.
Senior federal counsel Ahmad Hanir Hambaly @ Arwi represented the five respondents, namely the Armed Forces of Malaysia and its chief Zamrose Mohd Zain, Lieutenant-Colonel Sharull Hesham Md Yasin, Lieutenant Mohamad Azammunir Mohd Ashri, and the government.
Sharull is the commanding officer of Rasah Camp while Azammunir was allegedly the officer who signed Wan Ramli’s letter of discharge. Both of them were contended to be under the supervision, control, direction, and law as well as policy administration of the remaining three respondents.
On Oct 28, 2021, the court granted leave to the former soldier to commence with the judicial review, with a hearing of the legal action’s merits done on Jan 6 last year.
Wan Ramli filed the legal action on Sept 27, 2021, seeking a declaration that the letter of discharge dated Aug 4 that year and his early discharge as null, void, and of no effect.
The 41-year-old was also seeking a direction of the nature of a writ of certiorari to quash the letter of discharge, costs and any other relief deemed fit by the court.
According to the cause papers, Wan Ramli claimed that on July 3 2021, he received instructions from the (army) company clerk at Camp Rasah’s clinic to take the Covid-19 vaccine. However, he exercised his constitutional right not to be vaccinated.
The then soldier claimed that he was then subjected to multiple rounds of interrogation on July 5, 6, and 9 that year, where he was allegedly “put under tremendous pressure and was scolded by some of the officers for refusing to be vaccinated”.
Wan Ramli claimed that on July 10 that year, he was tried by Sharull and charged under four provisions of the Armed Forces Act 1972, namely for disobeying orders to be vaccinated, using threatening or insubordinate language to a superior officer, disobedience to a standing order, and conduct to the prejudice of good order and discipline.
He claimed that Sharull denied his request to be court-martialed, which he contended amounted to a serious violation of the rules of natural justice and allegedly deprived him of his livelihood, which is safeguarded under Article 5(1) of the Federal Constitution.
Wan Ramli contended that he merely said, “I am still not agreeing to be vaccinated”, which he claimed does not amount to threatening or insubordinate language and that he has a fundamental right to refuse vaccination.
The former sergeant claimed that on Aug 3, 2021, he was told that his new discharge was effective from Aug 26 that year, which is much earlier than his normal rate of discharge on Jan 20 this year.
He contended that the discharge was invalid because, among other reasons, the respondents’ action is disproportionate in all circumstances of the case, amounted to unlawful discrimination, oppressive, irrational and/or unreasonable, and took into account irrelevant considerations.
Wan Ramli also claimed that he lost his right to a pension due to the dishonorable discharge from service, and further contended that the deprivation of his livelihood amounted to a deprivation of the constitutional right to property. -- Mkini
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