Wan Ramly Wan Seman was until recently, a proud Malaysian army Sergeant. He is not a happy man these days. Understandably so – he was unceremoniously discharged by the Malaysian army and stripped of his pension for refusing to be vaccinated.
Wan Ramly plans to take the armed forces authorities to court, likely in a judicial review (JR) action. It would be interesting to see how the Malaysian courts balance the rights of the community at large against the rights of individuals. Such a case will in all likelihood also feature considerable debate on the extent in which the courts can or ought to interfere in executive actions especially when such actions are rooted in public health policy, which itself is grounded in developing (some say experimental) medical science.
Wan Ramly is not alone. In New Zealand, an employee of the Customs Service filed a JR action in the NZ High Court after her employment was terminated for refusing to be vaccinated. She challenged the rationality, process and enforcement of the Covid-19 Public Health Response (Vaccination) Order 2021. She also argued that the said Order violated her rights and freedoms under the NZ Bill of Rights Act 1990. See: GF v Minister of Covid-19 Response & 2 others [2021] NZGC 2526.
She lost – the High Court upheld the lawfulness of the said Order and her termination, saying inter alia:
“[80]…the means chosen must be rationally connected to the objective in that they logically tend to advance the objective. It is not particularly difficult to satisfy this limb. As noted in the affidavit of Dr Ashley Bloomfield, there is growing scientific evidence and consensus that the Pfizer vaccine is effective in reducing the rate of transmission of COVID-19. There is therefore a logical relationship or rational connection between the limiting measure (the Vaccinations Order) and the objective (to prevent or reduce the risk of COVID-19 spreading.”
The perspicacious judgment written by Justice Churchman in GF v Minister of COVID-19 Response [2021] NZGC 2526 makes for delightful reading. It sets out neatly the legal principles and deductive reasoning common in a JR action. A must read for any practitioner or student of law interested in Administrative Law.
Perhaps a foreshadow of what may become of Wan Ramly’s case should the good soldier brave a court battle with the Malaysian army.
