Teachers, UM staff fail court challenge against compulsory Covid-19 vaccination

KUALA LUMPUR, Dec 14 — The High Court in Shah Alam today rejected two similar court challenges by five local school teachers and 19 Universiti Malaya (UM) staff against an October 2021 government circular that made it compulsory for them to undergo vaccination against the Covid-19 virus.

Senior federal counsel Liew Horng Bin told Malay Mail when contacted that High Court judge Shahnaz Sulaiman had dismissed the two judicial review applications with no order as to costs.

Liew said the High Court found the Public Service Department's October 18, 2021 service circular on the compulsory Covid-19 vaccination – except for medical reasons – did not go against the rights of the teachers and UM staff under the Federal Constitution.

“The service circular did not impinge upon any constitutional rights of the Applicants. As public servants, they are bound to comply with the Service Circular which is legal and serving a legitimate, public health purpose,” the government lawyer told Malay Mail in summing up the High Court's decision.

In the Public Service Department's (PSD) October 18, 2021 circular titled Service Circular No 4/ 2021 on the Covid-19 Immunisation Implementation Policy for Federal Public Service Officers, it explained that the government had implemented the national Covid-19 immunisation programme since February 2021 and that the government had decided that all federal public officers are to complete their Covid-19 vaccination as part of efforts to ensure smooth delivery of public services to Malaysians.

Among other things, the 2021 service circular announced the new policy for public officers to obtain complete Covid-19 vaccine doses to ensure a safe work environment and optimal levels of productivity and public service delivery.

The 2021 service circular had stated that department heads could from November 1, 2021 onwards order public officers to obtain complete Covid-19 vaccination by showing their digital vaccination certificate, and that any public officer who disobeys the department head's order could face disciplinary action or have their service terminated.

Those who could not undergo Covid-19 vaccination due to medical reasons could be ordered to undergo health inspections with registered medical practitioners to certify that they were “medically ineligible” for the Covid-19 immunisation, while those who were found by registered medical practitioners to be eligible could be ordered to undergo complete Covid-19 vaccination, the circular had also stated.

The circular said disciplinary action or termination of service could be taken on those who disobey their department heads' orders on such matters.

The five teachers from five different schools in Terengganu, Kelantan, Melaka and Selangor jointly filed their court challenge on October 27, 2021 at the High Court in Shah Alam through a judicial review application against six respondents, namely the education minister, the education director-general, the Public Service Department's (PSD) director-general, the health minister, the health director-general and the federal government.

They sought nine main court orders.

Among the orders were to quash a decision to implement Covid-19 vaccination for public servants under the federal government as per the 2021 circular; and a declaration that they and other public servants have the freedom to choose whether or not to undergo Covid-19 vaccination.

The teachers also wanted the court to declare that being forced or being ordered to undergo Covid-19 vaccination would go against Articles 5, 8 and 9 of the Federal Constitution, and that no disciplinary action would be taken against them if they weren’t vaccinated.

Article 5(1) states that no person shall be deprived of their life or personal liberty unless it is in accordance with law.

Article 8(1) states that all persons are equal before the law and entitled to equal protection of the law.

Article 9 relates to the right to freedom of movement within Malaysia subject to certain laws.

Another thing they wanted was for the court to declare that the “informed consent” form before Covid-19 vaccinations would automatically be deemed invalid and cannot be used by the respondents to avoid any liabilities if the teachers were forced to undergo immunisation.

The teachers also wanted the court to suspend the October 18, 2021 government circular on Covid-19 vaccination for federal public servants, until studies on Covid-19 vaccines are completed and verified by the World Health Organisation.

They wanted the court to compel the respondents to announce, through the media, eight items: Covid-19 vaccination side effects in Malaysia; when clinical trials on Covid-19 vaccination in Malaysia would be completed; the number of Covid-19 vaccination doses considered to be complete; and data on Covid-19 infection rates in schools where there is 100 per cent Covid-19 vaccination.

The other items which the teachers wanted the respondents to be compelled to announce through the media are that public servants including themselves are not discriminated against at the workplace — such as not being allowed to teach face-to-face at work — because they chose not to undergo or have not completed Covid-19 vaccination.

On October 29, 2021, 19 UM staff members separately filed a similar judicial review application seeking nine main court orders and named the UM registrar, the PSD director-general, the health minister and the government of Malaysia as respondents.

Apart from wanting the court to quash the government's decision for Covid-19 vaccination for public servants and to be given the freedom to choose whether to be involved in such vaccination, the UM staff wanted an order that being forced or ordered to undergo Covid-19 vaccination would go against the same Articles 5, 8 and 9.

The 19 UM staff also wanted the court to declare that they and other UM employees cannot be forced to undergo Covid-19 vaccination, claiming that it would violate Article 5.

The UM staff had also wanted the health minister to make an announcement regarding four items, namely when clinical trials on all types of Covid-19 vaccination in Malaysia would be completed; that Covid-19 vaccination is an individual choice; the number of Covid-19 vaccine doses considered to be complete; and for all possible side-effects to be notified in the informed consent form, through the media and through social media.

Liew and federal counsel Siti Norashikin Hassanor from the Attorney General's Chambers represented all the respondents in both court cases, except for the UM registrar which was represented by the law firm Raja, Darryl and Loh.

In both cases, the five teachers and the 19 UM staff were represented by the same law firm, namely Amin Chambers.