Kok Kooi Ngoh v Menteri, Kementerian Pendidikan Malaysia (BA-25-76-10/2021)

KOK KOOI NGOH

LEE PEI YING

AZIZAH BINTI ALI

SITI MARDIHA BINTI SHAHARI

NOORHAFIZZAH BINTI MANSOR (NO. K/P: 800304-09-5092) …PEMOHON-PEMOHON

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KERAJAAN MALAYSIA …RESPONDEN-RESPONDEN JUDGMENT [1] This is an application for judicial review pursuant to Order 53 of the Rules of Court 2012 by the applicants essentially seeking to challenge:

the Service Circular No. 4 of 2021 dated 18.10.2021 (“the impugned Service Circular”); and

(ii) measures introduced by para 2.2.1 of the Guideline on School Management and Operation Version 3.0 dated 24.9.2021 (“the impugned Guideline”). Collectively referred to as the impugned Decisions. Reliefs Sought [2] The reliefs sought by the applicants in this application for judicial review are reproduced below: “(i) Kebenaran diberi kepada pemohon-pemohon untuk suatu perintah certiorari atas keputusan untuk Perlaksanaan Program Imunisasi Covid-19 bagi Pegawai Perkhidmatan Awam Persekutuan seperti yang dipaparkan dalam Surat Pekeliling responden ketiga Pekeliling Perkhidmatan Bilangan 4 Tahun 2021 Dasar Perlaksanaan Imunisasi Covid-19 bagi Pegawai Perkhidmatan Awam Persekutuan bertarikh 18 Oktober 2021.

Kebenaran diberi kepada pemohon-pemohon untuk usatu perintah certiorari untuk membatalkan Peruntukan nombor 2 di dalam Garis Panduan Pengurusan dan Pengoperasian Sekolah 3.0 yang telah dikeluarkan oleh responden pertama dan responden kedua yang telah dikeluarkan pada 9 Februari 2021.

(iii) Satu deklarasi bahawa pemohon-pemohon di atas dan individu-individu yang merupakan penjawat awam dalam tafsiran responden ketiga diberi kebebasan untuk memilih untuk tidak melibatkan diri secara langsung atau tidak langsung di dalam Dasar Perlaksanaan Imunisasi Covid- 19 dan/atau memasukkan ke dalam tubuh badan mereka suntikan vaksin Covid-19 sepertimana yang dipaparkan dalam Surat Pekeliling Pekeliling responden ketiga Pekeliling Perkhidmatan Bilangan 4 Tahun 2021.

(iv) Satu deklarasi bahawa boring kebenaran pra suntikan vaksinasi Covid-19 “informed consent” akan terbatal secara automatic dan tidak boleh digunapakai untuk responden-responden melarikan diri daripada menanggung semua liability-liabiliti terhadap pemohon-pemohon dan penjawat awam-penjawat awam tersebut dipaksa vaksin Covid-19 oleh Ketua Jabatan masing-masing dan dipaksa vaksin Covid-19 secara langsung dan secara tidak langsung disebabkan oleh pengeluaran surat Pekeliling Perkhidmatan Bilangan 4 Tahun 2021 yang dikeluarkan oleh responden ketiga.

Kebenaran diberi kepada pemohon-pemohon di atas untuk menggantung perlaksanaan Pekeliling Perkhidmatan Bilangan 4 Tahun 2021 Dasar Perlaksanaan Imunisasi Covid-19 bagi Pegawai Perkhidmatan Awam Persekutuan bertarikh 18 Oktober 2021 sementara menunggu kajian dan perkembangan vaksin-vaksin Covid-19 tamat dan Berjaya sepenuhnya dan disahkan oleh “World Health Organization”.

(vi) Deklarasi bahawa paksaan dan/atau dorongan secara langsung dan/atau tidak langsung oleh responden-responden untuk mengarahkan pemohon-pemohon mengambil suntikan vaksin-vaksin Covid-19 adalah bertentangan dengan Perlembagaan Malaysia iaitu Perkara 5, Perkara 8 dan Perkara 9 Perlembagaan Pesekutuan Malaysia.

(vii) Kebenaran diberi kapada pemohon-pemohon untuk mendapatkan satu perintah mandamus iaitu suatu pemakluman besar-besaran dibuat oleh responden-responden dalam semua media massa samada dalam bentuk cetak atau secara dalam talian (online) terhadap butir-butir berikut:

Kesan-kesan sampingan termasuk kesan mudarat besar dan kecil secara telus terhadap individu-individu yang telah divaksin dengan mana-mana vaksinasi Covid-19 di dalam Malaysia termasuklan tetapi tidak terhad terhadap Vaksin Pfizer Biontech (Corminaty), Sinovac (CoronaVac), Astra Zeneca (Vaxzefria), CanSino (Cansino Biologics), Sinopharm (BBIP-CorV) dan lain-lain vaksin Covid- 19 yang berkaitan;

Tempoh sebenar jangkamasa Uji Kaji “Clinical Trial” terhadap semua jenis vaksinasi Covid-19 di Malaysia ini akan tamat dan selesai sepenuhnya terhadap individu dewasa, remaja dan/atau kanak-kanak;

Borang kebenaran pra vaksinasi Covid-19 “Informed Consent” terhadap semua jenis Vaksinasi Covid-19 tersebut dimasukan semua informasi mengenai AEFI vaksin secara telus termasuk kematian dan tempoh masa AEFI terhadap individu sepertimana yang terdapat dalam Garispanduan Farmakovigilans Keselamatan Vaksin di Malaysia yang dikeluarkan oleh responden keempat;

bahawa pemberian Vaksinasi Covid-19 adalah berdasarkan pilihan individu semata-mata seperti yang disyaratkan dalam Risalah Maklumat Ubat untuk Pengguna (RiMUP) untuk vaksin-vaksin yang berkenaan yang dikeluarkan oleh Bahagian Regulotari Farmasi Negara (NPRA) di bawah Kawal selia responden keempat;

Bilangan keseluruhan dos Vaksinasi Covid-19 yang dianggap lengkap oleh responden-responden;

Bahawa satu statistic dan data terperinci dikemukakan iaitu terhadap tahap keberjangkitan Covid-19 terhadap sekolah-sekolah yang dikawalselia oleh responden pertama dan responden kedua yang telah mencapai tahap

Bahawa pemohon-pemohon di atas serta individu-individu yang tergolong dalam kategori penjawat awam dalam tafsiran responden ketiga tidak didiskriminasi dalam apa bentuk sekalipun termasuklah tetapi tidak terhad kepada, diasingkan bilik di sekolah, diasingkan tempat makan dan tidak dibenarkan mengajar secara bersemuka di tempat kerja dan di luar tempat kerja semata-mata tidak melengkapkan Vaksinasi Covid-19 dan/atau memilih untuk tidak mengambil Vaksinasi Covid-19;

Bahawa satu kenyataan peraturan individu yang telah mengambil vaksin Covid-19 di Malaysia dan telah melengkapi dua dos vaksin tersebut telahpun melebihi tahap 90 peratus dan golongan individu yang tidak divaksin oleh vaksin Covid-19 bukan merupakan ancaman terhadap negara/tempat kerja/tempat-tempat awam;

Bahawa mahkamah yang mulia ini mengambil kira keseluruhan Garis Panduan Farmakovigilans Keselamatan Vaksin di Malaysia Jilid Pertama 2010 yang diterbitkan oleh responden keempat dan kelima.

(viii) Deklarasi bahawa pemohon-pemohon dan penjawat awam-penjawat awam tidak dikenakan satu tindakan tatatertib semata-mata kerana menolak kemasukkan sebarang imunisasi vaksin Covid-19 di bawah Perkara 132(2) Perlembagaan Persekutuan, Peraturan-Peraturan Pegawai Awam [P.U.(A) 1/2012] oleh kerana tindakan mewajibkan imunisasi vaksin Covid-19 ke dalam tubuh individu/seseorang adalah bertentangan dengan Perkara 5, Perkara 8 dan Perkara 9 Perlembagaan Persekutuan;

(ix) Suatu perintah bahawa Perlaksanaan Program Imunisasi Covid-19 bagi Pegawai Perkhidmatan Awam Persekutuan seperti yang dipaparkan dalam Surat Pekeliling responden ketiga Pekeliling Perkhidmatan Bilangan 4 Tahun 2021 Dasar Perlaksanaan Imunisasi Covid-19 Bagi Pegawai Perkhidmatan Awam Persekutuan bertarikh 18 Oktober 2021 untuk semua penjawat awam termasuk pemohon-pemohon digantung perlaksanaannya sehingga pelupusan semakan kehakiman ini oleh mahkamah yang mulia ini;

Kos permohonan dijadikan kos dan kausa;

(xi) Kos permohonan dibayar oleh responden-responden; dan

(xii) Perintah-perintah lain yang mahkamah yang mulia ini fikirkan suaimanfaat dan adil.” Grounds for Judicial Review [3] The applicants in their application for judicial review have stated grounds for this application which may be reduced to the following:

illegality, irrationality, unreasonableness and contrary to the principle of natural justice; and

(ii) contravention of Articles 5,8 and 9 of the Federal Constitution. Factual Background [4] The facts of this application is derived from documents filed by parties before this court. The applicants are teachers employed by the Government of Malaysia. [5] On 24.02.2021, as one of the measures taken to combat rampant spreading of the Covid-19 cases within the country, the Government implemented the national vaccination campaign known as the National Covid-19 Immunization Programme (“PICK”). PICK is the origin of the impugned Decisions, upon which the applicants’ grievances in this application are founded. PICK was launched with the target of achieving 70% to 80% vaccination rate amongst Malaysians by February 2022. [6] On 18.10.2021, the third respondent issued the impugned Service Circular which stipulated that all officers within the meaning of Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 (P.U. (A) 1/2012) are required to be fully vaccinate with the Covid-19 vaccine. The purpose of the impugned Service Circular is to provide confidence and assurance to the public and to ensure uninterrupted service to the public. The impugned Service Circular requires any act of any officer to correspond with Government policy in terms of the enforcement of Covid-19 immunization. [7] Under the impugned Service Circular, an officer is required to obtain complete Covid-19 immunization dose as per the standard fixed by the Government. Commencing from 01.11.2021, axcept those who are certified to be medically ineligible to be vaccinated, an officer could be instructed by his Head of Department to obtain complete Covid-19 immunization dose by producing the Covid-19 Vaccination Digital Certificate. Failure to adhere with his Head of Department’s instructions would cause the officer to face disciplinary action or termination of service. To achieve such purpose, the Head of Department is empowered to consider any appropriate measure to manage any officer who had failed to obtain or complete the Covid- 19 immunization including instructions to undergo Covid-19 detection. [8] The applicants’ complain on the impugned Guideline are that they are being discriminated and being treated unfairly due to their refusal on being vaccinated. [9] The impugned Guideline was issued on 24.09.2021 in conjunction with the National Recovery Plan, as a preparatory step for school reopening on a face-to-face basis. The objectives of the impugned Guideline are as follows:

to ensure the management of school be carried out more orderly and fluently;

(ii) to ensure safe school environment so as to guarantee the health and safety of the students so long as they remain in school;

(iii) to ensure that the learning and teaching (commonly known as Pelajaran dan Pembelajaran, or PdP) process be carried out in a safe situation; and

(iv) to ensure that the central assessment and public examination be carried out more orderly and fluently. [10] The impugned Guideline reiterated the importance of vaccination, and stated that teachers who have yet to obtain complete vaccination or are not vaccinated have to be present in school, and stipulated that such unvaccinated teachers to comply with the followings:

to ensure compliance with the guideline and instruction issued by the Ministry of Education Malaysia;

(ii) to wear multiple face masks and face shield;

(iii) not being allowed to undergo PdP on a face-to-face basis; and

(iv) not to be in the same room or area with students or other school folks who have completed their vaccination. [11] On 25.11.2021, in line with the impugned Service Circular, the Ministry of Education Malaysia issued a guideline on the control management of Covid-19 epidemic for the Ministry of Education Malaysia (Garis Panduan Pengurusan Kawalan Penularan COVID- 19 Bagi Kementerian Pendidikan Malaysia) (“the KKM Guideline”). The KKM Guideline is to be read with the impugned Service Circular and the impugned Guideline. The KKM Guideline explains the responsibilities of the Head of Department in managing the Ministry of Education Malaysia’s government premises, including officers who are physically present in the said premises. Under the KKM Guideline, the Head of Department shall consider any appropriate means to manage officers who are still required to attend but are not being vaccinated or not completely vaccinated including to instruct such officers to undergo Covid-19 tests from time to time. The Head of Department may also confirm or support (memperakui) such officers for their relocation or replacement. In the event if the Head of Department neglected in complying with the KKM Guideline, the Head of Department himself may be subjected to disciplinary action. In any circumstances, the KKM Guideline is not the subject of this application, but it demonstrated the determination of the Government in combating Covid-19. This is in line with the spirit of the impugned Guideline and the impugned Service Circular. Principles relating to Judicial Review [12] With regard to judicial review, it is trite law that a decision in relation to the exercise of public duty or function may be reviewed on the grounds of illegality, irrationality, procedural impropriety or disproportionality. What amounts to illegality, irrationality and procedural impropriety has been succinctly laid down by Lord Diplock in the case of Council of Civil Service Unions & Ors v. Minister of Civil Service [1985] AC 374 which was adopted by the Federal Court in the case of R Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145 as follows: “In this context, it is useful to note how Lord Diplock (at pp. 410- 411) defined the three grounds of review, to wit, (i) illegality, (ii) irrationality, and (iii) procedural impropriety. This is how he put it: By 'illegality' as a ground for Judicial Review I mean that the decision maker must understand directly the law that regulates his decision making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of a dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness' (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the courts' exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious explanation in Edwards v. Bairstow [1956] AC 14, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though undefinable mistake of law by the decision maker. 'Irrationality' by now can stand on its own feet as an accepted ground on which a decision may be attacked by Judicial Review. I have described the third head as 'procedural impropriety' rather than failure to observe basic rules of natural justice or failing to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to Judicial Review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” [13] Notwithstanding the foregoing approach, it has also been decided by the Federal Court case of Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 that, only in the most appropriate of cases the Rama Chandran (supra) approach is applicable. Cases involving issue of public policy, national interest, public safety or national security are not amenable to the approach taken in Rama Chandran (supra). [14] Founded on the above mentioned principles, this court will proceed to consider this application. Analysis [15] The issues to be addressed in this judicial review is whether the respondents, in coming out with impugned Decisions, have done so within the boundaries of the laws, rules and regulations, or whether the impugned Decisions have been tainted with illegality, irrationality and/or Wednesbury Unreasonableness or proportionality such that this court should exercise its powers to quash them. [16] At the outset, Senior Federal Counsel for the respondents in attempted to convince this court to dismiss this application for judicial review on the reason that, in light that the KPM Guideline 3.0 has been replaced, the matter has become academic and therefore need not be considered by this court. [17] Nonetheless, for the purpose of completeness and clarity, this court will consider the grounds put forth by the applicants in this application for judicial review. Illegality and/or Irrationality and/or Unreasonableness and contrary to the Principles of Natural Justice [18] The applicants argued that the impugned decisions are tainted with illegality and/or irrationality. The applicants raised several reasons in support of their contention. In this regard, the main complain of the applicants is on the impugned Service Circular. [19] The applicants highlighted several occasions on how they are being discriminated and/or being treated unfairly:

the first applicant, being a Mandarin Teacher in Sekolah Menengah Kebangsaan Chung Hwa Wei Sin (CF), Terengganu, complained of being isolated in a secluded room with weak internet connections (therefore being unable to effectively conduct online teachings), not being allowed to conduct face-to-face teachings (this is notwithstanding his students are facing the Malaysian Certificate of Education examination); being instructed to use a different toilet and a special lane, and being not allowed access to the school canteen. He is also being instructed to undergo RTK tests despite displaying no symptom and not in close contact with covid-19 patient. He raised his concern to the Director of the State Education Department but received no feedback and he alleged that this is due to the refusal of the Director to meet unvaccinated teachers;

(ii) the second applicant being a teacher teaching various subjects in Sekolah Jenis Kebangsaan Cina Sin Wah, Melaka complained of being forced to undertake covid-19 vaccination despite having Adverse Effect Following Immunization (AEFI) during her childhood (she was supported with a statement from a private consultant physician). She also complained of being traumatized by her childhood AEFI experience, more so when her own child suffered AEFI after receiving Measles, Rubella, Diptheria and Tetanus vaccines. The second applicant also complained of receiving similar treatment to that of the first applicant, that she being secluded in a “small and cramped” room, being forced to use a toilet which is far from the building she is working in, etc. She is also being ordered to show cause on why she refused to be vaccinated, and to attend the briefing session, which she termed it as a brainwash session. Starting from 01.11.2021, the second applicant is being stopped from conducting online teachings and her attendance is being marked as absent;

(iii) the third applicant being a pre-school teacher in Sekolah Kebangsaan Islah, Kota Bharu, Kelantan had been instructed to undergo vaccination even before the impugned Service Circular was issued failing which she was threatened that she will be subjected to “strict and baseless” treatment such as not being allowed to use the same door as other vaccinated teachers, among others;

(iv) the fourth applicant is an Islamic Education and Special Education teacher in Sekolah Kebangsaan Bachang, Melaka. She claimed to having been insulted and shamed in front of others by the Duputy District Education Officer that she is not entitled to receive equal treatment like a normal person because she refused to be vaccinated. She also complained that she is not allowed to move freely in the school compound and that a red tape and label has been placed at the place where she is confined to which is the surau, as if she is a outcast; and

the fifth applicant being a Special Education teacher in Sekolah Kebangsaan Bagan Terap, Selangor has been restricted from conducting face-to-face teachings and undertake any activity with other teachers and students. She is also being placed in a special isolation centre with weak internet connection and not being allowed access to the school canteen. On 04.10.2021, while she is teaching in a class face-to-face, one of her colleagues shouted from the backdoor of the class at her that she is not complete (tak lengkap), she is full of disease (berpenyakit), she is stubborn (ketegaq) and she was being threatened to be thrown outside. [20] Other than the above, the applicants complained that the impugned Service Circular is in breach of the guideline issued by the Malaysian Medical Council in relation to the necessity of obtaining consent. They also averred that they are under distress due to being pestered by their superiors’ and/or other officers’ incessant threat, request and/or instruction to receive Covid-19 vaccinations or risk being treated differently. [21] In brief, the applicants’ argue being subjected to the impugned Service Circular are being mandated to receive Covid-19 vaccinations at the behest of their Head of Department, against their will and due to their reluctance to do so, they are under the risk of facing disciplinary actions or any other actions by their Head of Department. [22] Upon perusal of the impugned Service Circular, it clearly states the source of power of its implementation which is on Regulation 20 of Chapter A of (P. U.(A) 104/2012). It is pertinent to note that the applicants did not attempt to challenge the constitutionality or legality of the source of power itself, but rather on the resultant circular. Neither did the applicants challenge the validity of the respondents in exercising their power based on the source of power. By the applicants’ failure to challenge the source of power of the impugned Service Circular, this court is unable to see how the impugned Service Circular is tainted with illegality. [23] The next contention by the applicants is in relation to Paragraph 11 of impugned Service Circular. The applicants averred that it has caused confusion as to its implementation and therefore tainted with illegality. [24] However, this court noticed that none of the applicants, save for the second applicant, averred as to how they have been adversely affected by the existence of Paragraph 11. [25] It is trite that it order to be susceptible to judicial review, one must demonstrate how he has been adversely affected by such decision (on this particular issue, the Paragraph 11 as a whole). [26] If this court is to take the second applicant’s grievance into account (i.e. the Headmistress refuse to take into account the opinion of a medical practitioner within the meanings of Chapter A), this is not an indication that the impugned Service Circular is illegal. The refusal of the Headmistress to accept the opinion of the medical practitioner, in the view of this court, does not amount to an illegality. The action of the Headmistress does not, in the considered view of this court denote that the impugned Service Circular illegal. [27] With regard to the impugned Guideline, Paragraph 1.1 of the impugned Guideline states that the impugned Guideline is based on the Standard Operating Procedure issued by the Ministry of Health Malaysia and the Malaysian National Security Council. This court observes that the applicants did not challenge the validity of the Standard Operating Procedure issued by the aforementioned two bodies. The applicants too did not plead clearly and precisely if the impugned Guideline is in fact not in compliance with the said Standard Operating Procedure and if that is the case, how the Ministry of Education departed from it. There is no evidence before this court as to the illegality and/or irrationality of the impugned Guideline. [28] In fact, the impugned Guideline illustrated rationality and fairness on the part of the respondents. The impugned Guideline provided alternatives to those who chose not to be vaccinated to continue to serve the government, and at the same time balance the interests of those who has vaccinated. The argument by the applicants that the statement from the personnel that they will make the life of the group who refused to be vaccinated miserably also does not hold water because such statement itself does not make the impugned Guideline 3.0 illegal. [29] Learned Senior Federal Counsel Tuan Liew Horng Bin for the respondents argued the impugned Service Circular is a management prerogative of the Public Service Commission and the government. In support of this submission Tuan Liew Horng Bin cited the Australian case of Brasell-Dellow v. State of Queensland (Queensland Police Service) [2021] QIRC which cited Rv Darling Island Stevedoring and Lighter; ex parte Halliday and Sullivan [1948] 60 CLR 621. These case stated that the direction must be obeyed provided compliance does not involve illegality and the directive is reasonable. [30] Pertaining to Covid-19 mandatory vaccination programme, the respondens cited cases in Australia. The courts in Australia have made the following decisions relating to the Covid-19 vaccination programme: “(i) in the context of school, taking into consideration of the high level of risk and the health and wellbeing of students, families, departments workers and other stakeholders who access a school, the mandatory vaccination direction is legal and reasonable (Thorley v. Queensland (Dept of

(ii) the decision to suspend an unvaccinated teacher with or without pay for failing to comply with the mandatory vaccination direction is unassailable (Tadeo v. State of Queensland (Dept of Education) [2022] QIRC 177 at [53]- [59]; Beber v Queensland (Dept of Education) [2022] QIRC 295 at [55]; Currie (Murray) v Queensland (Dept of Education) [2022] QIRC 269 at [16]);

(iii) in the general context of public service, a direction issued by the relevant service commission mandating vaccination in response to Covid-19 is a ‘binding directive’ forming part of the ‘condition of employment’ and ‘must be obeyed by an employee because it is reasonable and does not involve illegality’ (Mocnik v. Queensland (Queensland Health) [2023] QIRC 058 at [16]-[23]); Mackenzie v State of Queensland (Queensland Health) [2023] QIRC 121 at [42]-[46]);

(iv) the power and authority of the public service commission to issue such ‘binding directive’ in relation to vaccination policy, as part of its management prerogative, ‘could not be disputed’ (Construction, Forestry Mining & Energy, Industrial Union of Employees v State of Queensland (Dept of Transport and Main Roads) [2022] QIRC 134 at [19]);” [31] The mandatory vaccination directive in this judicial review is similar to those in the Australian cases. In the Australian cases and this judicial review, the directive is for mandatory vaccination. Failure of which may result in disciplinary proceedings instituted against the applicants. Secondly, the rationale for imposing a mandatory vaccination in both the Australian cases and in this judicial review is the same. [32] In the Australian case of Cox v. DP World Brisbane Limited [2021] FCA 1335, the Australian courts had taken the view that the mandatory vaccination directive was permissible. In this regard, the courts were to take judicial notice among others of the use the Covid-19 vaccine to reduce the risk a vaccinated person will be infected with Covid-19, and that Covid-19 poses a substantial risks to health and safety and will continue to do so even after it becomes endemic and vaccination rate are high. [33] The Covid-19 pandemic was a global pandemic that affected the whole world. It was not something humans had ever imagined happening and we even less prepared to deal with such a situation. The Covid-19 was unprecedented; a phenomena that we had only watched in films, was now a thing reality. [34] This court takes judicial notice in order to substantially reduce the transmission Covid-19 amongst people, immunisation of the Covid- 19 vaccine was necessary and pertinent. The vaccination programme imposed by the Government was tailored to reduce the risk of a Covid-19 infected person to become seriously ill or die. [35] Hence, this court is of the considered view the mandatory vaccination programme was necessary to ensure the safety and health of the public at large. The impugned Decisions came into force lawfully and legally. The applicant’s challenge on informed consent, coercion and violation of the right to bodily integrity, in the view of this court, cannot stand and is not a violation of Article 5 of the Federal Constitution. [36] In relation to the reasonableness or rationality of the impugned Decisions, the Australian courts which are persuasive in nature, have dealt with this issue. The courts in Australia have found the mandatory vaccination directive to be reasonable. The rationale lies in the gravity of the purpose of the directive which is to manage the risks associated with the transmission of Covid-19. This includes ensuing employees comply with the directive [see: Elliott v. Queensland (Queensland Health) [2022] QIRC 332; Galletly v. Queensland (Queensland Health) [2023] QIRC 40]. [37] At the risk of repetition, the Covid-19 pandemic was global and unprecedented. There was an urgent need to contain the spread of the Covid-19 virus which required measures such as the impugned Decisions. It appears to this court, given the acute spread of the Covid-19 virus and the loss of lives, such measures (the impugned Decisions) are reasonable and rational; and were urgently required to curb the spread of Covid-19 and the loss of lives. Issue on Constitutionality [38] In this application for judicial review, the applicants raised the issue of constitutionality that the impugned decisions are against Articles 5, 8 and 9 of the Federal Constitution. [39] In this regard, this court considered the provisions for Article 5 as reproduced below: “(i) Article 5

Article 5 of the Federal Constitution is not absolute. It stated no citizen shall be deprived of his personal liberty … save in accordance with law.” [40] The scope of “save in accordance with law” has been addressed in Alma Nudo Atenza v. PP [2019] 5 CLJ 780 where the Federal Court has find that: “[106] It is therefore clear that the “law” in the proviso “save in accordance with law” does not mean just any law validly enacted by Parliament. It does not authorise Parliament to enact any legislation under art. 5(1) contrary to the rule of law. While the phrase "in accordance with law" requires specific and explicit law that provides for the deprivation of life or personal liberty (see: In Re Mohamad Ezam Mohd Nor [2002] 5 CLJ 156; [2001] 3 MLJ 372 at p. 378), nevertheless such law must also be one that is fair and just and not merely any enacted law however arbitrary, unfair, or unjust it may be. Otherwise that would be rule by law. [107] The “law” thereof also refers to a system of law that incorporates the fundamental rules of natural justice that formed part and parcel of the common law of England. And to be relevant in this country, such common law must be in operation at the commencement of the FC. Further, any system of law worthy of being called just must be founded on fundamental values. “The law must be related to the... fundamental assessments of human values and the purposes of society” (per Viscount Simonds, Shaw v. DPP [1962] AC 220 at p. 268). As persuasively argued by Lord Bingham, the rule of law requires that fundamental rights be protected, (see: Bingham, The Rule of Law (London: Penguin Books, 2011 at pp. 66-68). It is also taken for granted that the “law” alluded to would not flout those fundamental rules. As Lord Diplock stated in no weak terms, to hold otherwise would render the purported entrenchment of fundamental liberties provisions in the FC “little better than a mockery”. (See: Ong Ah Chuan (supra) at p. 670).” [Emphasis added] [41] The respondents in their affidavits averred on the background event that transpired and the need for the public servants, being frontlines, to be vaccinated. Furthermore, being in public service, the applicants are duty bound to whatever rules and regulations applicable to public servants. [42] Article 8 of the Federal Constitution provides:

“Equality

All persons are equal before the law and entitled to the equal protection of the law.

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

No public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority.

This Article does not invalidate or prohibit—

any provision regulating personal law;

any provisions or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion;

any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the reservation to aborigines of a reasonable proportion of suitable positions in the public service;

any provision prescribing residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;

any provision of a Constitution of a State, being or corresponding to a provision in force immediately before

any provision restricting enlistment in the Malay Regiment to Malays.” [43] The applicants claimed that they have been discriminated as opposed to those who have been vaccinated. The applicants claim that, they have been discriminated against the citizens as a whole who are entitled to decide whether or not to be vaccinated. [44] In the case of Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713 where the Federal Court stated: “In the circumstances, in construing art. 8 of the Federal Constitution, our hands are tied. The equal protection in cl. (1) of art. 8 thereof extends only to persons in the same class. It recognizes that all persons by nature, attainment, circumstances and the varying needs of different classes of persons often require separate treatment. Regardless of how we try to interpret art. 8 of the Federal Constitution, we could only come to the conclusion that there was obviously no contravention” [Emphasis added] [45] Pertaining to the issue of equality as provided for in Article 8 of the Federal Constitution, this court alluded to the case of Datuk Harun Idris v. Public Prosecutor [1977] 2 MLJ 155, Public Prosecutor v. KHong Teng Khen [1976] 2 MLJ 166 and Public Prosecutor v. Harmenderpali Singh a/l Jagar Singh [2007] 3 MLJ 433. [46] In this regard, this court alluded to the doctrine of reasonable classification which provides that equality before the law means persons of the same class as entitled to be treated equally. [47] Applying this doctrine of reasonable classification to the facts of this application for judicial review, this would mean that the applicants being teachers must be treated equally with other teachers. The class in this case is teachers. As the applicants in this case have been treated similarly to all teachers, this court is of the considered view the issue of contravention of Article 8 of the Federal Constitution does not arise. [48] The applicants further relied on Article 9 of the Federal Constitution in their submissions as a ground of challenge. Article 9 of the Federal Constitution reads:

“Prohibition of banishment and freedom of movement

No citizen shall be banished or excluded from the Federation.

Subject to Clause (3) and to any law relating to the security of the Federation or any part thereof, public order, public health, or the punishment of offenders, every citizen has the right to move freely throughout the Federation and to reside in any part thereof.

So long as under this Constitution any other State is in a special position as compared with the States of Malaya, Parliament may by law impose restrictions, as between that State and other States, on the rights conferred by Clause (2) in respect of movement and residence.” [49] Pertaining to this contention, the applicants did not submit on how their rights under Article 9 are violated. Nonetheless, for the sake of completeness, this court considered Article 9 of the Federal Constitution. Article 9(2) expressly stated that the right to freedom of movement is subject to any law relating to the public order or public health. [50] The respondents averred that, that the vaccination is to curb spreading of the Covid-19. Abdoolcader J in the case of Re Application of Tan Boon Liat @ Allen; Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126 stated the following: “The expression 'public order' is not defined anywhere but danger to human life and safety and the disturbance of public tranquility must necessarily fall within the purview of the expression. It is used in a generic sense and is not necessarily antithetical to disorder, and is wide enough to include considerations of public safety within its signification. The Supreme Court of India exhaustively discussed the import of the term 'public order' in Romesh Thappar v. State of Madras AIR 1950 SC 124, 127 (in particular at p. 127) when it established the principle that the maintenance of public order is equated with the maintenance of public tranquillity, that 'public safety' is a part of the wider concept of 'public order', that 'public safety' ordinarily means security of the public or their freedom from danger and in that sense will include the securing of public health, that is to say, anything which tends to prevent dangers to the public health may also be regarded as securing public safety.” [Emphasis added] [51] Article 9 of the Federal Constitution and the case law cited reinforce the contention that right to freedom of movement is subject to any law relating to the public order or public health. In this case, the Covid-19 pandemic is certainly and evidently a global pandemic which required the authorities to take measures to the curb of the spread of Covid-19 and to ensure the public health was maintained and preserved. Hence, this court cannot agree with the applicants’ contention that the impugned Decisions resulted in a contravention of Article 9 of the Federal Constitution. Conclusion [52] For the aforementioned reasons, this court is satisfied there is no illegality, irrationality, Wednesbury Unreasonableness or proportionality such that this court should exercise its powers to quash the impugned Decisions. [53] Moreover, this court is satisfied the impugned decisions have not led to a contravention of the applicants’ constitutional rights. [54] This court therefore dismisses this application for judicial review with no order as to costs. Date: 04 Mac 2024 (SHAHNAZ BINTI SULAIMAN) Judge High Court of Malaya, Shah Alam Counsel: For The Applicant: Muhammad Amin bin Anuar, Mustaqim Huzaini, Musfira binti Mohd Fahmi. Tetuan Amin Chambers Advocates & Solicitors 43-3-1, Level 3, Blok G6, Jalan 3/101C, Cheras Business Centre, 56100 Kuala Lumpur. aminchambers.legal@gmail.com +6 03 9544 0244 For the Respondent: Liew Horng Bin, Siti Norashikin binti Hassanor. Jabatan Peguam Negara Malaysia Bahagian Guaman No. 45, Persiaran Perdana Presint 4, 62100 Putrajaya +6 03 8872 2000 norashikin.hassanor@agc.gov.my