Post by Nikkita Koh Si Qi

𝐃𝐨𝐞𝐬 𝐚 𝐯𝐚𝐜𝐜𝐢𝐧𝐚𝐭𝐢𝐨𝐧 𝐚𝐦𝐨𝐮𝐧𝐭 𝐭𝐨 𝐞𝐧𝐜𝐫𝐨𝐚𝐜𝐡𝐦𝐞𝐧𝐭 𝐨𝐯𝐞𝐫 𝐨𝐧𝐞’𝐬 𝐫𝐢𝐠𝐡𝐭 𝐭𝐨 𝐛𝐨𝐝𝐢𝐥𝐲 𝐢𝐧𝐭𝐞𝐠𝐫𝐢𝐭𝐲? 💉 As part of my internship at Thomas Philip, Advocates & Solicitors, I attended a court proceeding today at the Federal Court concerning 𝐀𝐡𝐦𝐚𝐝 𝐅𝐢𝐫𝐝𝐚𝐮𝐬 𝐛𝐢𝐧 𝐎𝐦𝐚𝐫 𝐯 𝐔𝐧𝐢𝐯𝐞𝐫𝐬𝐢𝐭𝐢 𝐌𝐚𝐥𝐚𝐲𝐚 wherein employees of Universiti Malaya (the Applicants) contested the mandatory COVID-19 vaccination policies implemented by the university (the Respondent). The case centers on the 2021 JPA circular requiring vaccinations for civil servants and a Universiti Malaya directive for unvaccinated staff to take unpaid leave and undergo counseling. Ultimately, the court dismissed the Applicants' motion for appeal. The following suggestions made by both parties particularly intrigued me: 1️⃣ Whether vaccinations amount to violation of one’s right to bodily integrity The Applicants expounded that threats of disciplinary action or termination for refusing vaccination constituted coercion, and violated one’s right to bodily integrity. This was further embellished by the proposition that the Applicants were being treated differently than the general public for whom vaccination was voluntary, and were segregated from their vaccinated colleagues. The Respondent creatively counter-argued by emphasizing on global health crisis and contractual obligations of public servants. What I find particularly fascinating was how the counsel was able to draw a dichotomy between choice and coercion and propounded that the directives did not constitute “forced vaccination” since individuals still had a real choice. While there were repercussions for refusal to vaccinate (e.g. suspension, unpaid leave), these were categorized as standard disciplinary responses to non-compliance of a lawful, reasonable employer’s direction. This was beautifully packaged with the argument that Article 9 of the Federal Constitution subjects freedom of movement to laws pertinent to public health. 2️⃣ Whether ratio decidendi of a commonwealth court decision based on a constitution similar to Malaysia’s precedes over other countries that made no reference to a similar constitution The crux of the Applicants’ argument was premised on the Indian Supreme Court decision in 𝐉𝐚𝐜𝐨𝐛 𝐏𝐮𝐥𝐢𝐲𝐞𝐥 𝐯 𝐔𝐧𝐢𝐨𝐧 𝐨𝐟 𝐈𝐧𝐝𝐢𝐚 & 𝐎𝐫𝐬. In particular, since 𝐉𝐚𝐜𝐨𝐛 𝐏𝐮𝐥𝐢𝐲𝐞𝐥 was decided based on a constitution similar to Malaysia’s, it is a persuasive precedent, particularly since the legal questions raised are considered for the first time in Malaysia and are not explicitly delineated in local statutes. One interesting proposition by the Respondent was that 𝐉𝐚𝐜𝐨𝐛 𝐏𝐮𝐥𝐢𝐲𝐞𝐥 should not be taken into account as the risk of infection in the case is the same when one is vaccinated. Conversely, in the present context, one could not suggest that the risk of infection before and after getting vaccinated is the same.