It is not only a question of personal liberty. It has also to do with the fundamental right a person has over his bodily integrity
Qs & As
As mass vaccination programmes are being rolled out, national authorities are confronted with resistance on the part of people who refuse to be vaccinated on several grounds. This goes against the common good, as everybody is at risk and without mutual responsibility this may be compromised. Whether vaccines can be made mandatory or not is an issue that has legal implications. LEX examines the implications involved.
Although not in the UK government’s plans, mandatory vaccines have become a focus for some protesters. EPA-EFE
* The European Court of Human Rights (ECHR) in Strasbourg ruled on Thursday 8th April that compulsory vaccinations would not contravene human rights law. Here, thousands of our frontliners in the health sector – those who can also act as vectors for the spread of the disease — have refused to get vaccinated, thereby potentially prolonging the pandemic and contributing to spikes in cases. Shouldn’t vaccination be made compulsory for frontliners to begin with?
By Czech law, children must be vaccinated against nine diseases including diphtheria, tetanus, whooping cough, hepatitis B and measles. The European Court of Human Rights ruled that compulsory vaccinations would not contravene human rights law — and may be necessary in democratic societies. “The measures could be regarded as being ‘necessary in a democratic society,'” the court judgment said.
It must be noted that the ruling did not deal directly with Covid-19 vaccines. According to experts the ruling may have implications for the vaccination drive against the Covid-19 virus, especially for those who have so far expressed a refusal to accept the jab.
* If not the government itself, it’s possible that private schools (from pre-primary to post-secondary), private firms and business houses, trade and industries in Mauritius would eventually impose upon their students/staff compulsory vaccination. Would that go against the constitutional rights of students, parents and personnel?
The ECHR ruling came following the evaluation of a complaint brought to the court by Czech families who had been fined, or whose children had been refused access to a nursery for failing to comply with their legal vaccination duty. The ruling stated that compulsory childhood vaccination in the Czech Republic doesn’t violate the European Convention on Human Rights. The Court added the Czech policy “pursued the legitimate aims of protecting health as well as the rights of others” and that in all decisions concerning children “their best interests must be of paramount importance.” The court found that the Czech immunization policy was “consistent with the best interests of the children who were its focus.”
Can that principle be adopted in Mauritius for frontliners and for those who have to be in contact with persons given the nature of their work? To the extent that the vaccine affords some measure of protection or immunity against the virus, it would be advisable for all those who are in regular contact with people, especially, doctors and nurses; police officers and others to consider being vaccinated. Can they be forced? Certainly not, but they are putting themselves and others at risk.
The other side of the coin is that some employers do not want their employees to attend the place of work if they are not vaccinated. And currently only those in possession of a Work Access Permit (WAP) are getting the vaccine. If you do not have a WAP, you are left at risk or left to die. Isn’t that ironical when we hear the authorities shouting on the rooftop that everyone should get vaccinated.
* For vaccination to effectively prevent disease, there must be available sufficient vaccines, but it also might be necessary to make vaccination mandatory with a view to reaching herd immunity. Should government however provide exemptions based on religious or philosophical beliefs, besides reasons in relation to “compromised immune systems, allergies to vaccination components, etc”?
When a pandemic hits the world and a vaccine is available, saving lives and protecting the health of the people are of paramount importance. Bigotry based on any philosophy has no place in the fight against the pandemic. At any rate, when people go to get vaccinated, they are asked about any allergies they have. But how would a layperson know what allergies he suffers from? If he is allergic to some chemical components in the vaccine, he does not get the jab. What does he do? What is the solution? Only medical experts can give an answer to that question.
* The argument against the anti-vaxxers for whatever reasons, including lack of trust in vaccines, disinformation, etc., is that “lockdown is mandatory, and it is inconsistent to accept mandatory lockdown but reject mandatory vaccination” which protects vulnerable people from Covid-19… and achieves a much greater good at a much smaller cost”. That makes sense, isn’t it?
Yes and no. The lockdown is not a cure. It a measure to prevent the spread of the virus.
We cannot compare the mandatory lockdown with a policy of mandatory vaccination. A vaccination is an invasion of the bodily integrity which may have far-reaching consequences. This is why there is a consent form that should be signed.
* On the other hand, “mandatory vaccination ensures that the risks and burdens of reaching herd immunity are distributed evenly across the population. Because herd immunity benefits society collectively, it’s only fair that the responsibility of reaching it is shared evenly among society’s individual members…”
In the absence of any law or a ruling by the Supreme Court, as at present advised the Covid-19 vaccine cannot be imposed on people. People may be advised to get the vaccines but they cannot be compelled to take the jab.
The integrity of the human body is a fundamental right. In 1990 a Judge of the Supreme Court ruled that “one cannot think of a case where the protections of fundamental rights and freedoms of the individual can be more sacrosanct than where the protection relates to the body of the individual.”
* If mandatory vaccination should be seriously envisaged, what are the penalties that could be applied for failure to vaccinate? Fines or limitations on freedom of movement?
It is most unlikely that a law that would make vaccination mandatory will be enacted in the present context. The penalty should be limited to a fine, if ever such a law is envisaged.
* The view has been expressed in some quarters that limitations on freedom of movement as prescribed for the implementation of lockdowns might go against the constitutional rights of individuals in a democratic society. Is that correct?
The lockdown is mandatory and is not unconstitutional as the State is taking measures to protect life and health. People who are complaining about restriction on their freedom of movement and freedom of assembly and association (which are protected under the Constitution), should be reminded that these rights may be derogated in the interest, amongst other reasons, of public health.
* At the end of the day, one should reckon that compulsory vaccination is a difficult policy issue, requiring the authorities to balance public health with individual liberty…
It is not only a question of personal liberty. It has also to do with the fundamental right a person has over his bodily integrity. An invasion of the bodily integrity is an exceptional measure.
* Published in print edition on 13 April 2021
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