By Rico J. Yearwood & Johanan L. Lafeuillee
Rico J. Yearwood is the Head of the Public Law Department at CARICOM Attorneys-at-Law and Johanan L. Lafeuillee is the Principal Lawyer and Managing Partner at CARICOM Attorneys-at-Law.
The Prime Minister of Antigua & Barbuda, The Hon. Gaston Browne, recently announced his intention to make COVID-19 vaccinations mandatory for Antiguan & Barbudan residents. He stated, “…it is going to be an inescapable fact that people have no choice but to get vaccinated…[t]hey either do so voluntarily to protect lives and livelihoods or be forced to do so.” This statement raises the question being asked worldwide – Do governments have the power to make COVID-19 vaccinations mandatory? In short, the answer is “Yes, they do possess that power”. However, this governmental power cannot be exercised arbitrarily. It must be exercised in accordance with the Constitution. This requires a balance between respecting residents’ right to freedom of choice and protecting public health.
Freedom of Choice
During his announcement, PM Gaston Browne made no reference to the constitutional rights and freedoms which allAntiguan & Barbudan residents enjoy. However, these residents enjoy the rights to freedom of choice and personal privacy under the Constitution. The Jamaican case of Robinson v AG of Jamaica [2019] JMFC 04 offers important guidance insofar as the Court observed that personal privacy concerns arise when the government seeks to intrude the body of the [resident] and that “in free and democratic societies, [residents] have a right to be left alone and to retain control over their body, mind, heart and soul.”
Likewise, PM Gaston Browne omitted to say whether residents would be directly or indirectly forced to get vaccinated. Nevertheless, the case of R v Big M Drug Mart Ltd [1986] LRC (Const) 332 is instructive on this point. In this case, the Court acknowledged that freedom means the absence of force or coercion, and if a person is forced by the government to do something which they would not otherwise have done or chosen, they are not acting on their own volition, and they cannot be said to be truly free. Critically, the Court stated that force includes blatant forms of compulsion such as directorders to act as well as indirect forms of control which determine or limit alternative options available to others. Indeed, this case shows that irrespective of whether the force to get vaccinated is direct or indirect, such a measure will inevitably adversely affect the residents’ right to freedom of choice.
Freedom of Choice vs Protecting Public Health
Caribbean residents must appreciate that their constitutional right to freedom of choice is not absolute. Therefore, in a public health crisis like COVID-19, the right to freedom of choice may sometimes have to be balanced against the need to protect public health. This is where the issue of proportionality arises. A government can only make COVID-19 vaccinations mandatory if these mandatory vaccinations are shown to be “reasonably justifiable” for the purpose of protecting public health. At first blush, this may seem like an easy task, but it is not so simple. A governmental measure will only be deemed “reasonably justifiable” and constitutional if it is the least restrictive/intrusive means being used to achieve the objective the government is pursuing. In other words, if there are other less restrictive/intrusive means at the government’s disposal, which will achieve the same result, mandatory COVID-19 vaccinations will not be deemed “reasonably justifiable” to protect public health.
A few weeks ago, the European Court of Human Rights ruled in Vavřička v Czech Republic [2021] ECHR 116 that a compulsory child vaccination programme for schools is necessary in a democratic society, and, therefore, it is not a violation of children’s human rights. This court ruling would be unsurprising for us in the Caribbean since, generally speaking, regional students are expected to receive specific vaccinations before they can attend school. But what about making COVID-19 vaccinations mandatory for an entire population? Is this “reasonably justifiable”, proportionate or even practical? If a government announces that COVID-19 vaccinations will be mandatory for an entire population, it will essentially be sending the message that residents are not allowed to exist in a society unless they are vaccinated. Obviously, this can be problematic. President of the Industrial Court in Trinidad & Tobago, Deborah Thomas-Felix, said that it cannot be that an entire population is forced to take an injection, whether it is for the greater good or not because human rights are involved.
As intractable as COVID-19 may seem, Caribbean governments should be certain that we have reached a stage in the Caribbean where mandatory vaccination is the only viable option to curb the spread of COVID-19. Have we reached a stage where lockdowns, curfews and the strict observance of protocols are no longer effective in controlling the spread of the virus? This factor appears to have been taken into account by the Barbadian Minister of Health & Wellness, Lt. Col. Jeffrey Bostic, who stated that although the Government of Barbados can make immunisations mandatory for COVID-19, such a measure will not be implemented as yet since it is not necessary at this point in time. Minister Bostic also noted that strict adherence to protocols is the key to fighting COVID-19 and that people should be “encouraged” to get the jab, not forced.
Freedom of Choice vs Freedom of Religion
PM Gaston Browne also stated that members of the Rastafarian faith will be exempted from mandatory COVID-19 vaccination. If governments decide to make COVID-19 vaccinations mandatory for residents except Rastafarians, this can create the impression that Rastafarians’ right to freedom of religion outweighs or deserves greater protection than other residents’ right to freedom of choice. Can Rastafarians’ right to freedom of religion be regarded as more important than other residents’ right to freedom of choice when both constitutional freedoms are being counterbalanced, not against each other, but against the public good, i.e. the protection of public health? If such an exemption is granted, governments must be ready, willing, and able to prove why it is “reasonably justifiable” to respect the rights and freedoms of Rastafarians while simultaneously curtailing the rights and freedoms of other residents. Adopting this course of action, clearly, would open the Pandora’s box.
Upholding the Constitution during COVID-19
Again, although governments have the power to make COVID-19 vaccinations compulsory, this power must be exercised constitutionally. As stated by the Court in Roman Catholic Diocese of Brooklyn, New York v Governor of New York 592 U.S. (2020), “the Constitution does not and cannot go on sabbatical during the COVID-19 pandemic”. Yes, we all have a moral duty to aid our governments in the ongoing battle against COVID-19. No one should seek to undermine their diligent efforts to safeguard public health and safety. On the other hand, however, we also have a civic duty to remind and encourage our governments to do what is constitutionally required. Even amidst the COVID-19 pandemic, let us never forget that we live in constitutional democracies.
Rico J. Yearwood is the Head of the Public Law Department at CARICOM Attorneys-at-Law and Johanan L. Lafeuillee is the Principal Lawyer and Managing Partner at CARICOM Attorneys-at-Law.
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