Revisiting the Issue of Mandatory Vaccination

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by Charlesworth Tabor, BA, MSc., LLB, LEC

The Covid-19 pandemic which has placed a stranglehold on countries all over the world from the beginning of the year 2020, following the outbreak of the mystery illness alledgedly emanating out of Wuhan, China in late 2019, has engendered the implementation of all sorts of regulations and protocols in an effort to combat the pandemic.

 

While Antigua and Barbuda, and indeed the world, has become accustomed to the Covid-19 protocols such as the wearing of mask, social distancing and hand washing, countries are now mulling the proposal of introducing mandatory vaccination as a further methodology to fight the covid-19 pandemic.

 

The thinking of course underlying the need for mandatory vaccination is that by implementing such a policy, the critical number of the population being vaccinated would be attained. This is premised on the assumption that if about 70% of the population is vaccinated the existence of Herd Immunity would materialize and thus the likelihood of transmission of the disease to others would be considerably reduced, since the probability of infected and non-infected persons coming into contact with each other would lessen.

 

The burning issue that pervades the topic of mandatory vaccination is whether it would be lawful for the government to embark on that course of action. More importantly, the fundamental question is whether such an action would be consistent with the Constitution.

 

Now, as we are all aware the Constitution is the supreme law of Antigua and Barbuda. The question to be answered, therefore, is whether the Constitution makes allowance for the imposition of mandatory vaccination by the government.

 

Mandatory vaccination as the term itself implies, involves an encroachment on the personal liberty and integrity of the person without consent. While section  5 of the Constitution speaks to the “protection of the right to personal liberty”, it also outlines certain cases where derogations from that right would be permissible. One such case would be “for the purpose of preventing the spread of an infectious or contagious disease” as is stipulated in section 5 (1) (h). More importantly, section 16 of the Constitution clearly gives Parliament the power to make laws during an emergency which derogate from  citizens normal fundamental rights and freedoms.

 

The government has already declared by Statutory Instrument No. 15 of 2020 that covid-19 is a dangerous infectious disease. The next step that would be required to facilitate the imposition of mandatory vaccination is the enactment of legislation to authorize it. The enactment of such legislation would not be inconsistent with the Constitution since the Constitution would have sanctioned the derogation from the fundamental protection of the right to personal liberty. Yes, the validity of such legislation could be challenged in the Courts, but that would be a futile exercise since it would be difficult, if not impossible, to establish the unconstitutionality of the legislation.

It would be useful at this stage to place mandatory vaccination within an international context  and assess the case law with respect to it. Three of the most significant cases regarding mandatory vaccination are Jacobson v. Massachusetts(1905), Solomakhin v. Ukraine (2012) and Vavricka and Others v. Czech Republic (2021). In the Jacobson case the United States Supreme Court upheld the authority of States (in this case Massachusetts) to enforce compulsory vaccination laws. The Court also noted that individual liberty is not absolute and is subject to the power of the State. This case has been used as a precedent in justifying facemasks and stay-at-home orders by governments. In the Solomakhincase, the European Court of Human Rights, while holding that mandatory vaccination interferes with a person’s right to integrity protected under article 8 of the European Convention on Human Rights (ECHR), concluded that such interference may be justified if considered a ‘necessity to control the spreading of infectious diseases’. The latter reasoning of course being quite similar to section 5 (1) (h) of our Constitution. In the more recent Vavricka case, dealing with childhood vaccination, the European Court on Human Rights in a vote of 16 to 1 held that the mandatory vaccination of children was compatible with the ECHR.

 

While these case laws would be persuasive and not binding on our judiciary, Antigua and Barbuda is a signatory to the Universal Declaration of Human Rights and the International Convention of Civil and Political Rights (ICCPR). On being a signatory to these International Agreements, Antigua and Barbuda would be bound by the Articles of the Agreements.

 

I will now turn to the ICCPR in the context of this discussion on mandatory vaccination. My reason for doing so is twofold. Firstly, there is a video circulating on social media where a Pastor has proclaimed that mandatory vaccination is contrary to article 7 of the ICCPR. Secondly, this contention was also in the news last week when an Attorney also advanced the same position of mandatory vaccination being contrary to the ICCPR.

 

Article 7 of the ICCPR states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. It is the latter sentence that is germane to the discussion and is the basis for the contenton that mandatory vaccination is a breach of the ICCPR  according to the Pastor and Attorney.

 

Article 4.1 of the ICCPR notes the proviso that “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”.

 

However, article 4.2 of the ICCPR makes the declaration that “No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision”. It is the non-derogability of article 7 that the Pastor and Attorney are relying on to support their contention that mandatory vaccination would be a breach of the ICCPR.

 

Now, here is where my position is diametrically opposed to that of the Pastor and Attorney. I do not subscribe to the view that mandatory vaccination is a breach of article 7 of the ICCPR. The question that one has to answer at this juncture, is whether implementing a mandatory vaccination process is tantamount to medical or scientific experimentation.

 

To be clear, what article 7 objects to is the subjection of a person to medical or scientific experimentation without their consent.

 

What is medical experimentation? The Encyclopedia of Genocide and Crimes Against Humanity defines medical experimentation as “the testing and evaluation of a new drug or procedure on a human person in order to gain generalizable knowledge that can be used for various purposes”. In the case of the development of the covid-19 vaccines what was the process? The covid-19 vaccines started with laboratory research, which was followed by animal studies and then human clinical trials. These human clinical trials are conducted in three phases and must provide scientific evidence to demonstrate that the benefits of the vaccine far outweigh any risks. In phase 1 the clinical trials involved a few dozen people to determine if the vaccine is safe, the best dosage and possible side effects. In phase 2 a few hundred people were involved again to determine how well the vaccine works and also its safety and side effects. Phase 3 involved a larger study comprising of thousands of people who were given the vaccine as against a “control” group given a placebo. Again, the data is analyzed to determine the safety and effectiveness of the vaccine in a larger population.

 

Now, this is the process that can be described as medical and scientific experimentation and in this process of trials the consent of all the volunteers would have been obtained. Once the evidence shows that the vaccine is safe, effective and does very little harm it is then approved for production and general public use.

 

To say, therefore, that some one taking the vaccine today, without their consent, is being subjected to medical and scientific experimentation, would be a quantum leap from the methodology and modalities of  medical and scientific research. On that basis, I would posit that no Court faced with that question would conclude that taking the vaccine today is a breach of section 7 of the ICCPR.

 

Finally, while I have submitted that mandatory vaccination would not be unconstitutional, it is my view that mass public education and moral suasion should be employed to convince people to take the vaccine, rather than embarking on a mandatory policy.

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30 COMMENTS

  1. That is a well thought out letter. Like many others, I enjoyed reading it. Mandatory vaccination is probably not unconstitutional, but I still prefer the voluntary approach. Quite simply it may well be nothing less than a choice between life and death. Choose LIFE

  2. What “Pastor” is Tabor referring to? Surely no real pastor would be against the vaccine. Maybe some wannabe with questionable credentials, but not a true pastor.

  3. Nonsense. None of these vaccines have full authorization, just emergency use authorization. Why? Because none of them have long term data on their safety. That data is normally collected over a period of years but these vaccines only took months to create and test.. This is not trivial because there are risks that can only be detected in that long time frame. For instance, one of the risks that has to be assessed over a period of years is the risk of autoimmune disease years after injection. So to say that forcing a one year old vaccine on folks when they don’t have the usual five to ten years of long term data that normally accompanies full use authorization and deployment is absolute nonsense. Because they lack long term data, they’re only now realizing side effects such as blood clots and myocarditis. Worse still, these vaccines are not actually designed to combat the new and future variants that are replacing the original version that was the actual target of the vaccines. THAT’S what makes this experimentation. Anyone who absolutely wants to take emergency use vaccines should do what’s best for them as an individual. But let’s not pretend that these vaccines are at the same safety levels as all previous vaccines released with solid long term data backing up their safety profile.

    • Fully agree. We need data from long-term studies. If anyone chooses to be a guinea pig or lab rat during these preliminary trials, then feel free to do it at your own risk, but please don’t force me to put a foreign substance in my body that lacks a proven safety record.

    • Exactly! The real results of this global mass vaccination campaign will not become fully evident until five to ten years down the road. There are many who are not merely or solely concerned about the short-term side effects. However, that is where the medical community and national leaders appear to be diverting the public’s attention . . . and even what is occuring in terms of the short-term side effects is questionable. Also, how can we really talk about education of the public when any information that is perceived to be ‘counterproductive’ to a mass vaccination effort is being supressed?

  4. You said that “One such case would be “for the purpose of preventing the spread of an infectious or contagious disease” as is stipulated in section 5 (1) (h)”
    My question to you Mr Tabor….Does any of the vaccines prevent the spread of covid 19? I awaits a simple yes or no answer. If your answer is no then your entire case goes out the window

    • 007 I am not a doctor but I am sure you have heard of the principle of herd immunity. What that principle implies is that the spread of the virus would be reduced since transmission would be more difficult the greater the number of people that are vaccinated. Also, from what I have heard and read while the vaccine does not have 100% efficacy in preventing the spread, it does prevent one who has contracted the virus from becoming extremely ill. To give you a yes or no answer, I would say yes the vaccine does prevent the spread but it is not 100% efficacious. As I said a medical doctor is better able to address your question.

      • The vaccine efficacy is against hospitalization and death not against the spread…so please stop spreading lies. Your position for mandatory vaccination is base on the prevention of the spread of covid 19…..SO MY LEARNED FRIEND ANY COURT WOULD THROW OUT YOUR CASE AS UNCONSTITUTIONAL

  5. Mr Tabor good article. However, I keep on hearing the point of MASS EDUCATION not only by you but other locally as if it is the default word to cast blame by those who are yet to be vaccinated. Can someone advise as to what this should entail. From my vantage point there remains a plethora of information in all sort of format both locally, regionally and internationally given covid is a global issue. So what more education is needed to convince a person that they should get vaccinated or not? What more do they need to hear and more so from whom?

  6. Wow! Is that the normal JUST SAYING or an imposter. I say that because my articles usually make you yawn. Anyway, thanks for the commendation.

    • No imposter…Again it is a good opinion piece. What I wish for you to weigh in on is the issue of education. I am at pains to believe that the education is lacking. I know within our local sphere there may be concerns regarding the messenger(s) which unfortunately clouds the message.

      • JUST SAYING I get the point you are raising re education. However, despite the fact that we now live in a global village and social media is an avenue for the dissemination of information world wide instantaneously. I still believe that our government should have had a relentless campaign on all media avenues. I know that we are still adhering to all the covid protocols, but even village meetings around the island would have been helpful. Despite all the devices for mass communication, their are many people who prefer the face to face contact and would be more easily convinced through this method. I am not really into FB and other social media platforms a great deal, but I am sure if you assess the use of those platforms by the government to get the education out to convince people to take the vaccine, you might find that the use of those platforms was limited. Dr. John when he appeared on ABS TV (and other doctors such as Dr. Thwaites) made an impact and should have been used more strategically.

        • Question Mr Tabor…Does the vaccine PREVENT the spread of covid 19? IT DOES NOT. Your argument under section section 5 (1) (h) of the constitution does not apply…because a person who is vaccinated can still get infected and spread the disease covid 19.

    • Tabor usually your articles are politically motivated and against whatever it is the PM said. But you already made your point of agreeing with another writer about the same thing. So I ask myself why you had to result to pen this in an article of your own calling Revisiting The Issue of Mandatory Vaccination.
      https://antiguanewsroom.com/mandatory-vaccination-against-my-human-rights/
      I wonder if you knew the PM had voiced the same opinion a week before and so did Senior Lawyer Tony Astaphan from Dominica.

  7. vaccine is not fda approved meaning that all that took the vaccine cannot question the top vaccination producers and shareholders=business about future damage done. a one year test and analysis cannot determine what will happen in 5 to 10 years

    • Thank you. That is my concern, what will happen in the next 5 to 10 years to those who are vaccinated seen as it’s still in its trial stage.

  8. FROM THE SIDELINE as I have said before you never cease to amaze me. I have heard the PM in a news item said that making vaccination mandatory is not unlawful. He did not give his reasons for saying so. He is not a lawyer. I have provided the legal and constitutional basis why mandatory vaccination would not be unlawful. You should be celebrating the fact that I am actually agree with something the PM said. Anyway, the fundamental reason for my article, which perhaps went over your head, was to refute the contention of some that mandatory vaccination would breach international human rights conventions and in particular the International Convention on Civil and Political Rights (ICCPR). The earlier article by Jmoul Francis addressed the the issue of the legality of mandatory vaccination, my article went further to show that mandatory vaccination does not breach ones human rights. FROM THE SIDELINE I hope you now have a better understanding of my article and its focus.

    • I guess you didn’t listen to the PM then. Because he did state the constitution. And even Senior Council Astaphan educated us on the constitutional part of that. For you to say that the PM is not a lawyer and therefore doesn’t know the law is very stupid. He is more than that. He is a law maker. And Tabor you have been wrong on law many times. So I would not just take your legal opinion as gospel.

  9. FROM THE SIDELINE I must confess that JUST SAYING has exhibited a greater understanding and appreciation for the article. I thought when the article is posted on ANR I would be getting plenty banging from JUST SAYING and his usual “yawn”. Looks like you need to take a page from JUST SAYING book and stop criticizing for criticizing sake.

  10. @Charles Tabor…yes, your opinion piece is well researched and written, to make your point.
    Now, since the medical professionals to include WHO, CDC, PAHO etc have decided they COVID-19 is now the new annual flu, and the fact that many of these vaccines are for EMERGENCY use, where will you or others like you stand, if the flu’s of the future require the same form of ‘herd immunity?’
    Will MANDATORY VACCINATION be the topic of discussion, year in year out?
    Remember, Faucci and his crew and WHO have already declared, that the #Best of the COVID-19 mutants are yet to be on the warpath.

  11. FROM THE SIDELINE you state things that are so trite it is amazing. So because you are in Parliament and is part of the process of making laws, does that mean you are trained in law to understand the technicalities and methods of interpreting the law. For your information it is the Drafting Department of the Ministry of Legal Affairs that formulate laws and not Gaston Browne. Law like any other aspect of life is open to interpretation. Wasn’t your Senior Counsel Astaphan woefully wrong about the Treating case in Dominica? I certainly does not have to listen to Gaston Browne about anything to do with law, whether he is a law maker or not. You need to really try to make more sense with your comments and do not comment for commenting sake.

  12. no photo to accompany the article so we can put a face to the author? You gave Makeda Michael her photo-op, why not Mr. Tabor? Sexist much?

  13. FROM THE SIDELINE I just had a look at ANR before getting ready for work and since I know you like to focus on trivia and not substance, I will correct the grammatical error in my last post before you drag me over the coals for it —— “I certainly do not have to listen to Gaston Browne about anything to do with law …..”.

  14. First, The JAB they are talking about is NOT a vaccine by any definition accepted by rational people.

    Second, this mRNA shot is like not other ‘vaccine’ in history. It is an EXPERIMENTAL DRUG that is in phase 3 of testing which won’t be completed until 2023.

    Third, the EMERGANCY DECREE was unconstitutional because there never was a true pandemic.

    In recent years and months, the long-held definitions of three words all changed, with immense ramifications for public health policy in the midst of COVID-19

    WHO’s original definition of a pandemic from May 1, 2009, specified simultaneous epidemics worldwide “with enormous numbers of deaths and illnesses”; this definition was changed in the month leading up to the 2009 swine flu pandemic, removing the severity and high mortality criteria

    COVID-19 vaccines are technically gene therapies and did not meet the definition of vaccine, until Merriam-Webster’s vaccine definition was recently changed to — conveniently — include a description of the experimental gene therapies

    From June 2020 to November 2020, WHO changed their definition of herd immunity to imply that it’s a concept that only applies to vaccination, not naturally acquired immunity gained from prior infection

    The implication for society is that by putting out this false information, they’re attempting to change your perception of what’s true and not true, and perverting science in the process

    • Word! I have never seen so many medical definitions being changed in such a short period of time.

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