OP-ED: Government’s incremental transition to mandatory vaccination raises legal concerns

Aug 09, 2021 News

---

By Carlos Gonsalves

Kaieteur News – As instances of COVID-19 variants continues to surge, multiple countries are beginning to contemplate the institution of mandatory COVID-19 vaccines for their citizens. The consideration of vaccine mandates by policymakers in Barbados, Saint Vincent and the Grenadines, Antigua and Barbuda, France, Italy and the USA has seen hundreds of thousands of persons protesting the mandate and Guyana now joins the fray as a multitude of local organisations and entities have already expressed their disdain over the incremental transition to a truly mandatory COVID-19 vaccine.
At the beginning of the year, when Guyana was now receiving its COVID-19 vaccines, multiple government officials, including the President, were adamant that the COVID-19 vaccine was not mandatory for Guyanese, and that each person could take it of his or her own volition. However, recent statements and actions by the Government have come into direct conflict with the government’s previous position. The government has most recently begun its rollout of vaccination mandates for various sectors including the military, public transportation providers and as a requirement to access certain services such as Government buildings and health care.
Guyana’s Minister of Health, Dr. Frank Anthony had previously said that the Government would make a decision on the matter of mandatory COVID-19 vaccination in due course, noting that the Government was paying close attention to the evolution of the virus in order to ensure that its vaccination response is adequately adjusted. The Minister justified his response by stating that with the fast-spreading Delta variant, several governments around the world have moved to mandatory vaccination.
He had also noted that several private sector companies in Guyana have instituted mandatory vaccination within their organisations: “Here, there’s a lot of the private sector entities that would want to make their work environment safe and they’re taking those precautions, so they’re giving their employees the option that either you go get the vaccine or you have to be tested on a regular basis for them to verify that the person is not infected with COVID.”
Subsequent to this utterance, however, since the August COVID-19 measures were gazetted, various government agencies have begun to require that their staff be vaccinated as a precondition for continued gainful employment, with those refusing being refused entry to the workplace and their pay withheld. This was the case with the Marine Administration Department (MARAD) who recently sent home 50% of their unvaccinated staff, additionally, MARAD had made it known that speedboat operators and captains who refused to be vaccinated could potentially lose their licence. According to the Minister of Health, the totality of these new implemented measures is “one way of…encouraging a safe environment.”
The Government’s recent move has gained widespread criticism from the citizenry, especially with regard to the restriction on access to public healthcare, which is enshrined under Article 24 of the Constitution of Guyana. Article 24 states that, “Every citizen has the right to free medical attention and also to social care in the case of old age and disability.” At first instance, one might consider that a mandatory COVID-19 vaccination requirement is protected under Article 25 of the Constitution, which states that, “Every citizen has a duty to participate in activities designed to improve and protect the health of the nation,” however, such a contention is not automatically true. Additionally, consideration must be given to Article 145, which speaks to the freedom of conscience.
Article 145 states, “Except with his or her own consent, no person shall be hindered in the enjoyment of his or her freedom of conscience, and for the purposes of this article the said freedom includes freedom of thought and of religion, freedom to change his or her religion or belief, and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his or her religion or belief in worship, teaching, practice and observance.” However, a caveat to this is enshrined in Article 145, Section 5, subsection (a) 1 which states interalia that the abovementioned right can be contravened in pursuance of something that is reasonably required in the interest of public health. The pertinent question in this regard is if mandatory vaccination is reasonably required in the interest of public health.
Most recently, the Leader of the Opposition, Joseph Harmon, has issued a statement where he made known his intention to debate the topic of mandatory vaccination in Parliament. In the release, he stated that, “I as Leader of the Opposition intend to ask the Speaker of the National Assembly to allow a discussion on what is obviously a matter of urgent, definite public importance. That is, Mandatory Vaccination and the undue restrictions imposed on Guyanese by virtue of the COVID-19 gazetted measures published on July 29, 2021 and which took effect on August 1, 2021. These measures severely hamper the ability of the people of Guyana to access public and government services.”
In light of the widespread global resistance against the COVID-19 vaccine mandate, the apparent intention of the Government of Guyana to introduce such a mandate locally raises several potential legal concerns. This primarily manifests due to the combination of the effects of an outdated health legislation and the gazetted orders which, when taken in tandem allows for criminal sanctions to be imposed on anyone found being in breach of the Emergency COVID-19 guidelines gazetted on July 29, 2021.
Section 20 of the COVID-19 emergency measures that were gazetted on the 29th of July speaks to the provision of sanctions for the breach of any of the measures contained within the order. Section 20 states that “any person who fails to comply with any of these measures commits an offense under section 152 and is liable on summary conviction to the penalty provided under that section.”
Section 153 of the Public Health Ordinance provides that: “Any person who contravenes any of the provisions of this ordinance, or who fails, neglects or refuse to execute any work or to do anything which he is required to , by virtue of any of the provisions of this ordinance or of any order or notice served upon him by any officer of the Board or the local sanitary authority by virtue of this ordinance, shall be guilty of an offence and shall, unless some other penalty is provided, therefore be liable to a penalty not exceeding fifty dollars, or, in default of payment thereof, to imprisonment with or without hard labor for any term not exceeding two months.”
These two provisions, taken together, clearly demonstrate intent on the part of the government to impose a criminal penalty as a sanction in the event of noncompliance, essentially warranting the question of if such a sanction is reasonable and proportional to the desired end goal.
On the topic of why criminal sanctions as a consequence of noncompliance can be considered arbitrary and an abuse of state powers, it becomes relevant to examine mandatory vaccine policies around the world.
In a July 2020 report entitled ‘Global assessment of national mandatory vaccination policies and consequences of non-compliance’ it was found that of the 105 countries with evidence of a national mandate, only 11 imposed some sort of penalty on liberty. This means that Guyana is the 12th country to impose some criminal penalty for non-compliance with a vaccine mandate.
In 2020, this issue of mandatory vaccination for COVID-19 was legally challenged in Brazil after a law allowed authorities to require immunisation for COVID-19. In December 2020, the court ruled that the provisions enabling mandatory vaccination are constitutional in principle. The court accepted that individual autonomy cannot be used as a trump against public health measures that promote the constitutionally protected right to health.
However, the Court clarified that a concrete policy mandating COVID-19 immunisation needs to satisfy certain requirements. Non-compliers may be sanctioned, but in no circumstance may they be forcefully vaccinated, as this would breach their individual autonomy, bodily integrity, and human dignity; the decision to make vaccination mandatory must be informed by scientific evidence regarding the vaccines’ safety and efficacy and by strategic health information (such as epidemiological data and the existing policies to control the disease); there must be free and universal access to the COVID-19 vaccines; and the policy must respect human rights and satisfy the reasonableness and proportionality tests.
Along these lines, it should be noted that the current mandatory vaccination campaign in Guyana leaves much to be desired, as it appears to be aimed at forcing the public to be vaccinated, via several sanctions that are not proportionate to the desired outcome. Several of these sanctions directly affect the livelihood of portions of the Guyanese society and fail to take account of legitimate reasons beside vaccination hesitancy, as to why persons would opt to refuse the vaccination. The restriction of access to public health services by unvaccinated people especially the elderly, unless in the case of an emergency can be seen as extremely discriminatory and unjust, and it warrants debate as to whether it would fall under the ambit of public health to restrict access to public healthcare for a vast portion of the Guyanese population.
In a April 2021 report entitled “COVID-19 and mandatory vaccination: Ethical considerations and caveats”, The WHO stated that despite COVID-19 vaccine mandates backed by sanctions of varying severities becoming a common occurrence, the World Health Organisation does not support the mandates in their current form, instead saying that education of the vaccine and accessibility should be given priority.

---

---