#BTColumn – The Constitutionality of mandatory vaccine

Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados TODAY.

by Anthony D. Francis-Worrell and Graeme A. J. Brathwaite

Following the arrival of 100,000 doses of the Astrazeneca COVID-19 vaccines to Barbados, the Rastafarian movement as well as other religious groups and factions of society have made it abundantly clear that they are strongly against the COVID-19 vaccination and would not be taking part in the inoculation process.

The Government has already stated that citizens will continue to enjoy the right to decide whether or not to take the  COVID-19 vaccine.

Nonetheless of interest to many is whether the Government can legally make the COVID-19 vaccine mandatory for all. Let us explore this together.

Section 48(1) of the Constitution of Barbados allows Parliament to make laws for the peace order and good government of Barbados.

However, this is subject to the rights of a citizen to life and liberty, the protection from inhuman treatment, freedom of religion and freedom of conscience.

Specifically, Sections 19 and 20 of the Constitution give citizens the right to freedom of thought, religion, belief and the right to enjoyment of freedom of expression inclusive of holding opinions. And, these rights are in turn subject to any law which is “reasonably required in the interests of defence, public safety, public order, public morality or public health”.

It logically follows that the government can indeed make the COVID-19 vaccination programme mandatory for all citizens. However, the challenge is for government to illustrate that any law mandating the vaccine is reasonably required in the interest of public safety or public health.

The issue of what would be “reasonably required in the interest of public safety or public health” was discussed in the Barbados Court of Appeal in  Weel v The Attorney General and the Dental Council (2009).

In this case the Dental Council took issue with an advertisement placed in a local magazine by a registered dental practitioner which was in breach of the Dental Registration Rules.

The Appellant argued that the law limiting his ability to advertise infringed on his constitutional right under Section 20 of the Constitution.

In addressing this issue, the Court determined that the Dental Registration Rules did not contravene Section 20 of the Constitution on the basis that its purpose and objective was for the preservation of public health and interest as the purpose of the rule was to ensure that the public received relevant and appropriate information with regard to dentists. The Court of Appeal in considering the limit placed on the rights granted under section 20 of the Constitution held that:

“Two criteria must be satisfied to establish that a limit on a charter right is reasonable in a free and democratic society. First, the objective which the limit is designed to achieve must be of sufficient importance to warrant overriding a constitutional protected right. Second, if such an objective is established, the invoking party must show that the means chosen to achieve the object, that is the limit itself is reasonable and demonstrably justified…”

Based on the foregoing authority two questions must thus be considered by the government before making the COVID-19 vaccination mandatory:

1. Does the mandatory imposition of a COVID-19 vaccination have a legitimate objective?

2. Would the means used (i.e. the imposition of a mandatory vaccination) to achieve that objective be proportionate to the objective?

At present, the Government would have little difficulty in showing that a mandatory vaccination programme has a legitimate objective. This is against the backdrop that the COVID-19 virus has had a global deleterious and fatal impact. Experts in the area have recommended that to combat these effects, the vaccination is needed.

Regarding the second question, the government would also have little difficulty in satisfying this. In the early stages of the COVID-19 pandemic there were many scientific recommendations that all persons should observe social distancing and wear a mask to reduce the risk of the spread of COVID-19.

However, after receiving that advice almost a year ago, we are still seeing a rise in cases both locally and internationally. It can be safely inferred that the early recommendation of social distancing and mask wearing did not bring about the desired results.

This has thus prompted international scientific bodies to develop a vaccine which has, based on anecdotal reports slowed the spread of the virus and saved lives.

While we accept that the government can legally impose the COVID-19 vaccine, such action could quite possibly amount to political suicide.

Moreover, the imposition of a mandatory vaccine for all citizens must raise the question as to what legal recourse is open to a citizen who suffers medical harm as a result of such action.

Anthony D. Francis-Worrell LL.B (Hons) and Graeme A. J. Brathwaite LL.B  (Hons) are attorneys-at-law with Versus Legal.