Fundamental liberties and the anti-vaxxer

 

From Philip TN Koh

There are views now being promoted that any prescriptive regulations or employment requirements for vaccination status on individuals militates against the liberty of a person to choose not to be vaccinated. And further that this is unconstitutional.

The protection of freedom of religion in the Federal Constitution offers a good test case on issues surrounding the anti-vaxxers’ rhetoric and contrary to the value of fundamental liberty.

We have empirical data (both globally and domestic) that religious gatherings can give rise to Covid-19 clusters that can have a devastating impact on the community.

Certain religious groups that reject scientific clinical-based evidence also reject vaccination on erroneous grounds that it manipulates the human genome and therefore constitutes “playing God”.

Does a religious believer who holds such views – that gatherings cannot be proscribed or vaccination be enjoined by law – be permitted to invoke Article 11?

The courts had wrestled with this issue when the Jehovah’s Witnesses community refused to allow blood transfusions on the grounds that it contravenes the Mosaic Levitical prohibitions.

The courts had taken the view that the state had the duty to protect, for example a child, and that such a community can be subject to hospital intervention — despite the objections of the parents.

A novel argument has also been circulated that Article 8 (that “all persons are equal before the law and entitled to the equal protection of the law”) has the consequence that a person who resists such vaccination is not accorded equal protection if there are prescriptive regulations for that person in resuming employment or to enter retail premises where the public and other fellow employees are present.

Such arguments are unsustainable.

For the religious sectarian who holds the belief that to be vaccinated goes against their religious convictions, Article 11 (5) demarcates the parameters of their liberty to so decide.

As for the claim that proscriptions to employment and freedom to enjoy amenities of retail outlets for the non-vaccinated contravene Article 8, that too is unsustainable based on a constitutional reasoning.

Any discrimination of such resistors to Covid-19 vaccination is based on a “rational nexus“ and the courts in all jurisdictions have upheld laws and regulations that are posited and justifiable on such grounds.

A liberal democratic state is not hapless to legislate for public good and not all restrictions (so long as they are proportionate) on individual liberty of choice can be said to be unconstitutional - FMT

Philip TN Koh is an adjunct professor at Universiti Malaya.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.