Fewer rights for the unvaccinated


With Omicron, the government task force raised NCR to Alert Level 3 last week. The Metropolitan Manila Development Authority (MMDA) then said the mayors had “agreed” to prevent unvaccinated people from leaving their homes.

On Thursday evening January 6, the president ordered local government units to “hold back” unvaccinated people, adding that civilians can be “deputies” to enforce this. If they refuse to stay put, they will be arrested. Friday, January 7, the president’s spokesperson clarified that this order to restrict unvaccinated people applied to the whole country “regardless of the level of alert”.

The president explained his logic this way: “I said that the government must propose measures to protect the public interest, health, order, safety. Because this is a national emergency, it is my position that we can narrow down. Based on this rationale, it appears to be just the latest iteration of the president’s lazy legal analysis of governance:

1. identify a group (ie drug addicts, activists, journalists, communists);

2. word “public order / safety / security”;

3. decree that the target group is entitled to fewer rights;

4. proceed to oppression. Inciting civilians to confine their neighbors makes this latter “variant” worse than its predecessors.

Certainly, the instinct of self-preservation triggered a favorable reaction to the MMDA announcement. But later that night, as I read a heated discussion of the issue in a panel discussion involving some of the most learned people in our profession, I realized that the issue was not as simple as personal logic. of the president suggests it. There are a lot of questions to navigate.

Restriction on liberty

To begin with, it is not just a question of “limiting mobility”. Confining people inside their homes is a restriction of freedom. Although it is not exactly an imprisonment, the deprivation remains rather burdensome. House arrest is always a form of punishment.

On that note, confining people with COVID-19 to their homes seems justifiable – the virus should not be able to circulate and spread. The unvaccinated, however, present a more difficult situation. They are healthy individuals, indistinguishable in terms of the viral load of the vaccinees. Unlike a few months ago, vaccine makers and governments aren’t as sure that vaccines are stopping the spread of the virus. If vaccinated and unvaccinated can spread it, why do we only “punish” those who refuse a vaccine? It appears the government will have to be very specific in terms of shaping the “compelling state interest” (a constitutional requirement) to justify their containment.

Is it the same as malls or restaurants refusing to admit unvaccinated people? Not enough. Private establishments have some control over who enters their premises. There is a world of difference in letting people leave their own homes or face arrest. Is vaccination similar to other impositions like face masks? Asking people to partially cover their face with a piece of cloth seems less of a burden than asking them to accept a foreign substance into their body. Is it important that the discriminatory treatment is only temporary? Well, what does temporary mean? Until there is another surge or some other variation?

On the other hand, by what right will the unvaccinated challenge these restrictions? Personal choice? Body autonomy? Those who insist on bodily autonomy argue that agreeing to be vaccinated against COVID-19 means that you are agreeing to receive a foreign substance inside your body. This substance stays there. There is nothing more intrusive than this. Add the fact that the makers of this foreign substance have been excused (by Bayanihan Law) from any liability.

Difficult climb

Local courts that face these challenges will need to determine whether these permutations of the “right to choose” are as important in our society as they are in Western societies. A difficult climb. Consider that unlike the United States, local “pro-choice” advocates have failed to decriminalize abortion. Perhaps an objection to the vaccine based on religious beliefs? If ever, these would be closely related to some of the challenges against the HR law years ago. (By the way, these religious objectors prevailed.)

The government could wonder if this choice is really “a personal matter”, in particular in view of its effects. Does the unvaccinated burden come from themselves? Our front lines who suffered for two years from crowded hospitals may not agree.

Additionally, the government can cite its data that unvaccinated people tend to have significantly worse complications than vaccinated people. Worse outcomes lead to more hospitalizations, which puts more strain on resources. With limited resources, the government can frame this regulation as a matter of resource allocation.

Speaking of resources, what about those who believe that government and employers have a duty to provide a safe working environment? How will their demands be balanced with those of those who refuse to be vaccinated? Will those who comply with government mandates be placed in a less desirable position just to accommodate those who insist on refusing?

Discriminatory treatment?

In constitutional litigation, framing the issue to be submitted to the courts is the most crucial step. If the unvaccinated see this as a case of discriminatory treatment, the case might hinge on whether there is a legitimate difference between those who agree to take the risk and be vaccinated and those who refuse. Does this personal choice then become a valid reason to discriminate against those who refuse? By discrimination what we really mean (in constitutional law) is that those in the group have fewer rights. So, do those who choose to refuse a vaccine have fewer rights than those who accept it? In other words, do our personal health choices now result in belonging to an underprivileged class of citizens?

The crux of the matter could lie in the undeniable fact that we are ALWAYS in the midst of a pandemic. Constitutional affairs do not work in a vacuum. Context matters (at least for realistic jurists). Millions have died, thousands are suffering, and the virus is not yet extinct. (Regardless of the careless remarks of a priest-biologist, Omicron is NOT “a blessing.”) There might be more room to debate policy choices once we’re out of the woods, but should we be? do while we’re stuck in the swamp?

What matters is that we avoid the President’s lazy analysis or reckless invocations of phrases such as “the needs of the many outweigh the few.” Constitutional rules apply at all levels. And while we find ourselves today in the “majority view” (pro-vax), we may soon be in the minority on another issue (ie national identity documents). The past five years have taught us the folly of giving in to the quick fixes proposed by the President at the cost of a reduction in constitutional principles.

The state’s duty to protect the public during a pandemic is clear. But the same goes for an individual’s right to bodily integrity. The easy way is that of the president – to say that one bulldozes the other. In a just and moral society, the answer lies somewhere in the middle. If these matters reach our courts, we can only pray that the judges and judges who decide them will be blessed with the Lord’s guidance. It will definitely be one of the hardest decisions any of them will ever make. – Rappler.com

John Molo is a commercial litigator who teaches constitutional law at UP Law, where he chairs the faculty’s political law pole. He is editor-in-chief of the IBP Journal and a director of the Philippine Bar Association. He has argued several landmark cases before the Supreme Court.


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