Prof Rose-Marie Belle Antoine
I am repeatedly asked by various stakeholders whether covid19 vaccination could be made mandatory, so today I offer some initial thoughts.
This is not a clear-cut legal question and there are good arguments on both sides. There is no law, precedent or policy which governs the matter at present.
Labour law, public health and human-rights issues intermingle and ultimately, what is reasonable and in the majority interest would likely prevail.
Legislation compelling vaccination
Mandatory vaccination is, of course, an abrogation of individual rights, but it must be balanced against the collective rights of others – like public health and, importantly, the protection of the individual worker himself or herself in a very high-risk environment.
No right is absolute, and law does not, or should not exist in a vacuum. It is likely that a state will have a wide margin of appreciation in formulating such laws.
Caribbean constitutions have different formulae for laws that limit rights, but a common denominator, whether specifically stated, or through elucidation by case law, is reasonableness. Thus, the TT Constitution, under Section 13, permits such abrogations unless shown “not to be reasonably justifiable in a society that has a proper respect for the rights and freedoms of the individual.” It requires the special three-fifths majority of Parliament.
See too, Jamaica, Section 13 (2), where limitations “may be demonstrably justified in a free and democratic society.” This limitation is to be read within the context of the broader public interest, often specifically stated, such as in the Grenada constitution, Section 1, which speaks to “limitations” of rights to protect the “public interest” or Section 11, Barbados, and Section 14 of the Jamaica constitutions respectively.
In Guyana’s Constitution, Section 40 (2) proclaims that rights limitations are “designed to ensure that the enjoyment of the rights and freedoms of any individual does not prejudice the rights of others or the public interest.”
Mandatory vaccination utilised to protect others could easily meet these thresholds in the current pandemic.
Public health and personal liberty
Importantly, several Caribbean constitutions expressly provide avenues for the state to limit individual rights where public health is at risk as is reasonably required, and this may justify mandatory vaccines.
[caption id="attachment_895002" align="alignnone" width="1024"] Newsday employee Kafi Nicholas gets her temperature checked before entering the workplace at Pembroke Street, Port of Spain. - Marvin Hamilton[/caption]
The rights to not be arbitrarily searched, freedom of conscience, freedom of expression, movement, and protection from discrimination are all rights subject to the interest of public health. See eg the Barbados Constitution, Section 19 (6): “Nothing…done under…any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision – which is reasonab
