Legal grounds for mandatory jabs

NEARLY 98% of public servants have received the Covid-19 jab. The Public Services Department (PSD) has announced that it is mandatory, except on verifiable health grounds, for the remaining employees to register for the vaccination by Nov 1 or face disciplinary action.

There is widespread support for this proposal. However, in a rule of law, the constitutional and legal dimension must always be borne in mind. Freedom is inherent; it is power that needs legal justification.

Any forced or mandatory vaccination policy raises issues under Article 5(1) of the Federal Constitution that “no person shall be deprived of his life or personal liberty save in accordance with law”.

The concepts of “life” and “liberty” have been interpreted liberally and prismatically by our courts to include a right to privacy, autonomy and freedom of choice.

Under Article 160(2), the term “law” refers to written law, common law and custom to the extent recognised.

A PSD Directive is not law by itself unless it is framed as a subsidiary legislation or as an instruction or order under the authority of an Act of Parliament and within the perimeters permitted.

Additionally, the term “law” does not mean any law whatsoever passed by Parliament. The law that is enacted must be reasonable and proportionate as was held in the 2019 case of Alma Nudo Atenza.

Under the common law, all competent adults can consent or refuse to consent to medical treatment, and forcing a medical treatment or procedure may amount to trespass on the person.

A mandatory vaccination may also impinge on freedom of religion unless it is justified on the Article 11(5) grounds of public order, public health or morality.

This requirement of due process of law means that as a precondition to making vaccination mandatory, the government or private employer must seek and find a law that authorises a mandatory vaccination policy. Mandatory vaccinations cannot be based on pure discretion or policy or the so-called “employer’s prerogative”.

A quick search of the law indicates the following:

> The Prevention and Control of Infectious Diseases Act 1988 does not prescribe mandatory vaccinations.

> The Emergency (Prevention and Control of Infectious Diseases) (Amendment) Ordinance 2021 (which is still operational for six months after the end of the Emergency on Aug 1, 2021) also does not mention mandatory vaccinations. However, its section 21A(1) lays down that the director-general may issue any directions in any manner to any person to take such measures for the purpose of preventing and controlling infectious diseases. Much depends on judicial interpretation of this open-ended, blank-cheque provision.

> The Public Officers (Conduct and Discipline) Regulations 1993 authorises the PSD to discipline public servants and impose a whole range of disciplinary punishments.

> There is also the Occupational Safety and Health Act 1994 (OSHA), which does not mention mandatory vaccination. However, its sections 15 and 17 impose a duty on all employers to provide a safe, healthy and conducive work environment for all employees and to ensure that third parties are not exposed to risks to their health and safety.

> Under the First Schedule, OSHA applies to all public services and statutory authorities. The PSD can rely on this Act to require public servants to be vaccinated.

> Under Section 24 of OSHA, all employees have a duty to comply with measures which the employer has put in place to ensure health and safety in the workplace. However, the reasonableness of the measures can be challenged in a court of law.

In foreign jurisdictions like Australia, Germany, the United States and New Zealand, courts have held that a mandatory vaccination requirement was reasonable in the context of operations that involve elderly care and childcare, where employees are working with vulnerable clients.

In the United Kingdom, legislation was passed to mandate Covid-19 vaccination for those working in care homes. In the US, in the case of Jennifer Bridges v Houston Medical Hospital, a Texas court held that the implementation of a mandatory Covid-19 vaccination policy is justified due to the nature of the hospital’s operations.

In upholding the hospital’s decision to terminate the employee, the court held that the “Vaccination policy is not coercion. (The employee) can freely choose to accept or refuse a Covid-19 vaccine; however, if she refuses, she will simply need to work somewhere else”.

The European Court of Human Rights has, in 2021, held that the Czech Republic’s mandatory pre-school vaccination requirements for children did not breach Article 8 (right to private life) and Article 9 (freedom of religion) of the European Convention on Human Rights.

The court recognised that mandatory vaccination, as an involuntary medical intervention, was an interference with physical integrity and therefore the right to private life. However, it held that the policy was a proportionate means of achieving legitimate aims of protecting against diseases that could pose a serious risk to the community.

When creating mandatory vaccination policy, it will be important to include exemptions for people who cannot receive a vaccine due to underlying health issues. To ensure that natural justice is adhered to, dialogues should be held with the unvaccinated employees to understand the reason behind their refusal.

It is also notable that the PSD has authority only over the public services as defined in Article 132. It has no authority over employees in statutory bodies, local governments and public corporations to whom different laws apply.

In sum, the government can use its disciplinary and regulatory powers over its employees to mitigate the Covid-19 situation. It can resort to a whole range of disciplinary actions under the Public Officers (Conduct and Discipline) Regulations 1993. However, it will be inappropriate to use disciplinary laws to bludgeon vaccination sceptics. Other measures could be tried.

The government has the power to force compulsory retirement (with full pension or reduced pension). Instead of dismissal, it can terminate the employee in the public interest (with full pension or reduced pension).

In turn, public servants must cooperate with the health policy despite their misgivings. Freedom must go hand in hand with responsibility and collective consciousness. Public servants can, as part of their autonomy, avoid the jabs but they may not be able to save their jobs.

The author is Tunku Abdul Rahman Chair Holder at Universiti Malaya. The views expressed here are the author’s own.