Sir Denys Byron, former Chief Justice of the Caribbean Court of Justice and Professor Rose-Marie Belle Antoine have penned a paper considering the legality of mandatory vaccines. From the outset the paper admits that it is meant to provide legal support for the policy direction of the governments of the Organisation of East Caribbean States (OECS). Its objectivity may therefore be ever so slightly compromised.
The two have concluded that the Caribbean legal framework does support mandatory vaccines, but this is not the end of the discussion, after all it is accepted that legal frameworks have in the past been notorious for supporting great injustices. And indeed current legal frameworks must evolve to suit the interests of the people which they are meant to serve and protect.
The paper makes a distinction between mandatory vaccination enforced by the State and mandatory vaccinations pursued by the private sector. The first raises issues of constitutional and human rights law and the latter labour law and administrative law. Byron and Antoine however also conclude that legitimacy in the law is not all that is required, mandatory vaccines still may not be desirable or necessary.
Thus Governments are required to examine two principles – reasonableness and proportionality. The question is whether vaccination is a reasonable option given the other alternatives and taking the route least harmful to human rights. The two argue that it is essential then that Governments consider the established science that supports the vaccine and one may also add here the established science that does not support it.
One of the supporting arguments for mandatory vaccines is that they are already part of the status quo, however there are those who have navigated life without ever taking vaccines, there being a carve out for such persons in the law. Would a mandatory vaccine now abrogate long, established existing rights? Naturally the paper also states that any law or policy mandating vaccines must make exceptions on medical and religious grounds. Would those who have spent a lifetime avoiding as far as possible putting processed substances into their bodies fit into such a category? They might prove to be the most resilient against COVID-19.
History is littered with so many instances when the majority thought they knew what was best for minorities with disastrous consequences.
As far as the workplace is concerned the paper submits that employers could justify a requirement in a pandemic context, at minimum where the workplace is a high-risk environment, such as health-care, or essential services, or for workers more at risk at the workplace, such as frontline workers interacting with the public. The point is made that it is unlikely that employers would be held to a higher standard than a constitutional standard.
Of course in Barbados the Government has not mandated vaccines, so that the employers seem to be relying on principles not endorsed by the Government and are therefore currently requiring a higher standard than Government. A recent rebuke by the Chief Labour Officer to a private sector enterprise is instructive.
The Fundamental Rights provisions in Caribbean constitutions all provide for exceptions. The right to liberty in the law must be balanced against imprisonment of those found guilty of serious offences in order to protect the rest of the society. Thus the issue with mandating a vaccine is a balancing of conflicting rights. Byron and Antoine suggest that the Court could take into consideration:
1. PPE and masks not sufficient to contain the enduring a COVID-19 virus and pandemic;
2. Vaccination is safe and effective both to reduce transmission and ameliorate severe disease and death and the only means to do so;
3. COVID-19 is deadly and becoming deadlier;
4. COVID-19 presents a huge burden to the state, individual livelihoods and commercial infrastructure so must be contained;
5. The social and economic cost when hospitals are overwhelmed, including preventing persons who are ill with other ailments and need hospitalization
Of course there are those who may very well wish to question the validity of some of the five grounds outlined above.
This is an evolving area of law and the paper concludes that “[u]ltimately, all actions and toward compulsory vaccination must be grounded in a firm belief that they are being done in the interest and sustainability of the economy and enterprise, in the public interest, the interests of all workers and as a last resort, necessity. Those core principles will be what justifies actions as being reasonable and proportionate as required, and what will ultimately persuade a court.”
Eastmond & Co. 