Friday 29 Mar 2024
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KUALA LUMPUR (Sept 13): There are views now being promoted that any prescriptive regulations or employment requirements for vaccination status on individuals militate against the liberty of a person to choose NOT to be vaccinated. And further this is unconstitutional.

It is of interest that the express reference to public health under Part II of the Constitution is pursuant to freedom of religion under Article 11 where the "right to profess and practice his religion…" is protected. Article 11(5) expressly lays down qualification that "... This Article does not authorise any act contrary to any general law to public order, public health or morality".

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

We have empirical data (both globally and domestically) that religious gatherings can give rise to Covid-19 clusters that have a devastating impact on the community. Certain religious groups that reject scientific — clinical based evidence also reject vaccination on the erroneous grounds that it manipulates the human genome and therefore constitutes "playing God".

Does a religious believer who holds such views i.e. that gatherings cannot be proscribed nor vaccination be enjoined by laws be permitted to invoke Article 11? The courts have wrestled with this issue when the Jehovah's Witnesses community refused to allow blood transfusion on the grounds that it contravenes the Mosaic Levitical prohibitions. The courts have taken views that the state has the duty to protect, for example a child, such a community can be subject to hospital intervention despite objections of the parents.

A novel argument has also been circulated that Article 8 provides that "all persons are equal before the law and entitled to the equal protection of the law" and has the consequence that a resister to 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 her religious convictions, Article 11 (5) demarcates the parameter of her liberty to so decide.

As for the claim that proscriptions to employment and freedom to enjoy amenities of retail outlets for the non-vaccinated contravenes Article 8, that also is unsustainable on constitutional reasoning. Any discrimination to such resisters to Covid-19 vaccination is based on a "rational nexus" and the courts in all jurisdiction 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 proportionate) to individual liberty of choice can be said to be unconstitutional.

Philip TN Koh is Advocate & Solicitor, High Court of  Malaya and Professor (Adjunct), University Malaya.

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