Friday, December 3, 2021

Restrictions on anti-vaxxers, constitutional or a denial of rights?

People have rights, but so does society, legal experts say.

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As more of the country’s social and economic sectors reopen with greater freedoms allowed for the fully vaccinated, questions have arisen over the fate of those who choose not to get jabbed, and whether the restrictions imposed on them are in line with the rights laid out in the Federal Constitution.

Certain business premises, for example, can only welcome customers who have completed their vaccinations, and even leisure activities such as catching a movie over the weekend must now be preceded by proof of full vaccination.

Civil servants, meanwhile, were told to get jabbed by the start of the month, with disciplinary action and the threat of dismissal awaiting those who continue to hold out.

But while such measures might be labelled as draconian by some, legal experts who spoke to MalaysiaNow said they are well within the government’s right.

Andrew Harding, a professor at the National University of Singapore, said the Prevention and Control of Infectious Diseases Act 1988 or Act 342, which is currently being used to fight the pandemic, is constitutionally valid.

“The constitution allows restrictions on personal liberty in accordance with the law, according to Article 5(1),” he said, referring to the clause which states that no person shall be deprived of his life or personal liberty except in accordance with the law.

Harding, who has carried out research on the Federal Constitution, also cited Article 10 (2)(b) which states that freedom of assembly is subject to such restrictions as deemed necessary in the interest of the security of the federation.

Meanwhile Wilson Tay who teaches law at Taylor’s University said restrictions on fundamental liberties must be proportionate in nature.

“They must relate to an objective of sufficient importance to justify overriding a constitutionally protected right,” he told MalaysiaNow.

“The steps taken to achieve that objective must also be reasonable and clearly justified.”

Health Minister Khairy Jamaluddin said last month that the government would “make life difficult” for those who refuse to be vaccinated, sparking protest from those who said that such a move would be against the constitution.

Critics also said that those who refuse to be jabbed have been oppressed and denied their rights, with some pointing to reports stating that MPs who do not get vaccinated will not be barred from entering the Dewan Rakyat.

Tay said whether Khairy’s warning was constitutionally valid would depend on the severity of the measures contemplated.

As for unvaccinated MPs who are permitted to enter Parliament, he and Harding said the issue is more complex than the analogy allows.

“MPs enjoy parliamentary privilege and cannot be prevented from attending Parliament,” Harding said.

“In this sense the law does apply a double standard but it is not invalid for that reason.”

Tay meanwhile said double standards would only exist if a person who is unvaccinated is barred from dining in at a restaurant but an unvaccinated MP is allowed in.

While Malaysia’s vaccination rate has been acknowledged and praised on the international stage, there are still pockets of people who remain hesitant or outright resistant to getting jabbed.

It was revealed in Parliament on Wednesday that some 29,000 civil servants have yet to receive their shots.

One option which has been taken by a handful of countries is to make vaccination compulsory. Only three countries have taken this route so far: Indonesia, Micronesia and Turkmenistan.

Indonesia announced in February that those who refuse vaccination could be denied social assistance or government services or be made to pay a fine.

Micronesia and Turkmenistan meanwhile have made it compulsory for their adult population to be jabbed.

A more common approach, taken most recently by Britain, is to make inoculation mandatory for those in the healthcare sector.

But Harding does not think that making vaccination compulsory will solve anything.

“People have a right not to be vaccinated,” he said. “Meanwhile, society has a right to protect itself by imposing restrictions on those people.

“We have a right to decide, but decisions also have consequences.”

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