No vax, no entry ordinance and civil liberties

By Atty. Eduardo T. Reyes III

It was a “double-fault” when Novak Djokovic, the topmost tennis player in the world today, was granted an exemption from the “no vax, no entry” policy in Australia to allow him to play in the 2022 Australian Open only for it to be revoked upon his arrival causing some ruckus down under. Undeterred, Mr. Djokovic launched a second serve by hiring lawyers to assail the revocation of his visa which for a while was set aside by a judge but eventually the head of the immigration bureau- a higher authority- reimposed the ban against Mr. Djokovic.

It seems that it is game over for Mr. Djokovic who is homebound after his last serve hit the net. An avowed vegan who is lauded as not only an exceptional tennis player but also one who champions veganism and the rights of anti-vaxxers, Mr. Djokovic is taking the cudgels for the cause being pressed forward by those against compulsory vaccination.

Perhaps one of the most divisive issues that had confronted society so far is the great chasm between the vaccinated and the unvaccinated. Since covid-19 strikes at the very core of humanity in that the way to beat it is to isolate, social distance, use a mask, or a face shield, it skews man’s instinctive nature to interact.

Across the country, local government units (LGUs) are beginning to enact ordinances imposing a “no vax, no entry” policy.  The anti-vaxxers are up in arms against the proposed edict by asserting that the same impinges on civil liberties such as the right to travel.

Right to travel is not absolute 

                The most recent doctrinal-ruling that dealt with the constitutional issue of the right to travel is Zabal v. Rodrigo R. Duterte, G.R. No. 238467, which was handed down on February 12, 2019. Explaining that the state’s police power is an awesome power which can be called upon in times of emergency to protect the general interest and in the course thereof, personal liberties may be curtailed, the Supreme Court upheld the restriction on the right to travel, thus:

 

“Police power, amongst the three fundamental and inherent powers of the state, is the most pervasive and comprehensive. “It has been defined as the ‘state authority to enact legislation that may interfere with personal liberty or property in order to promote general welfare.” “As defined, it consists of (1) imposition or restraint upon liberty or property, (2) in order to foster the common good. It is not capable of exact definition but has be purposely, veiled in general terms to underscore its all-comprehensive embrace.” The police power “finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter” since “it is inborn in the very fact of statehood and sovereignty.” It is said to be the “inherent and plenary power of the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of the society.” Thus, police power constitutes an implied limitation on the Bill of Rights.  After all, “the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties. ‘Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s will.’ It is subject to the far more overriding demands and requirements of the greater number.”

Then again the curtailment that is borne of the exercise of police power cannot discriminate against a particular class unless there is a “substantial distinction” for it might otherwise run afoul of another civil liberty known as “the equal protection clause”.

Test of substantial distinction

“It is an established principle of constitutional law that the guaranty of equal protection of the laws is not violated by legislation based on reasonable classification. And for the classification to be reasonable, it (1) must rest on substantial distinctions; (2) must be germane to the purpose of the law; (3) must not be limited to existing conditions only; and (4) must apply equally to all members of the same class”.(JOINT SHIP MANNING GROUP, INC. v. SSS, G.R. No. 247471, July 07, 2020).    

Thus for the proposed no vax, no entry ordinances that are in gestation to become valid, the same must marshal the test of “substantial distinction”. Is there really a substantial distinction between the jabbed and the (un)jabbed?

That would be for the experts to say. However, granting that there is, the next legal issue that poses as a challenge is: do LGUs have the power to enact such no vax, no entry ordinance?

The answer is YES.

In NATIVIDAD C. CRUZ AND BENJAMIN DELA CRUZ v. PANDACAN HIKER’S CLUB, INC., REPRESENTED BY ITS PRESIDENT, PRISCILAILAO, G.R. No. 188213 January 11, 2016, it was held that LGUs were injected with the rolled-out police power of the state through the enactment of the Local Government Code (R.A. 7160) particularly Section 16 thereof which articulates the “General Welfare Clause”, thus:

“We add that, in the case at bar, petitioners were required to justify their abatement via such an ordinance because the power they claim to have exercised – the police power under the general welfare clause – is a power exercised by the government mainly through its legislative, and not the executive, branch. The prevailing jurisprudence is that local government units such as the provinces, cities, municipalities and barangays exercise police power through their respective legislative bodies. The general welfare clause provides for the exercise of police power for the attainment or maintenance of the general welfare of the community. The power, however, is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights. Jurisprudence defines police power as the plenary power vested in the legislature to make statutes and ordinances to promote the health, morals, peace, education, good order or safety and general welfare of the people.”

RA 11525 on the prohibition against mandatory requirement

of presentation of vax cards for educational, employment

and other government transactions 

Section 12 of Republic Act No. 11525 or the “COVID-19 Vaccination Program Act of 2021” which was approved on February 21, 2021 provides that vaccine cards ought to be mandatorily issued to those who had been vaccinated but there is an express injunction that these “cards shall not be considered as an additional mandatory requirement for educational, employment and other government transaction purposes”.

Will the no vax, no entry ordinances contravene the dictates of RA 11525?

This column humbly submits that for so long as there is continuous delivery of government services and provisions for continued educational instructions and/ or employment through “work-from-home” schemes are put in place even to the unvaccinated, then there would be no violation of RA 11525.

Wisdom of lawmaking body 

                It is a fundamental rule that the lawmaking body is imbued with the prerogative to ascertain what is best for the general public. Thus, “It is a basic postulate that the one who challenges the constitutionality of a law carries the heavy burden of proof for laws enjoy a strong presumption of constitutionality as it is an act of a co-equal branch of government.(JOINT SHIP MANNING GROUP, INC. v. SSS, G.R. No. 247471, July 07, 2020). Resultantly, the wisdom of the lawmaking body is usually accorded some degree of respect even by the courts.  In retrospect, the US Supreme Court had held in  Ozborn v. Ozlin (1940) that courts may no longer substitute their social and economic beliefs for the judgment of legislative bodies.  This was reiterated in Ferguson v Skrupa (1963).  

                Too, under the principle of “judicial restraint”, “Neither Holmes nor Brandeis had ever intended the Court to abdicate its role of judicial review. They merely wanted the judiciary to stop acting as a super legislative, second-guessing the people’s elected representatives as to the wisdom of their policy. (P. 711 March of Liberty by Urofsky).

                In the end, the greater wisdom lies in a balancing of interests.   

                Indeed, as we look forward to elect new public officials in the upcoming May 2022 elections, we vet the capabilities of the candidates to “represent” the people. The ones posing to decide on the general welfare must possess both the courage to enact tough ordinances to further the public good as well as the milk of human kindness to reckon the interest of those in the periphery, and even the dissenters or oppositors.

That is the kind of democratic and republican government that we yearn to live in. One which will avoid a double-fault at all costs. For the good of all.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).