Would a law on compulsory vaccination be valid?

By Atty. Eduardo T. Reyes III

To get a jab or not to get a jab: That is the question of the hour.

In the United States, Democrats and Republicans are divided on the issue. Following the trajectory of the Biden administration which is in favor of mandatory inoculation, Democrats are pushing for laws requiring vaccine passports. At the opposite end of the spectrum are the Republicans who assert that making vaccination compulsory would impinge on civil liberties. In France, the low turn-out of people in vaccination sites prompted the government to require vaccine passports for entry into coffeeshops and bars. This policy seems sanguine as a considerable number of people rushed to the sites to get a jab after the edict was handed down.

There are two (2) layers that must be tackled to untangle the legal cobwebs involving the issue of mandatory inoculation. They are: 1) If a law is passed mandating vaccination, would it be constitutional?; and, 2) Presently, do we have a law that mandates vaccination against Covid-19?

Let us start with the first.

More than a century ago, when the ferocious smallpox plunged the world into a pandemic, jurisprudence had enunciated that  “The right of the State to compel compulsory vaccination is well established (Jacobson vs. Massachusetts, 197 U.S., 11), and not put in question in these proceedings. The decision of American courts are uniform to the effect that whatever dispute may exist between the various schools of medicine as to how smallpox is to be prevented, that question is for the legislature, not for the courts, to determine”.(THE PEOPLE OF THE PHILIPPINE ISLANDS v. JOSE ABAD LOPEZ, G.R. No. L-42199             January 14, 1936).

Indeed, if we go by judicial precedent, in line with the doctrine of stare decisis which is envisaged in Article 8 of the New Civil Code, there is strong legal support to the argument that making vaccination mandatory is constitutional and thus can be enforced.

But as jurisprudence instructs, policy considerations to be reckoned in determining whether it would be for the public good for vaccinations to be made obligatory, devolve in the wisdom of Congress.

This leads us to the next issue.

At present, we have laws that may be invoked to address the surging pandemic.

Republic Act No. 11223 or the “Universal Health Care Act” which came into effect in December 2020, created a Health Technology Assessment Council (HTAC) which is an independent body that provides guidance to the Department of Health (DOH) and PhilHealth in analyzing costs of vaccine, storage, transport, manpower and even the water to be used for inoculation purposes. Upon approval of the vaccines for emergency use, another technical body known as the National Immunization Technical Advisory Group (NITAG) shall take charge of monitoring the distribution of the vaccines.

Next comes the Department of Science and Technology (DOST) which has a reviewing body known as the Vaccine Expert Panel (VEP) which in tandem with the Single Joint Ethics Review Board (SJERB) -composed of doctors of medicine and other medical experts-, will review the application for emergency use of vaccines which will then be submitted to the Food and Drug Administration (FDA) which in turn is under the umbrella of the DOH. Pursuant to EO No. 121 issued by President Duterte on December 01, 2020, FDA is authorized to issue emergency use authorization of COVID-19 vaccines.

And then we have the most recent law which is Republic Act No. 11525 or the “COVID-19 Vaccination Program Act of 2021” which was approved on February 21, 2021. Section 7 provides that the HTAC shall have authority to make recommendations to the DOH for COVID-19 vaccines based on preliminary data derived from Phase III clinical trials. But it is Section 12 that deals with vaccine cards. According to this law, 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”. This is perhaps in light of the provision in the same section that states that “individuals who are vaccinated are not considered as immune from COVID-19”.

Inevitably, in the Philippines, there is yet no law that makes vaccination compulsory. Then again, Section 15, Article II of the 1987 Philippine Constitution states that “The State shall protect and promote the right to health of the people and instill health consciousness among them”.

Should a law be passed making vaccination mandatory?

On one hand, it is the right of those against vaccination, to opt not to get a jab. But on the other, it is no less the right of those in favor of vaccination, not to get infected.

In the hands of Congress is a grave responsibility. With the upcoming campaign season and elections next year which will surely draw people en masse, time is running out. The State has to make a stand on the issue. A wrong turn can relegate the 2022 elections into the tyranny of the few on account of votes only coming from the minority. And this could be because the majority of the electorate had already succumbed to Covid-19.

(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).