Would vaccine passports be valid if required?

By Atty. Eduardo T. Reyes III 

While writing this article, a total of 119 cases of infections caused by the much-dreaded Delta variant in the Philippines had been reported.

Suddenly the mood turned febrile with this latest development as it came at a time when vaccine roll-outs are starting to gain steam nationwide. As a possible deterrent to the surge of new infections that may likely be precipitated by this more virulent and is said to be a thousand times more transmissible variant, proof of vaccination could be required in the form of a vaccine passport.

Vaccine passports are of three kinds. One, those that may be required for international travel. The second is a one-time proof which may be required by schools during opening of classes. While the third one is the transactional kind which will be required for entrance into establishments for availment of goods or services.

But while vaccine passports could be a good idea from the health emergency perspective, serious legal implications can arise if they are rolled-out without much legal thought.

In the United States,  Florida, Texas and Montana, came up with edicts that prevent private businesses from requiring proof of vaccination. But Hawaii is strict in requiring vaccine passports not only for inbound travel but also between islands.

Denmark, Estonia and Israel have implemented the third kind while the European Union plans to follow suit.

As to the first kind (vaccine passports for international travel), this is easy to justify. This is because all states adhere to the “territoriality principle” in International Law whereby each state’s border is deemed within its control and thus has unquestionably the power to deny entry based on its policies and regulations. In the Philippines, apart from the territoriality principle, there is an existing law (RA 11332) otherwise known as the “Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act”, where the avowed policy is stated in Section 2, as follows:

“Section 2. Declaration of Policy. -It is hereby declared the policy of the State to protect and promote the right to health of the people and instill health consciousness among them. It shall endeavor to protect the people from public health threats through the efficient and effective disease surveillance of notifiable diseases including emerging and re-emerging infectious diseases, diseases for elimination and eradication, epidemics, and health events including chemical, radio-nuclear and environmental agents of public health concern and provide an effective response system in compliance with the 2005 International Health Regulations (IHR) of the World Health Organization (WHO). The State recognizes epidemics and other public health emergencies as threats to public health and national security, which can undermine the social, economic, and political functions of the State.

The State also recognizes disease surveillance and response systems of the Department of Health (DOH) and its local counterparts, as the first line of defense to epidemics and health events of public health concern that pose risk to public health and security”. 

            There is no doubt that Philippine laws have sufficient teeth to implement a vaccine passport of the first kind.

But the second  (ie., one-time proof which may be required by schools during opening of classes)  and third (ie., the transactional kind which will be required for entrance into establishments for availment of goods or services) are rather tricky to execute. This is owing to the fact that because of their nature, these kinds of vaccine passports could easily trammel individual rights and liberties.

If a law be passed requiring a vaccine passport of the second and third kinds, would it stand judicial scrutiny when gauged against our constitutional and civil liberties?

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).

Assuredly, courts will not hesitate to strike down laws which would interlope on the people’s civil liberties but they would be inclined to defer to the wisdom of Congress when it comes to economic policy considerations.

            There is, in other words, a wide difference between judicial review of economic legislation versus statutes affecting individual liberties.

Another point. Settled-doctrine in constitutional law holds that regulation of “public places” easily comes within the police power of the state; while as to private businesses, the state’s legal tentacles are not allowed to stretch that far as private entities enjoy some degree of insulation from state interference. So generally, when it comes to public offices, a law requiring vaccine passports may be upheld. While as to private businesses or offices, it is submitted that the state or the local government unit (LGU), must tread carefully as regulation of private business comes within the purview of the constitutional right to due process of law.

But then again, private businesses which cater to the public in general like restaurants, schools and hospitals had been deemed  to be “impressed with public interest” by case law and thus had come within the regulatory powers of the state or LGU.

Inevitably, requiring vaccine passports would be straddling on both (economic considerations and the right to liberty) and thus will surely create a legal skein that will be difficult to untangle.

Once the legal issue that may mutate from the implementation of the vaccine passports comes up, may the government and the courts somehow replicate the speed by which the Delta variant is transmitted in resolving the legal issue and by striking a balance between protecting the people’s health and promoting the national economy as well.

(Atty. Eduardo T. Reyes, III 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).