The amendments to the law requiring mandatory vaccination of civil servants and the private sector employers and employees under the Health and Safety (General Workplace Conditions) (Amendment) Regulations 2021 as a precondition of employment is lawful.

It is consistent with the human rights obligations of the State under the Fijian Constitution, and it does not constitute a derogation of the constitutional right to freedom from scientific or medical treatment or procedures without an order of the court or without his or her informed consent under section 11(3) of the Fijian Constitution precisely because the amendments to the law do not take away the constitutional right to informed consent.

What happens when you choose not to get vaccinated?

However, if individuals choose not to get vaccinated, they are effectively forfeiting their right to economic participation and equally inviting fair discrimination based on health. Section 26 (3) (b) of the Fijian Constitution provides an exception to the right to equality and freedom from discrimination which includes opinions or beliefs if they involve harm to others or the diminution of rights and freedom of others.

Pursuant to section 26 (7), this exception hinges on the fact that such discrimination must not be unfair in the circumstances.

What is fair will invariably hinge on the collective interest as evidenced in the recent ruling of the European Court of Human Rights in Vavricka and Others v. the Czech Republic.

The judgement showed that states enjoy a wider margin of appreciation in determining vaccination policies, provided vaccination is not forcibly imposed.

The judgement also suggests that governments are free to use economic sanctions and incentives to encourage vaccination, but measures must be proportionate.

States have a positive obligation to protect the health and lives of their residents including those that are vulnerable to certain diseases and those who cannot have specific vaccines for medical reasons.

Reasonable exceptions prescribed by law do exist in our legislation too. However, these are sensibly limited to a legitimate medical reason. States have the unenviable task of balancing rights so that the exercise of an individual’s rights and freedoms does not result in the diminution of the rights and freedoms of others.

The burden should invariably now lie with the opponents of vaccination to demonstrate how this would constitute an unfair discrimination on the prohibited grounds of health and whose health really matters when we invoke section 26(3) of the Fijian Constitution and section 6(2) of the Employment Relations Act?

Those that are vaccinated. Or those that choose not to be vaccinated? Or those that do not have the privilege of choosing such as our children? Where does the duty of care begin and where does it end?

Unvaccinated employees

Some have callously argued that unvaccinated employees should be allowed to work but must sign a declaration to indemnify the employer from damages should they die at work because of the virus.

If we proceed in this trajectory in the private sector, how many must die from this pandemic before we say that someone must be held accountable?

The State has no such luxury because it has a duty of care to its citizens leaving it with the burden of addressing whether the right to bodily integrity should continue to prevail despite the risk to others in a context where boundaries between public and private areas of control is becoming increasingly blurred.

We must not lose sight of the fact that these Fijians are not simply employers or workers or civil servants. They are part of households and communities.

Informed consent under section 11 (3) of the Fijian Constitution still required. 

There is a view in surfeit in certain human rights circles, considering the legislative amendments, that the State has now “criminalised” the conscious act of refusing to provide consent for the jab.

Imrana Jalal, for instance, as reported by the Fiji Village on July 12, 2021, is quoted as saying “you can exercise the right not to get vaccinated, which is constitutionally protected, and the State is wrong to criminalise it”.

It is imperative to note that the State has not “criminalised” the conscious act of refusing to provide consent for the jab.

It is unfortunate that Ms Jalal has chosen to label the legislative amendments relating to the vaccine as criminalising an individual’s decision to refuse the jab.

Nowhere in the Public Health Act or the Health and Safety (General Workplace Conditions) (Amendment) Regulations does it say that it is a criminal offence to refuse the vaccine.

Like any legislation or subsidiary legislation, the Health and Safety (General Workplace Conditions) (Amendment) Regulations prescribe pecuniary penalties against both the employer and the employee. These penalties are of a civil nature and are imposed against those who enter the workplace in contravention of the amended regulations. Interestingly, the Fiji Village article states that Ms Jalal agrees that the State can say to civil servants that they cannot enter Government premises for work unless they are vaccinated.

Is Ms Jalal promoting the idea of limiting such policies to only Civil Servants? The private sector employers, workforce and its customers or clients are also at risk of contracting COVID-19.

The legislative amendment in this respect covers both civil servants and the private sector.

Reckless claims damaging

It is also reckless and incorrect to claim that “Government is forcing medical personnel to give the jab” as claimed by the Honourable Lynda Tabuya on the social media.

Consent is still required by the medical professionals administering the vaccine prior to one receiving the vaccination.

It must be noted that informed consent is predicated on the right to access timely and credible information pertaining to the vaccine.

There have been ample and exhaustive vaccination campaigns by the Fijian Government and supported by the international community, not coercing but encouraging Fijians, to undergo vaccination including in the vernacular about the side effects, benefits, and the need for the lifesaving vaccine.

Quite contrary to those who in their zeal for political mileage purposefully peddle disinformation and trash the tireless efforts of our health workers, civil servants and disciplinary forces, the hundreds that are coming forward in communities such as the Qauia Settlement to get vaccinated, are a strong testament to the effectiveness of the awareness campaigns and dialogue in our communities.

Fijians are accessing the necessary information empowering them to present themselves to vaccination centres.

They are exercising their right to provide informed consent by voluntarily completing the Informed Consent Form for COVID-19 AstraZeneca Vaccine to receive the jab.  Therefore, the constitutional right guaranteed under section 11 (3) as a non-derogable right remains intact.

Legal basis for State’s intervention 

Given that Fiji’s test positivity for COVID-19 has way surpassed the World Health Organisation’s threshold of five per cent, section 6(5) (c) of the Fijian Constitution may be invoked by the State when weighing the overriding right to health against the right to economic participation or when weighing the interests of the individual against that of a community. Section 6(5)(c) provides  that the rights and freedoms set out in the Bill of Rights “apply according to their tenor and may be limited by limitations which are not expressly set out or authorised (whether by or under a written law) in relation to a particular right or freedom” in the Bill of Rights, “but which are necessary and are prescribed by a law or provided under a law or authorised or permitted by a law or by actions taken under the authority of a law”.

This exception in our law, of course, must meet the test of necessity and given the soaring rates of transmissions, the aggressive speed at which the virus is mutating and the resulting deaths coupled with an unprecedented deleterious impact on social and economic rights demand that we place these competing rights guaranteed in our Constitution in their proper perspective because there are consequences for the individual, community and the state when one makes a conscious choice to either get vaccinated or not.

The ramifications of this choice are far greater and not confined to the individual making the choice.

It is ultimately the State, as an abstract structure of redress, that will be held to account as we continue to lose lives and livelihoods.

The State has various obligations under the Fijian Constitution relevant to the pandemic. Section 38 (1) places an important obligation on the State to take reasonable measures within its available resources to achieve the progressive realisation of the right of every person to health, and the conditions and facilities necessary to good health, and to work care services, including reproductive healthcare.

In balancing the States obligations under section 38(1) against section 32 (1) of the Fijian Constitution on the right of every Fijian to full and free participation in the economic life of the State, the State has set a timeline to achieve the required herd immunity so that this very right of all Fijians to economic participation is protected and progressively realised.

For this reason, some may argue that section 32(3) of the Fijian constitution may have been invoked to the extent necessary to protect the right to economic participation rather than allowing Fijians to suffer through the pandemic and beyond against the backdrop of national economic devastation.

The right to economic participation must not be narrowly interpreted as it is not a right that is exclusively the preserve of either the employer or employee as some have argued.

We cannot play glass half empty and half full

On Monday July 12, 2021, the Ministry of Health and Medical Services announced 873 new cases of COVID-19 and three deaths.

One of the deaths reported was that of a 15-year-old girl, a young person who is not eligible to take the vaccine.

As Fijian adults continue to assert their right to refuse the jab, without a justifiable reason, what happens to the right to health of a 15-year-old Fijian?

Are young people not rights bearing subjects? Should they not be equally protected from discrimination on prohibited grounds?

The irony, of course, is that the privileged class who are vociferously agitating against vaccination on the grounds of upholding individual rights and in defence of section 11 (3) of the Fijian Constitution have themselves taken two full doses of the AstraZeneca vaccine.

Other than threatening litigation, which remains everyone’s constitutional right, no concrete proposal has been made as to how the risk posed by those that are not vaccinated can be contained in our homes, schools, and workplaces.

Fijians must remind themselves that section 11 (3) of the Constitution pertains to the right of every Fijian to provide informed consent for a medical procedure.

Fijians who are falling prey to disinformation nourished by conspiracy theories from uncredible sources are in effect giving up their right to information, their right to vaccinate and ultimately their right to health but the highest price is paid by those who are neither eligible for a vaccine nor have a say in the current human rights conundrum as we selectively quote our preferred sections of the law to suit our politics in a war of words, our children.

We are now riding an irreversible tide where we can no longer extrapolate human security from human rights and decisive action must be taken because there is irrefutable scientific evidence that vaccines save lives.

Feedback: jyotip@fijisun.com.fj