Source: Daily Express Trinidad
ANNA RAMDASS
A case for mandatory vaccination has been legally made by two Caribbean jurists.
Sir Dennis Byron and Prof Rosemarie Antoine submitted the view to the heads of government of the Organisation of Eastern Caribbean States (OECS) in a 16-page confidential brief, titled “The Legal Dimensions of Mandatory/Compulsory Requirements for Covid-19 Vaccinations August 2021”.
In January, Trinidad and Tobago is expected to implement a vaccination policy that requires all public servants to be vaccinated in order to work.
Attorney General Faris Al-Rawi has indicated that the Government stands ready to defend its policy all the way up to the Privy Council as he noted that several legal challenges were mounted against vaccination policies in the Commonwealth which were not successful at the courts.
The OECS is an international inter-governmental organisation dedicated to regional integration in the Eastern Caribbean.
It is now an 11-member grouping comprising of the full member states of Antigua and Barbuda, Dominica, Grenada, Montserrat, St Kitts and Nevis, Saint Lucia, and St. Vincent and the Grenadines.
In their brief to OECS leaders, Byron and Antoine stated that a mandatory Covid-19 vaccine law is likely to be constitutional if governments were to utilise this route in getting their populations vaccinated.
According to regional reports, the document focuses on the legal dimensions of the mandatory or compulsory requirements for vaccination.
It stated that the jurists concluded in the document that there is ample provision in the constitution of OECS territories, corresponding jurisprudence and medical data to support mandatory vaccination laws even in the face of counter-arguments alleging violation of rights.
They stated that constitutions around the region generally empower governments to take action which is reasonable and proportional to circumstances or threats which confront society.
They added that the constitution of OECS member states generally gives appropriate leeway for mandatory vaccination as a public health imperative.
Their brief also indicated that employers could justify a mandatory vaccination requirement in the context of a pandemic.
Byron and Antoine stated that it was their view that mandatory vaccination would be especially considered legally sound if, at minimum, it is enforced at workplaces that are considered as high risk.
These include healthcare facilities, other essential services, or generally where workers are on the frontline and interacting with the public during the pandemic.
They stated that a vaccination policy during the pandemic within workplaces would be reasonable – both to protect other employees, the interacting public and even the employee who’d be mandated to take the Covid-19 vaccine.
The jurists stated that increasingly the enduring state of the public health risk that is the Covid-19 pandemic and the science are pointing to even more liberal rationales for compelling vaccines at the workplace.
They added that all actions toward compulsory vaccination must be grounded in a firm belief that the policy is being pursued in the interest of the economy, enterprise, in the public’s interest, in the interest of all workers and as a last resort or necessity.
They stated that ultimately those core principles would be what justify the regional constitutional standard – that actions by the state to confront threats must be reasonable and proportionate.
If those core principles are observed, they stated that the Courts of law in the region are likely to be persuaded that mandatory vaccination is constitutional.
“Having demonstrated that mandatory vaccination is constitutionally appropriate given the leeway granted in favour of public health imperatives, it is submitted that employers could justify a requirement in a pandemic context, at minimum where the workplace is a high-risk environment, such as healthcare, or essential services, or for workers more at risk at the workplace, such as frontline workers interacting with the public,” stated the report.
“It is unlikely that employers would be held to a higher standard than a constitutional standard. This is reasonable both to protect other employees, the interacting public and even the employee himself or herself,” according to the document.
It notes that, increasingly, the enduring state of the pandemic and the science is pointing to even more liberal rationales for compelling vaccines at the workplace.
The jurists stated that medical ethics support mandatory vaccination, as they noted that the legal position mirrors the position emanating from medical ethics, as enshrined in the Nuffield Report, which is relied upon by the World Health Organization that mandatory vaccination “can be ethically justified if the threat to public health is grave, the confidence in safety and effectiveness is high, the expected utility of mandatory vaccination is greater than the alternatives, and the penalties or costs for non-compliance are proportionate…”
Byron and Antoine stated that their brief was intended to provide legal support for the policy direction of OECS governments and that by choice “it avoids excessive legal jargon and a preponderance of case-law, as one would generally find in a legal brief, although the principles and positions outlined are informed by comprehensive research.
Byron is a retired president of the Caribbean Court of Justice (CCJ), while Antoine is the former dean of the Faculty of Law at the University of the West Indies St Augustine Campus in Trinidad and also a Professor of Labour Law.
Trinidad and Tobago’s move to implement a vaccination policy requiring government workers to be vaccinated is not unique.
Other countries have also adopted such a policy. In Canada, all federally-regulated workplaces will require a vaccinated workforce.
A long list of other countries, including Costa Rica, Croatia, Egypt, France and New Zealand, is also rolling out vaccination mandates for their populations.