NAAWAN, Misamis Oriental (MindaNews / 26 June) — The result of the Pulse Asia survey, conducted before the vaccine rollout, was dumbfounding in the midst of the raging pandemic. It showed that only 32 percent of Filipinos were willing to be vaccinated while almost half or 47 percent said they would not get the jab against Covid-19, while 21 percent were still undecided.
The reality on the ground, especially on the early phase of the vaccine rollout, validated the survey. The response to vaccination was lukewarm even among the health frontliners, the no.1 priority group. The turnout of senior citizens was also a trickle. Even at present many are reluctant to get the jab arising from uncertainty, distrust and fear of the currently available vaccines. It does not help that the President got the jab with a vaccine outside the legally-approved FDA-DOH inventory.
Presumably, irritated by the slow vaccine rollout which dims the goal of attaining herd immunity by the end of the year or next year, President Duterte, in addressing the nation on June 21, threatened to jail those who refuse vaccination under the government’s anti-COVID-19 mass vaccination program.
The threat was immediately defused by Justice Secretary Medardo Guevera saying it has no leg to stand on; an enabling law is needed to do it. Presidential mouthpiece Harry Roque did not declare the threat as another presidential joke but said it was an outburst that seethes from the President’s passion to save the nation from the pandemic. He agreed with the Justice Secretary that making vaccination mandatory requires a law to enforce it.
Presidential Legal Counsel Salvador Panelo came to the rescue of the President arguing that in the interest of the general public, the chief executive can order the arrest and detention of those who refuse vaccination and no law is needed to do it, particularly that the country has been placed in the state of emergency in response to the pandemic.
Panelo, in support of his view, cited Article 2, Section 4 and 5 of the Constitution which respectively states:
Section 4. “The prime duty of the government is to serve and protect the people.”
Section 5. The “maintenance of peace and order, the protection of life, liberty and property, and the promotion of the general welfare, among others, are essential for the enjoyment by all the people of the blessings of democracy.”
Panelo is suggesting that on the vaccination issue, a conflict exists between the individual and the common good. By citing the two provisions of the Constitution, he tried to convey that the welfare of the people is supreme over that of the individual person, but his legal foundation fails to show it.
When, in Section 4, the government is tasked to serve and protect the people, it means it has to serve and protect the interest of the individuals with flesh and blood that make democracy work.
The common good is best served by securing and protecting the interest of the individual person.
The protection of life, liberty and property, in Section 5, refers to personal life, personal liberty and property of individuals that constitute the Filipino people who are to enjoy the blessings of democracy.
The “people” remains an abstraction without the individual person. The individuals make democracy works. They produce goods and services, pay taxes and go to the polling place to elect or change officials of the government.
Indeed, a law is imperative to back up forced vaccination if only to uphold the protection of the individual person, which is mandated in Section 11, Article 2 of the Constitution, which, in fact, reinforces Section 5 of Article 2, declaring that “the State values the dignity of every human person and guarantees full respect for human rights.”
On the need of law to make vaccination mandatory, Section 1, Article 3 dictates that
“No person shall be deprived of life, liberty or property without due process, nor any person be denied equal protection of laws.”
Without a legislation or specific law mandating compulsory vaccination and criminalizing refusal to vaccination, due process (substantive and procedural) cannot be observed and upheld. Hence, arresting a person who refuses vaccination violates his life and liberty; it is illegal.
Meanwhile, the current COVID -19 vaccines are all still in clinical trials and are being used by governments under the concept of emergency use authorization (EUA). No one manufacturer has so far guaranteed the safety and reliability of its product; and is licensed and has the approval for the commercial production and distribution of the same.
Thus, considering the vaccines’ state of development, the choice to get the vaccine or not is better left to the discretion of the individual. Passing a law making vaccination compulsory with a vaccine that still puts at risk and danger the health and life of the citizens violates their right to life. Such a law, needless to say, is unconstitutional. (MindaViews is the opinion section of MindaNews. William R. Adan, Ph.D., is retired professor and former chancellor of Mindanao State University at Naawan, Misamis Oriental, Philippines.)