Based on the law, and Constitution, a court may likely be on the side of the state or private employer that makes vaccination of workers compulsory, once they have acted in a reasonably justifiable manner.
That is the conclusion of a regional Queens’s Counsel.
“…You look at the Constitution of St Vincent and the Grenadines, in particular the Bill of Rights, and you see numerous instances where the Bill of Rights is limiting a protected right in the interest of public health,” indicated Dr Francis Alexis, a Grenadian who also holds a PhD in Public Law and is a former Attorney General of Grenada.
He was speaking on the “Let’s get down to business” program for May 9, aired as a collaboration between IKTV and the Chamber of Industry and Commerce.
While the veteran lawyer’s stance remains that the state uses moral suasion and mounts a public education program on the matter; he gave his analysis on the legal grounds of making vaccination compulsory in St Vincent and the Grenadines(SVG).
Alexis pointed out that the right to not be arbitrarily searched in your body or property, the right to freedom of conscience, freedom of expression, movement, and protection from discrimination are some of the rights, noting an exception in terms of actions that are done in the interest of public health.
“The right to personal liberty specifically says in section three, subsection one, paragraph G, that that right is subject to the state taking measures to prevent the spread of infectious diseases,” the QC also noted, “and you will find other provisions concerned about hygiene, and property being the source of injuriousness to public health.”
Alexis stressed the provision against discrimination, because “…that section goes out of its way to make the point that there is no prohibited discrimination in setting standards or qualifications for holding an office or employment.”
Examining the section, “It is saying that the state may set standards or qualifications required of any person who is appointed to, or to act in any office or employment.”
The host, Executive Director of the Chamber of Industry and Commerce, Anthony Regisford, intervened here to ask whether this would include taking a Covid-19 vaccine if the state deemed it necessary.
“I would answer that question in the affirmative,” the Queen’s Counsel responded.
From the various provisions in the constitution which he mentioned, Alexis stated “…I think we can pick this: 1) all the exceptions to the provisions I’ve referred to, all of them pivot on the concept of what is reasonable.”
“…The question then arises: would it be reasonable for the state to prescribe mandatory vaccination?”
“We can answer that question with full confidence in relation to public workers, given section 13(5) (on anti-discrimination),” he opined.
He explained it would be reasonable in the sense that the employee is a direct contact person with persons served. A list of employees considered to be direct contact would have to be settled in a process involving employers, workers, Unions, medical doctors, Alexis noted.
He also addressed whether it would be possible if the private sector wanted to take the initiative, to set the standard with compulsory vaccination.
“…For one thing they would not be violating the constitution, because generally speaking the constitution is a compact between the state and the individual, meaning if the state is not involved, a violation of the constitution, generally speaking, would not arise,” and employers wouldn’t be subjected to a constitutional suit.
“Secondly, in any event, once what the private employer does is reasonable in the context of the Bill of Rights, and in this specific context of protecting the interest of public health, whether as the subject of a constitutional suit, or a private law suit, I would think the private employer can show that the private employer acted, one in good faith, two in accordance with positions of say- the World Health Organisation(WHO), Pan American Health Organisation(PAHO), the Medical Association,” Alexis noted.
Therefore, from where he sits, he reasoned that the private employer would be protected in law.
He reiterated that the legal test would be “what is reasonable enough in all the circumstances, so whether it’s private sector or the state – allowances have to be made for genuine exemptions. Somebody who has a medical history of getting unwell if subjected to vaccinations of whatever kind, allowances have to be made for those situations.”