Even though the world has waited and worked very hard for COVID-19 vaccines, 6 out of 10 Filipinos do not want to be inoculated with a COVID-19 vaccine, according to the latest Pulse Asia survey released last March.
The Philippines targets vaccinating 50 million to 70 million Filipinos in order to achieve herd immunity and jumpstart economic recovery.
But what if Filipinos do not want to get any vaccine, especially since vaccine fears are still being fanned by the Dengvaxia scare that had pulled down immunization rates in the country.
Can the Philippine government make COVID-19 vaccination mandatory?
It's a tricky subject. For now, COVID-19 vaccine is not mandatory, according to the Department of Health (DOH).
For Senior Associate Justice Estela Perlas Bernabe, Filipinos have the constitutional right to refuse the vaccine.
"Yes, because the right to health is a constitutional right and I think employees should be given the right to refuse or not to refuse this vaccine," Bernabe said during her Judicial and Bar Council (JBC) interview.
During her one-week stint as acting chief justice, Bernabe managed to get all judiciary employees to the A4 priority group for vaccination, the 4th priority group of essential workers.
Aside from the right to health, the constitutional right to privacy can also be a basis for opposing mandatory vaccination, said retired Supreme Court justice Angelina Sandoval-Gutierrez.
"The objection is that it will violate a person’s basic right to privacy. Moreover, Section 11 of Article II of the Constitution provides that the State values the dignity of every human person," Gutierrez told Rappler.
University of the Philippines (UP) constitutional law professor Dan Gatmaytan, however, said, "In my opinion, this pandemic will justify mandatory vaccinations considering the number of cases and deaths we are presently experiencing."
But there has to be a law, and the basis could be police power.
"Congress can enact a law that makes vaccination against COVID-19 mandatory. The state can invoke its police power to justify this measure, especially in light of the pandemic’s effect on our health care system and the number of cases and deaths," Gatmaytan told Rappler.
The Philippine Congress had previously enacted a law that made some immunizations mandatory before, but for children.
Republic Act No. 10152 makes immunization compulsory for all infants and children for tuberculosis, diphtheria, tetanus and pertussis, poliomyelitis, measles, mumps, rubella, hepatitis-B, H. influenza type B, and "such other types as may be determined by the Secretary of Health in a department circular."
RA 10152 is based on the constitutional right to health, or Section 15, Article II of the Constitution which says: "State shall protect and promote the right to health of the people and instill health consciousness among them."
"You will notice the provision speaks of people (including infants and children). What then will prevent Congress to enact a mandatory health immunization for people, for us?" Gutierrez said.
"Congress may enact that mandatory law not only on the basis of Section 15, Article II of the Constitution but also on the basis of the police power of the State," said Gutierrez.
Police power, Gutierrez said, is under Section 5, Article II of the Constitution, which says that: "The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy."
Justice Secretary Menardo Guevarra deferred comment.
"It involves policy and constitutional issues that require a lot of careful deliberation. It is possible that the matter may be raised before the Inter-Agency Task Force (IATF), or a bill may be filed in Congress, in which case the Department of Justice will certainly be requested to give its official position," said Guevarra.
Guevarra mentioned, however, that some of the issues involved would be due process, police power, exceptions, penalties, and availability of alternatives.
In the JBC interview, Bernabe said that if a judiciary employee refuses to take a vaccine, she would still allow the person to go to work "but I think I will be more strict with the safety protocols for that employee."
The JBC's retired justice Noel Tijam asked: "Notwithstanding Article 284 of the Labor Code which says in case of illness, or if an employee is suffering from any disease, the employer may terminate the service of an employee? Isn't it important that you also look into the health and wellbeing of the other employees?"
"Yes I agree with that but I think the right to health would still be important for this purpose," said Bernabe.
Article 284 reads like this: "An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees."
It seems like it will be up to policymakers to interpret the language of such provision, as Gutierrez pointed out the use of the word "may," which could indicate it's not mandatory, and the use of the word "and," which could mean there are two conditions for firing an employee – that the employee is both suffering from a disease and his or her continued employment is prohibited by law.
Gutierrez said: "You will notice the word 'may' and the following condition 'and whose continued employment is prohibited by law, etc.' The word 'and' is significant."
For Gatmayan, "this might be an exception as a ground for dismissal considering that there are treatments."
Section 5 of the Bill of Rights guarantees the freedom of religion.
In the US, Church leaders are expressing preference for brands in light of reports that a vaccine was made in part from cell lines of an aborted fetus.
If indeed such law is passed, a petition based on a religious objection could be filed before the Supreme Court to challenge its constitutionality, said Gatmaytan.
"These objections can prevail if the objector can show that there is no compelling state interest in mandated vaccination. The statute will be upheld if the government can show that there is a compelling state interest such as immediate danger to life or health," said Gatmaytan.
But Gutierrez said such petition would have to find case law "to back up their posture."
If COVID-19 vaccine is made mandatory, how vulnerable would the government be to suits from people who claim that vaccination caused them harm?
It will be recalled that the Department of Justice (DOJ) had previously charged health officials with reckless imprudence resulting in homicide over deaths that the Public Attorneys Office (PAO) is linking to the Dengvaxia vaccine.
Gutierrez said that if a law is indeed passed, "there will be definite provisions regarding the liability of the State. So any infraction as defined committed by health officials may be appropriately dealt with." – Rappler.com