What is reasonable and demonstrably justified in a free and democratic society must be measured against the socio-cultural and economic background of the country. The standard of proof to be employed by the State is that of the civil standard on a balance of probabilities.

Cogent and persuasive affidavit evidence would have to be adduced by the State in showing that the imposition of mandatory vaccinations in the circumstances would preserve public health, public safety, and public order. Therefore, the science behind the COVID-19 vaccines and the effects when an individual is unvaccinated must be presented to the court.

Vaxxing in Ja to preserve public health

The process of mandatory vaccination is not new to Jamaica and is already part of the legal landscape. As a matter of fact, it is ingrained in our culture to have every child vaccinated against communicable diseases such mumps, rubella, et al. Normally, proof of vaccination has to be shown before a child is admitted at the early childhood, primary and secondary learning institutions.

Under the Public Health (Immunization) Regulations 1986, the secondary legislation to the Public Health Act 1985 (PHA), there is a duty imposed by law every parent of any child to have the child immunised. It does not escape the writer that the Act and accompanying regulations predated the 2011 charter. If challenged, these regulations would be subject to the same test of proportionality. It is presumed that any imposition by the Government to mandatory vaccination would come by an amendment to the PHA to include in the list of communicable diseases, COVID-19. Therefore, an examination of the PHA is necessary.

The PHA is the primary legislative vehicle used to ensure that public health and safety is preserved. Despite not being qualified in the medical field, immunisation and vaccination require the same breaking of the skin with a needle. Immunisation is not foreign to our culture, and we have boldly saved our immunisation cards that have been submitted to the educational institutions upon applying for entry.

The cogent and persuasive evidence to be adduced

As the case law dictates, if any law which imposes mandatory vaccination is challenged, it will be incumbent on the State to adduce cogent and persuasive affidavit evidence which would show that the effects of the imposition of mandatory vaccination limiting the aforementioned affected rights vis-à-vis the objective of achieving some form of herd immunity (in light of several variants) is sufficiently more important; that is to say, the benefit arising from the violation is far greater than the harm to the inalienable rights being enjoyed.

The evidence to be adduced would come from medical and public health practitioners, economists and financial experts, psychologists and behavioural specialists, and educators. The evidence must include empirical data, similarly to that oftentimes displayed in Parliament and press conferences to show the adverse effects of COVID-19 (to include its several variants) on lives and livelihoods.

But what are the persuasive arguments which would prove the imposition of mandatory vaccination demonstrably justified in a free and democratic society? The following non-exhaustive factors must form part and parcel of the consideration:

i) the current level of deaths arising from the several variants of COVID-19 among those who are unvaccinated and, conversely, the data which supports the fact that less citizens die once they vaccinated;

ii) the high positivity rates of infection as a result of the several waves for which the non-pharmaceutical methods (curfews, no movement, and gathering restrictions) are not adequately addressing;

iii) the heavy burden on the health sector due to increased hospitalisation which has depleted the resources (oxygen and bed space) and basically sidelined those who require health care with other complications;

iv) the levels of fallout in the economy (deficits, inflation, decline in growth), loss of productivity, loss of jobs etc;

v) the onset of stress-related illnesses and decline in mental health as a result of COVID-19;

vi) the learning loss that our nation now faces as students are unable to have face-toface classes.( This is coupled with the technological divide which exists in urban and rural areas); and importantly

vii) the efficacy of vaccination and the benefits to all the aforementioned areas which have been adversely affected by COVID-19.

Last, and simply not least, the question of how will the mandatory vaccination regime be enforced. The court may pause at this hurdle. However, the Julian Robinson v The Attorney General of Jamaica [2019] JMFC Full 04 precedent sheds some light on how the court may rule in such instances.

Where there is a form of coercion, with failure attracting a criminal sanction, the court will certainly render that measure not being reasonably justifiable to the breach of the relevant right. The best approach to the issue of enforceability is to visit the offender with fines and refusal of entry to public spaces, access to governmental services and private sector workplaces (another legal dimension in light of our labour laws).

Based on the foregoing, it is the considered opinion of the writer that should the Parliament move to pass legislation which would impose mandatory vaccination of the citizens of Jamaica, and there is a constitutional challenge, the State would be in a position to demonstrate that this imposition would go no further than is necessary to achieve the objective of herd immunity and preserving public health and safety. After all, it is justifiable in a free and democratic society.

Despite the position taken, there ought to be an exemption to those who cannot be vaccinated due to bona fide religious and medical grounds. Also, as a counter balance and proportionate measure, the State must, of necessity, implement insurance in place for one-off payments arising from complications due to taking the vaccines.

Life remains a balance for which there is no absolute position. These unprecedented times require leadership that will take courageous and brave decisions. The best way to end is by quoting Sir Winston Churchill: “It is not enough that we do our best; sometimes we must do what is required.”

* This does not constitute legal advice, but the intention of the writer is to further open the discussions surrounding the imposition of mandatory vaccination.

Demetrie Adams is an attorney-at-law and partner at Tavares Finson-Adams, Attorneys-at-Law. Send comments to the Jamaica Observer or demetrie.adams@yahoo.com.