Vax by demand
The case for the imposition of mandatory vaccination against COVID-19 in Jamaica — Part 1Sunday, September 12, 2021
Where is the legal opinion provided by the chief advisor to the Government of Jamaica (GOJ) in civil matters, the Attorney General, addressing the issues concerning the whether the imposition of mandatory vaccination against COVID-19 — the disease caused by the novel coronavirus (SARS-CoV-2) — can stand the scrutiny of a constitutional challenge? Was one requested by the prime minister, as head of Government? The issues are most serious at this time.
There is no doubt that COVID-19 continues to wreak havoc on our lives and livelihoods over the past 18 months. And, Prime Minister Andrew Holness has recently alluded to and addressed his mind to the fact that any step taken by the Government to mandate vaccination against COVID-19 could be met with constitutional challenges. However, it is the writer's respectful view that a case can be made for the imposition of mandatory vaccination against COVID-19 in Jamaica, particularly due to how issues of constitutionality have been addressed since 2011.
It is not the intention of the writer to load this piece with legal jargon and a preponderance of case law, but to address what some may consider the resultant confusion of the state of the law by several pronouncements made in the media.
Almost a year prior to the first reported case of the novel coronavirus in Jamaica, the judgment of Julian Robinson v The Attorney General of Jamaica  JMFC Full 04 concerning the constitutional challenge to provisions of the National Identification and Registration Act (NIRA), which sought to usher in the National Identification System (NIDS), was delivered. At the outset, Chief Justice Bryan Sykes laid the foundation by which the court would approach the issue of constitutionality at paragraph 9, wherein he stated that:
“As will be explained later in this judgment, under the new Jamaican Charter of Fundamental Rights and Freedoms the proper test for constitutionality is that of proportionality… The old approach, manifested in the pre-charter cases, is no longer of great value in this new dispensation.”
It must be made clear the following principles before embarking upon the issue for consideration:
a) The Constitution of Jamaica is the supreme law, and if any other law is inconsistent with the said constitution, the constitution shall prevail, and the other law shall to be extent of the inconsistency be void;
b) The new Jamaican Charter of Fundamental Rights and Freedoms, introduced in 2011, bears similarity with respect to the provisions of the Canadian Charter of Rights and Freedoms, and as such the case law interpreting those provisions are applicable;
c) No right is absolute. Rights enjoyed under the constitution can be limited in the interest of public order, public health, public safety et al;
d) The pre-charter cases which were once used to address the issue of constitutionality are no longer applicable;
e) The Parliament of Jamaica makes laws for the peace, order and good government of Jamaica; and
f) Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights unless it can be shown that it is demonstrably justified in a free and democratic society.
The main issue for consideration is whether the imposition of mandatory vaccination, by way of legislation or otherwise, in light of the novel coronavirus pandemic, would be a proportionate response so as to preserve public health and safety of the citizens of Jamaica?
There are rights and freedoms within the charter which touch and concern the issue for consideration, being the imposition of mandatory vaccination, chief amongst them are:
i) the right to freedom of thought, conscience and belief and observance of political doctrines;
ii) the right to freedom of expression;
iii) the right to freedom from discrimination on the ground of being a male or female, race, place of origin, social class, colour, religion or political opinions;
iv) the right of everyone to respect for and protection of private and family life and privacy of the home; and
v) the right of every child to such measures of protection as are required by virtue of the status of being a minor or as part of the family, society and the State and the right to publicly funded tuition in a public educational institution at the preprimary and primary levels.
The considered view is that the relevant right to privacy under Section 13(3)(j) of the charter would be breached in the circumstances of any imposition for mandatory vaccination. Upon this being challenged, this issues concerning proportionality is then triggered.
Determining constitutionality - proportionality
The pre-2011 charter approach in any challenge to a law inconsistent with the rights and freedoms enjoyed by the citizens of Jamaica saw favour in the presumption of constitutionality and the burden of proving that the law is unconstitutional resting on the challenger. The post-2011 charter's position has altered the former and rendered the latter obsolete.
The approach is now one of examining the proportionality of the right which is being abrogated, abridged or infringed by satisfying the question, of whether this law is reasonably justifiable in a democratic society? This burden of proving same rests with the State, who has imposed the challenged law. Sykes defined proportionality in referenced Julian Robinson v The Attorney General of Jamaica  JMFC Full 04 as: “…the legal doctrine of constitutional adjudication that states that all laws enacted by the legislature and all actions taken by any arm of the State, which impact a constitutional right, ought to go no further than is necessary to achieve the objective in view”.
The courts have basically sought to examine the extent of the interference which the challenged law has imposed, and whether it is proportionate to the goal it seeks to achieve. At this juncture, one must ask the question: Is it that the imposition of a mandatory vaccination goes far enough in interfering with the rights and freedoms stated above so as to achieve the goal of preserving public health, order, and returning our society to normalcy?
Our courts in Jamaica have come to accept the Canadian authority of R v Oakes 26 DLR (4th) 200 in relation to how to apply the test of proportionality. The Court in Oakes was careful to note that: “The rights and freedoms guaranteed by the charter are not, however, absolute. It may become necessary to limit rights and freedoms in circumstances where their exercise would be inimical to the realization of collective goals of fundamental importance.”
In Julian Robinson v The AG, the learned chief justice was more expansive in his explanation of what constitutes proportionality, namely: “From my perspective, I prefer to think of the test as four criteria rather than in two stages. The four criteria are:
1) the law must be directed at a proper purpose that is sufficiently important to warrant overriding fundamental rights or freedoms;
2) the measures adopted must be carefully designed to achieve the objective in question, that is to say rationally connected to the objective, which means that the measures are capable of realising the objective (If they are not so capable then they are arbitrary, unfair, or based on irrational considerations);
3) the means used to achieve the objective must violate the right as little as possible;
4) there must be proportionality between the effects of the measures limiting the right and the objective that has been identified as sufficiently important; that is to say, the benefit arising from the violation must be greater than the harm to the right.”
These tests must be applied so as to resolve the issue at hand.
In Part 2, which will be published tomorrow, Monday, September 13, 2021, the test of reasonable and demonstrably justified in a free and democratic society will be reviewed, as well as the evidence material to a conclusion.
* 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 email@example.com.