Constitutional provisions which permit COVID-19 vaccine requirement for certain jobs in SVG

RELEVANT CONSTITUTIONAL PROVISIONS PERMITTING A REQUIREMENT FOR VACCINATION AGAINST COVID-19 FOR PARTICULAR JOBS OR JOBS GENERALLY IN ST. VINCENT AND THE GRENADINES

(Issued by the Office of the Prime Minister, SVG)

INTRODUCTION

Contrary to what some misguided, ill-informed or politically-jaundiced persons have argued, there are several provisions in the Constitution of St. Vincent and the Grenadines which permit a requirement for vaccination against Covid-19 for particular jobs or jobs generally.

Further, such a requirement for vaccination does not demand a declaration of a state of emergency under the Constitution.  Indeed, statute law (an Act of Parliament or appropriate Rules made under an Act) suffices, so long as the Act or Rules are not unconstitutional.  Last year, in St. Vincent and the Grenadines, a Public Health Emergency was declared under the Public Health Act because of the serious Covid-19 Pandemic.  This is a critical context.

Across the world (the Caribbean, USA, Canada, Australia, Europe, etc.), the Law Courts have upheld vaccination mandates as valid requirements for jobs (general or specific, public or private sector).

CONSTITUTION OF ST. VINCENT AND THE GRENADINES:  SOME RELEVANT PROVISIONS

As a public education effort, relevant sections of the Constitution of St. Vincent and the Grenadines are highlighted below:

1. Section 3 of the Constitution (Protection of Right to Personal Liberty), it is provided thus:

“(i) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say:

“(g) For the purpose of preventing the spread of an infectious or contagious disease.”

2. Section 9 of the Constitution (“Protection of freedom of conscience, including freedom of religion”).

Some persons claim an exemption from taking the Covid-19 vaccine on the ground of a deeply held religious belief; and some statutory provisions grant this exemption but it is not absolute and it has to be fact-based.

Although Section 9 of the Constitution protects the enjoyment of freedom of conscience, including freedom of religion, the very Section 9 provides limitation to the freedom or right.  Subsection (5) of Section 9 of the Constitution states that:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section [protection of freedom of conscience/religion] to the extent that the law in question makes provision which is reasonably required —

• in the interest of public safety, public order, public morality or public health;

“and except so far as that provision or as the case may be the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

3. Section 13 of the Constitution: “Protection from discrimination on the grounds of race, sex, place of origin, political opinions, colour or creed.”

Some persons misguidedly comment that a requirement for vaccination against Covid-19 in relation to a particular job is “discriminatory” and contrary to Section 13 of the Constitution.  Such persons are profoundly mistaken.

Subsection (5) of the very section 13 states:

“Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section [Protection from discrimination] to the extent that it makes provision with respect to standards or qualification (not being standards or qualifications specifically relating to sex, race, place of religion, political opinions, colour or creed) to be required of any person who is appointed to or to act in any office or employment.”

ASSOCIATED PROVISIONS OF RELEVANCE IN THE CONSTITUTION AND STATUTE LAW

• In the on-going discussion on vaccinations against Covid-19, some public servants assert an unfettered, individual “do-as-I-please” approach to the constitutional protection of freedom of assembly and association as provided for in Section 11 of the Constitution. But this protection is not unfettered.  The entire Section 11 reads as follows:

• Except with his own consent, a person shall not be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.

• Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision —

• That is reasonably required in the interests of defence, public safety, public order, public morality or public health;

• That is reasonably required for the purpose of protecting the rights or freedoms of other persons; or

• That imposes restrictions upon public officers that are reasonably required for the proper performance of their functions,

“and except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

There are relevant statute laws and regulations addressing these precise limitations or restrictions on the presumed absolute right of public officers to assembly or associate.

Please note that section 10 of the Constitution which provides for the protection of freedom of expression is similarly framed in respect of the limitations or restrictions on that fundamental freedom.

• In relation to the vaccination issue on Covid-19, the Public Health Act and associated pieces of legislation provide the framework for all relevant statutory provisions for employers, employees, and the public health interest.

GENERAL COMMENTS

The following comments, additionally, are relevant in the on-going discussion on vaccination against Covid-19:

1. The Government of St. Vincent and the Grenadines does not have a policy of mandatory or compulsory vaccination against Covid-19. It intends to make Rules under the Public Health Act to do the following, among other things:

• Offer the choice to “front-line workers” (for example: doctors, and nurses, police and prison officers, employees at the airports and seaports including Customs and Immigration officers). If the employee fails and/or refuses to comply with the requirement for those specific jobs, he or she is free to choose employment elsewhere.  Such a failure/refusal may constitute misconduct.

• Other central government employees and those in public enterprises who are not “front-line” workers, who are not fully vaccinated will be required to take the PCR test every two weeks. The employer (the State) will provide the first two tests free of charge; the subsequent tests will be paid for by the employee.  If for any reason a vaccinated public sector worker requires a test, for whatever reason, the test will be provided free of cost.

2. Despite the non-mandatory nature of the government’s policy, it should be made clear that the Constitution, the common law, and statute law permit mandatory or compulsory vaccination in the interest of public health and general public interest, especially during a very risky pandemic or public health emergency; In the extant factual circumstances of the pandemic, the legal tests touching and concerning “reasonable requirement”, “reasonably justifiable in a democratic society”, inclusive of “proportionality”, are easily passed by the State.  In these circumstances, the Courts have always accepted established science and facts (not conspiratorial myths) on the vaccines and have balanced any conflicting rights in favour of public health and public interest as advanced by the State as employer.

• The legal exceptions to mandatory vaccination have been recognized as fact-based “medical exemptions” and “religious exemptions”.

3. On Wednesday August 11, 2021, at a meeting of the OECS Authority (Meeting of Heads of Government of the OECS), the legal advice which was tendered by Professor of Law, Dr. Rosemary Antoine, and former Chief Justice of the OECS Supreme Court and President of the Caribbean Court of Justice (CCJ), His Lordship Denis Byron, squares with the articulated position of the government of St. Vincent and the Grenadines.

4. Meanwhile, the Government of St. Vincent and the Grenadines continues to promote the necessity and desirability of vaccination as a vital tool against Covid-19. In this regard, the government is at one with the stance of the World Health Organisation (WHO) and the position of all 193 member-countries of the United Nations.  Vincent and the Grenadines has a sufficiency of vaccines to vaccinate the adult population (over 18-year-olds).  Available are the AstraZeneca and Sputnik vaccines.  Shortly, St. Vincent and the Grenadines will receive a grant of Pfizer vaccines from the US government.

5. Both the common law and statute law justify the private sector employers adopting a similar stance on this matter as the government.

Issued by the Office of the Prime Minister of the Government of St. Vincent and the Grenadines, this 13th day of August, 2021.