Does the protection of fundamental freedom by the Federal Constitution mean that employers’ laws cannot prescribe vaccination against Covid-19?


KUALA LUMPUR (September 13): There are views currently being promoted that any prescriptive regulation or employment requirement for individuals’ vaccination status goes against a person’s freedom to choose NOT to get vaccinated. And it’s unconstitutional.

Interestingly, the express reference to public health in Part II of the Constitution is consistent with freedom of religion under Section 11 where the “right to profess and practice one’s religion…” is protected. Article 11, paragraph 5, expressly states that “…this article does not authorize any act contrary to a general law of public order, public health or morality”.

The protection of religious freedom provides a good test case on the issues surrounding anti-vaccine rhetoric and is contrary to the value of fundamental freedom.

We have empirical evidence (both global and national) that religious gatherings can give rise to Covid-19 clusters that have a devastating impact on the community. Some religious groups that reject scientific and clinical evidence also reject vaccination on the mistaken grounds that it manipulates the human genome and is therefore a “play to God”.

Can a religious believer who holds such views, i.e. that gatherings cannot be outlawed nor vaccination cannot be prohibited by law, invoke Article 11? The courts wrestled with this issue when the community of Jehovah’s Witnesses refused to allow blood transfusion on the grounds that it contravened Levitical Mosaic prohibitions. The courts have held that the State has a duty to protect, for example a child, such a community that may be the subject of hospital intervention despite the objections of the parents.

A new argument has also circulated that Article 8 provides that “all persons are equal before the law and are entitled to the equal protection of the law” and has the consequence that a vaccine resistant does not enjoy equal protection if there are prescriptive regulations for that person to return to their job or enter business premises where the public and other co-workers are present.

Such arguments are untenable. For the religious sectarian who believes that getting vaccinated goes against her religious beliefs, Article 11(5) delimits the parameter of her freedom to so decide.

As for the contention that prohibitions on employment and freedom to enjoy outlet amenities for the unvaccinated violate section 8, that too is untenable by constitutional reasoning. Any discrimination against such Covid-19 vaccine resisters is based on a “rational connection” and courts in all jurisdictions have upheld laws and regulations that are posed and justifiable on these grounds. A liberal democratic state is not unhappy to legislate for the public good and not all restrictions (as long as they are proportionate) on individual freedom of choice can be considered unconstitutional.

Philip TN Koh is a Barrister and Solicitor of the High Court of Malaysia and Professor (Adjunct) at the University of Malaysia.


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