Two renowned commonwealth jurists have said that there’s sound constitutional basis for Governments in the eastern Caribbean to impose mandatory vaccination as the Covid-19 pandemic continues to impact the region.
Sir Dennis Byron and Professor Rosemarie Antoine have submitted the view to the Heads of Government of the Organisation of Eastern Caribbean States, OECS.
The OECS is a nine member grouping comprising Antigua and Barbuda, Dominica, Grenada, Montserrat, St Kitts and Nevis, St Lucia and St Vincent and the Grenadines.
Anguilla and the British Virgin Islands are associate members of the OECS.
The opinion from the two eminent legal scholars that mandatory Covid-19 vaccination is likely to be constitutional may be welcome news for some Governments across the region which are faced with a high rate of vaccine hesitancy as they seek to combat the raging pandemic which has killed 4.5 million people worldwide.
The view submitted by Sir Dennis and Professor Antoine that a mandatory vaccination policy, if pursued by Governments around the eastern Caribbean region, would be constitutional, was submitted in August.
The opinion is contained in a 16-page document which was entitled ‘confidential brief to the OECS Heads of Government’.
The document focuses on the legal dimensions of mandatory or compulsory requirement for vaccination.
Nationwide News has seen a copy of the legal opinion.
The leading jurists concluded in the document that there is ample provision in the constitution of OECS territories, corresponding jurisprudence and medical data, to support mandatory vaccination laws even in the face of counter-arguments alleging violation of rights.
Sir Dennis and Professor Antoine wrote that constitutions around the region generally empower Governments to take action which is reasonable and proportional to circumstances or threats which confront society.
The legal scholars wrote that the constitution of OECS member states generally give appropriate leeway for mandatory vaccination as a public health imperative.
Sir Dennis and Professor Antonie submitted that employers could justify a mandatory vaccination requirement in the context of a pandemic.
The legal scholars say it’s their view that mandatory vaccination would be especially considered legally sound if at minimum it’s enforced at workplaces which are considered as high risk – including healthcare facilities, other essential services or generally where workers are on the frontline and interacting with the public during the pandemic.
Sir Dennis and Professor Antoine say it’s unlikely that employers would be held to a higher standard than a constitutional standard.
In further indicating that there’s likely to be sound constitutional basis for a mandatory vaccination law, the legal luminaries wrote that such a policy during the pandemic within workplaces would be reasonable – both to protect other employees, the interacting public and even the employee who’d be mandated to take the Covid-19 jab.
Sir Dennis and Professor Antoine say increasingly the enduring state of the public health risk that is the Covid-19 pandemic and the science are pointing to even more liberal rationales for compelling vaccines at the workplace.
The jurists say ultimately all actions toward compulsory vaccination must be grounded in a firm belief that the policy is being pursued in the interest of the economy, enterprise, in the public’s interest, in the interest of all workers and as a last resort or necessity.
Sir Dennis and Professor Antonie say ultimately those core principles will be what justifies the regional constitutional standard – that actions by the state to confront threats, must be reasonable and proportionate.
The legal scholar says if those core principles are observed, Courts of law in the region are likely to be persuaded that mandatory vaccination is constitutional.
To support their view Sir Dennis and Professor Antoine say their finding that there’s credible legal basis for mandatory Covid-19 vaccination mirrors a position which emanates from a medical ethics submission which is enshrined in the Nuffield Report. That report is relied on by the World Health Organization, the WHO to shape its public health policy.
The report says mandatory vaccination can be ethically justified if the threat to the public is grave, the confidence in safety and effectiveness is high, the expected utility of mandatory vaccination is greater than the alternative and the penalty for non-compliance is proportionate.
Sir Dennis and Professor Antoine have written several of the legal texts from which law have for many years been taught in Jamaica, Barbados, Trinidad and across the commonwealth.
Sir Dennis was born in St. Kittis.
He’s a former president of the Caribbean Court of Justice. He’s also served as President of the Commonwealth Judicial Education Institute, and is former President of the International Criminal Tribunal for Rwanda, and former Chief Justice of the Eastern Caribbean Supreme Court.
Professor Antoine was born in Trinidad.
She’s the Dean of the Faculty of Law at the University of the West Indies St. Augustine Campus in Trinidad and also a Professor of Labour Law.
Professor Antoine has also served as a Commissioner of the Inter-American Commission on Human Rights.