Mandatory COVID-19 Vaccination: A Jab at Fundamental Liberty or Crucial Injection to Public Health?

Written by Quek Yew Aun, third-year Bachelor of Jurisprudence student, University of Malaya.
Edited by Pravena Sreetharan.
​Reviewed by Ashley Khor Xin Hui, Ee Jie, and Celin Khoo Roong Teng.

The COVID-19 pandemic has cast a shadow on Malaysia’s growth and well-being for the past two years. Vaccinations have offered some light at the end of the tunnel — but is making it mandatory a step too far? This article explores the constitutionality of imposing mandatory vaccinations on the public.

I. INTRODUCTION
The unprecedented COVID-19 pandemic has been the primary focus of every Malaysian for the past two years now. Our everyday lives and the decisions governing them almost all but centred around the virus, or rather in trying to avoid it. With over 2,597,080 confirmed cases and 30,110 deaths as of 23rd November 2021,[1] it is evident that COVID-19 has wreaked havoc not only on our public healthcare system,[2] but also onto our economic and social frameworks.[3]
 
The future is unclear.

What is clear, however, are the solutions to the pandemic. COVID-19 is not humanity’s first or last brush with an invisible killer. Indeed, we have learnt valuable lessons from our survival of outbreaks like smallpox, H1N1 Influenza, and SARS. According to Dr Anthony Fauci — Director of the United States’ (‘US’) National Institute of Allergy and Infectious Diseases — the essential measures to curb pandemics are twofold: adherence to public health measures[4] and achievement of herd immunity through vaccinations.[5]
 
Although both measures deal with the intricate issue of personal liberty, this article will delve into the latter, specifically mandatory vaccinations. The author will first introduce the concept of vaccination and the existing practices in Malaysia. Subsequently, the fundamental liberties guaranteed by the Federal Constitution will be examined before the relevant provisions are dissected to explore whether: (i) mandatory vaccinations violate fundamental liberties and (ii) whether there exists room within the Constitution for mandatory vaccinations.[6]
 
II. MANDATORY VACCINATIONS
Modern vaccinations have been around for a long time.
 
First developed during the smallpox pandemic in the 1800s, this medical procedure boosts the human immune system by preventing chronic symptoms, and in most cases, death.
 
By administering a weaker form of the virus into the human body, immunity can be developed through the natural antibodies thus protecting against target disease. Furthermore, herd immunity — where the spread of diseases is kept under control — can be achieved when a significant portion of the population is vaccinated.[7]
 
Malaysia is no stranger to vaccinations; as they are available as options upon birth and throughout nationwide school programmes. Notably, vaccinations are not mandatory despite the profuse scientific evidence of their medical benefits. That being said, the previous Pakatan Harapan administration in 2019 were particularly committed to making vaccines compulsory. This statement came after the death of an unimmunised two-year-old boy due to diphtheria, as well as a spike anti-vaccine sentiments.[8]
 
III. FUNDAMENTAL LIBERTIES AND MANDATORY VACCINATIONS
We cannot begin the discussion of fundamental liberties in relation to mandatory vaccinations without first referring to the Supreme Court of the United States decision in Jacobson v Massachusetts.[9] Despite the statutory ruling, Jacobson, an immigrant from Sweden, refused vaccinations for him and his son, as he had a bad experience with the procedure.
 
In a 7-2 majority ruling, the Supreme Court held that mandatory vaccinations do not contravene the right to liberty guaranteed by the US Federal Constitution.[10] The Supreme Court took a collectivist approach by allowing public health to supersede individual liberty — so long as the measures imposed do not ‘go so far beyond what was reasonably required’.[11]
 
The Court further explained that:

‘Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own (liberty), whether in respect of his person or his property, regardless of the injury that may be done to others’.[12]
 
Malaysia, as opposed to the US, is a common law jurisdiction. In parallel with Malaysia’s legal system, Article 21 of the Constitution of India reads: ‘No person shall be deprived of his life or personal liberty except according to a procedure established by law.’[13] From here, Article 21 can be broken down into three separate parts:

• No person shall be deprived of his life;
• No person shall be deprived of his personal liberty; and
• A person can be deprived of his life and liberty according to a procedure established by law.

 
Article 5(1) of the Constitution is in pari materia with the provision cited above, as ‘no person shall be deprived of (their) (i) life or (ii) personal liberty (iii) save in accordance with law’.[14] [Emphasis added]
 
Part (i) and (ii) will be addressed in this section, while part (iii) will be addressed in the next.
 
At first glance, the right to life takes on a literal meaning, i.e., the right to exist. However, historically, Malaysian courts have taken a liberal interpretation of life, most significantly in the case of Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor.[15] The Court of Appeal ruled that life encompasses ‘lawful and gainful employment’, receiving ‘benefits that our society has to offer’, and ‘to live in a reasonably healthy and pollution free environment’.[16] Furthermore, the Court held that the constitutional definition of life ‘does not refer to mere existence. It incorporates all those facets that are an integral part of life itself and those matters which go to form the quality of life’.[17]
 
Nonetheless, does this right to life cover the right to health? As there are no Malaysian cases pertaining to this matter, due reference can be made to the Indian case of State of Punjab v Mohinder Singh Chawla.[18] The case established the right to health as an integral component of the right to life, and that the government has the onus of providing health facilities to its people.
 
Personal liberty is discussed in detail in Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin & Another Appeal.[19] The Federal Court, in this case, adopted the decision in Government of Malaysia & Ors v Loh Wai Kong in ruling that personal liberty cannot be construed as liberty simpliciter, as it only relates to ‘the person or body of the individual’.[20] As a result, personal liberty does not extend to privileges such as the right to travel.
 
It remains the legal opinion of the author that mandatory vaccination does not contravene part (i) of Article 5(1) as vaccinations lead to a healthier life — not only for the individual but for general society. Even so, it is not unreasonable to interpret mandatory vaccinations as contravening part (ii) of Article 5(1). Since vaccinations are acts done onto the body, the state’s imposition of a mandatory medical procedure — irrespective of whether it benefits the individual — violates the individual’s right to self-determination. As such, it is unconstitutional.
 
Though this may be the case, it is important to take a closer look at part (iii) in determining whether the law may be imposed on rights granted by parts (i) and (ii) of Article 5(1).
 
IV. DOES THE FEDERAL CONSTITUTION ALLOW FOR MANDATORY VACCINATIONS?
As a preface to this section, it is vital to note that Malaysia practices the doctrine of constitutional supremacy. Such is clearly outlined in Article 4(1) that provides the Constitution as ‘the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void’.[21]
 
We now shift our focus to part (iii) of Article 5(1) — ‘in accordance with the law’. It is settled by virtue of Tan Tek Seng that law refers to both substantial and procedural law.[22] Does this then extend to any act passed by Parliament?
 
In Sivarasa Rasiah v Badan Peguam Malaysia & Anor, the plaintiff submitted that Section 46A (1) of Act 166, [23] which prevents any sitting member of Parliament from being a member of the Bar Council or a Bar Committee, violated Article 5(1).[24] The Federal Court held that the phrase ‘in accordance with law’ refers to a law ‘that is fair and just and not merely any enacted law however arbitrary or unjust it may be.’[25] In other words, Parliament may enact law that contravenes fundamental liberties, as long as the law does not result in unfair discrimination as defined by the Courts.
 
In India, there exist statutes that mandate vaccinations. To overcome the smallpox epidemic, the Vaccination Act 1880 and the Epidemic Diseases Act 1897 were both passed in the British Colonial era.[26] While the former has been repealed, the latter still contains provisions for mandatory vaccinations, which confer state governments power to make ‘regulations…as [it] shall deem necessary to prevent the outbreak of such disease or the spread thereof’.[27]
 
Such a provision also exists in Malaysia. However, said power is conferred onto the Malaysian Federal Government instead. Section 11(1) of the Prevention and Control of Infectious Diseases Act 1988 (‘PCID Act’) empowers the Minister of Health (‘MoH’) to declare any area as an ‘infected local area’ through an order. [28] Following that, Section 11(3) provides the lawful direction of any ‘person or class or category of persons’ living in said infected local area by an ‘authorised officer’.[29] This includes direction for treatment, immunisation, isolation, observation, and any other measures the authorised officer considers necessary to control the disease.
 
Section 2 of the PCID Act defines an authorised officer as ‘any Medical Officer of Health, any health inspector, or any officer appointed by the Minister’.[30] This definition has expanded the power to appoint ‘authorised officers’ under the Emergency (Essential Powers) Ordinance 2021 (‘the Ordinance’) to the ‘Yang di-Pertuan Agong (YDPA) or any person authorised by the YDPA’.[31] Although the state of emergency ended on 1st August 2021,[32] the Ordinance will only cease to have effect six months after this date as per Article 150 (7) of the Constitution.[33]
 
In effect, it is not unreasonable for the MoH to declare Malaysia as an infected local area, upon which authorised officers are to carry out mandatory vaccinations for all persons in response to the COVID-19 pandemic. The author opines that such executive action is constitutional, as there can be no discrimination when a scientifically proven public good is accessible to every citizen.
 
An instance of implementation of mandatory vaccination is illustrated by the unprecedented move of the Public Services Department — mandating all 1.6 million civil servants to be vaccinated.[34] Anyone who fails to do so may be subject to disciplinary action in accordance with the Public Officers (Conduct and Discipline) Regulations 1993.[35]
 
V. A JAB AT FUNDAMENTAL LIBERTY OR CRUCIAL INJECTION TO PUBLIC HEALTH?
Given the facts of the decided cases, the author agrees that mandatory vaccination would not contravene Article 5(1) of the Constitution and leans towards the utilitarianist ratio of Jacobson. To put it simply, he believes that the law on this issue should reflect the beloved Star Trek character Spock, i.e., ‘that the needs of the many outweigh the needs of the few’.[36] Urgent and adequate consideration must be afforded to any measure that can help allay an escalating COVID-19 situation.
 
This is especially pertinent as we observe concerning rates of vaccine hesitancy and growing anti-vaccine sentiments within Malaysian society due to false information. Coupled with the threat of COVID-19 variants, a delay in imposing mandatory vaccinations will cause profound negative impacts to the financial, health, and education sector.[37] In the past two years, we have all bore witness to businesses shuttering, daily death rates spiking, and the inclusivity of online learning. Perhaps this jab at fundamental liberty should be condoned if it means that life can finally be injected back into an ailing Malaysia.

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Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.

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Footnotes:
​[1] Ministry of Health Malaysia. (2021). COVIDNOW in Malaysia. COVIDNOW. Retrieved from <https://covidnow.moh.gov.my/>. Site accessed on 24 Nov 2021.

[2] Hana Naz Harun. (2021, Jan 4). High daily numbers putting strain on health system. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2021/01/654256/high-daily-numbers-putting-strain-health-system>. Site accessed on 15 Apr 2021.

[3] Surendran, S. (2021, Apr 12). The State of the Nation: Bank Negara Malaysia Annual Report 2020 - Economy recovering, but there are speed bumps. The Edge Malaysia. Retrieved from <https://www.theedgemarkets.com/article/state-nation-bank-negara-malaysia-annual-report-2020-economy-recovering-there-are-speed>. Site acceed on 17 Sept 2021.

[4] This includes strict Standard Operating Procedures (SOPs), such as wearing masks, practicing physical distancing, undergoing temperature checks, employing contact tracing, and avoiding crowded areas.

[5] Schmidt, C. (2020, Dec 14). Fauci Explains How to End the COVID Pandemic. Scientific American. Retrieved from <https://www.scientificamerican.com/article/fauci-explains-how-to-end-the-covid-pandemic1/>. Site accessed on 18 Apr 2021.

[6] Federal Constitution (Malaysia).

[7] D’Souza, G., & Dowdy, D. (2021, Apr 16). What Is Herd Immunity and How Can We Achieve It With Covid-19? Johns Hopkins Bloomberg School of Public Health. Retrieved from <https://publichealth.jhu.edu/2020/what-is-herd-immunity-and-how-can-we-achieve-it-with-covid-19>. Site accessed on 17 Sept 2021.
​
[8] Channel News Asia. (2019, Feb 25). Malaysia committed to making vaccinations compulsory: Health minister. Channel News Asia. Retrieved from <https://www.channelnewsasia.com/asia/malaysia-vaccinations-immunisation-compulsory-diphtheria-boy-die-902506>. Site accessed on 17 Sept 2021.

[9] Jacobson v Massachusetts, 197 U.S. 11 (1905).

[10] United States Constitution amend XIV.

[11] See footnote 9 above, 28.

[12] See footnote 9 above, 26.

[13] Constitution of India (India) art 21.

[14] See footnote 6 above, art 5(1).

[15] Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261.

[16] See footnote 15 above, 288.

[17] See footnote 17 above.

[18] State of Punjab v Mohinder Singh Chawla (1996) 113 PLR 499.

[19] Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin & Another Appeal [2016] 4 CLJ 12.

[20] Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33, 35.

[21] See footnote 6 above, art 4(1).

[22] See footnote 15 above, 283.

[23] Legal Profession Act 1976 (Act 166 Rev. 2018) (Malaysia) s 46A (1).

[24] Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333, 334.

[25] See footnote 25 above, 346.

[26] Soumya Singh. (2020, Jul 11). Legality of Mandatory Vaccination In India In Light Of COVID-19. Libertatem Magazine. Retrieved from <https://libertatem.in/articles/legality-of-mandatory-vaccination-in-india-in-light-of-covid-19/>. Site accessed on 17 Sept 2021.

[27] The Epidemic Diseases Act 1897 (India), Act No. 3 of 1897, s 2.

[28] Prevention and Control of Infectious Diseases Act 1988 (Act 342 Rev. 2006) s 11(1).

[29] See footnote 29 above, s 11(3).

[30] See footnote 29 above, s 2.

[31] Emergency (Essential Powers) Ordinance 2021 (Malaysia) s 6(1).

[32] Reuters. (2021, Jul 26). Malaysia will not extend state of emergency, says law minister. Reuters. Retrieved from <https://www.reuters.com/world/asia-pacific/malaysia-will-not-extend-state-emergency-bernama-2021-07-26/>. Site accessed on 24 Nov 2021.

[33] See footnote 6 above, art 150(7).

[34] Teh Athira Yusof. (2021, Sept 30). Mandatory vaccination for all civil servants, says PSD. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2021/09/732346/mandatory-vaccination-all-civil-servants-says-psd>. Site accessed on 3 Oct 2021.

[35] Public Officers (Conduct and Discipline) Regulations 1993 (P.U.(A) 395) (Malaysia).

[36] A character played by Leonard Nimoy in the science fiction series, Star Trek.

[37] Syafiqah Salim. (2021, Aug 17). Covid-19: 43 new Delta variant cases identified in Malaysia, bringing total to 467. The Edge Markets. Retrieved from <https://www.theedgemarkets.com/article/covid19-43-new-delta-variant-cases-identified-malaysia-bringing-total-467>. Site accessed on 17 Sept 2021.