Malaysia

Boost it or lose it: is Khairy’s third-dose ultimatum legal?

Fomca condemns ‘threat’, lawyers wary of possible contravention of fundamental rights

Updated 2 years ago · Published on 10 Feb 2022 7:00AM

Boost it or lose it: is Khairy’s third-dose ultimatum legal?
The point of contention surrounding Health Minister Khairy Jamaluddin’s recent warning on getting booster doses or having fully vaccinated privileges revoked concerns the absence of a constitutional provision mandating any form of vaccines. – The Vibes file pic, February 10, 2022

by Emmanuel Santa Maria Chin

KUALA LUMPUR – Health Minister Khairy Jamaluddin’s recent warning to Sinovac recipients and senior citizens to get their Covid-19 booster doses or risk privileges being revoked has triggered questions of its legality and even criticism from society.

The point of contention surrounding the seemingly arbitrary regulation concerns the absence of a constitutional provision mandating any form of vaccines, and claims that the revocation of fully vaccinated privileges is equal to the deprivation of one’s fundamental rights.

Among those more vocal about the recent warning is Federation of Malaysian Consumer Associations (Fomca) president Datuk N. Marimuthu, who told The Vibes he views Khairy’s directive towards the affected groups as an outright threat to heed the ministry’s instructions.

Marimuthu said Khairy has failed to provide proper justification to compel Sinovac recipients and senior citizens to get their booster shots, arguing that the requirement for a third – or even fourth dose – would depend on a person’s economical and living situation.

In my view, the booster dose is for those looking to travel abroad and move around here and there, but if you are 70 or 80 years old and you’re not going to travel anywhere, especially not out of the country, it does not make sense for them to get the booster.

“Another thing is you cannot threaten our lives by telling us you must take the booster shot or we will wipe out your status.

“Who are you (to do that)? You are not a god, you’re just a bloody politician. Don’t threaten us. Reading things like this on the news makes me feel sick; he cannot be threatening people,” Marimuthu said when contacted.

The Fomca president said the health minister should instead allow senior citizens to properly weigh their options over the booster dose and not rush them into it, explaining there are many still with reservations towards the possible adverse effects they might endure following immunisation.

“When we are comfortable, we will take it, but who are you to decide our future?

“Do not use threats. You need to be respectful to the citizens and properly justify your decisions,” he added.

Fomca president Datuk N. Marimuthu says Health Minister Khairy Jamaluddin should allow senior citizens to properly weigh their options over the booster dose and not rush them into it, as there are many still with reservations towards the possible adverse effects they might endure following immunisation. – Puncak Niaga pic, February 10, 2022
Fomca president Datuk N. Marimuthu says Health Minister Khairy Jamaluddin should allow senior citizens to properly weigh their options over the booster dose and not rush them into it, as there are many still with reservations towards the possible adverse effects they might endure following immunisation. – Puncak Niaga pic, February 10, 2022

Could revoking privileges of those already vaccinated be unconstitutional?

Constitutional experts who spoke to The Vibes offered consistent views that in the absence of a law mandating vaccines, legal and constitutional arguments would remain as opinions until a clear ruling and interpretation have been made by the courts.

Lawyer Fahri Azzat affirmed that the current law empowered to mitigate the Covid-19 pandemic, the Prevention and Control of Infectious Disease Act 1988 (Act 342), is directed more towards containment and preventive measures, sans any provision mandating vaccines.

“He (Khairy) has locus standi to make announcements on behalf of the ministry. He is the minister. The question is whether he has a legal basis for making such a threat.

It’s not that he has no mandate (to compel booster shots), but I don’t think he has been clothed with the appropriate legal provisions to be able to impose such a rule like the revocation for those that do not get the booster shot.

“I think a question that should be posed to him is: minister, which act or regulation empowers you to do that?” said Fahri.

Right to liberty, freedom of movement among key issues that may arise

Among the constitutional provisions that could potentially be breached with the revocation of the fully vaccinated status, as pointed out by the lawyers, are Articles 5 and 9.

Article 5 enshrines one’s fundamental rights under the federal constitution, which includes the right to life and personal liberty, and rights against wrongful arrest or detainment.

Article 9, meanwhile, ensures a citizen’s right to move freely around the country.

Constitutional lawyer Rajsurian Pillai said these provisions would most likely be triggered by anyone looking to challenge Khairy’s directive, but noted issues that may arise with the absence of a vaccine mandate.

However, the most pertinent questions would be those surrounding the fundamental rights as enshrined within the constitution.

“People have claimed their right to liberty, freedom of expression, their right to life, equality, their freedom of religion as the many reasons they used to avoid getting vaccinated.

“And, with the government responding by limiting their movement through the revocation of their privileges, this has become the point of contention right now, which is argued to go against one’s freedom of movement, the right to life, and such,” he said.

Lawyer Fahri Azzat affirms that the current law empowered to mitigate the Covid-19 pandemic, the Prevention and Control of Infectious Disease Act 1988 (Act 342), is directed more towards containment and preventive measures, sans any provision mandating vaccines. – LB Training pic, February 10, 2022
Lawyer Fahri Azzat affirms that the current law empowered to mitigate the Covid-19 pandemic, the Prevention and Control of Infectious Disease Act 1988 (Act 342), is directed more towards containment and preventive measures, sans any provision mandating vaccines. – LB Training pic, February 10, 2022

Judicial review: possible recourse for those seeking to challenge Khairy’s stance?

Fahri pointed out how the minister’s insistence could see the Health Ministry (MoH) challenged in court by way of a judicial review challenging its rules.

He added that it would be difficult to hold the Rembau MP personally accountable for the decision, but seeing that he is the health minister, his ministry will be the ones facing any court challenge.

Weighing in, Advance Tertiary College academic director Daniel Abishegam said despite data backing the benefits of getting vaccinated and himself agreeing with the push for all to receive their jabs, the legal standing of such directives is not watertight.

“Legally, this is something that has not been tested as yet, and such, all we have right now is just legal opinions. 

“I believe that the legality of any such action against those who have not gotten their booster will depend on the extent of the action taken.

Any actions that are designed to make life difficult for a person who has not obtained his booster may be seen as violating Article 5(1) of the federal constitution, as interpreted in the Tan Teck Seng case. 

“However, the constitution allows for an exception if it is provided by law,” Abishegam noted.

The Tan Teck Seng case involves the Court of Appeal’s interpretation of Article 5, where judges presiding over the case broadly ruled that a person’s right to personal liberty must be interpreted generously and liberally and should consider all aspects that are integral to life itself.

Abishegam also noted that any law made must pass the test of not being unjust and arbitrary – a view that must be settled by the courts.

So, the legality of any rules that are passed to make life difficult for people who are not getting booster shots will depend on the extent to which the rules go and how far they restrict the lives of the persons. If it goes too far, as determined by the courts, then it will be illegal.

“If it is reasonable, taking into account the greater need of keeping the society safe, then it will be legal and allowed,” he opined.

Khairy has given adult Sinovac recipients aged 18 and above and all senior citizens until March 1 to get their booster doses or their fully vaccinated statuses and privileges, such as dining in and travelling interstate, would be revoked from their MySejahtera application. – The Vibes, February 10, 2022

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