ANY law to compel people to get vaccinated is an infringement on personal liberty but the authorities have a duty protect the health of the masses, lawyers said.

At the same time, employers reserve the right to terminate employees who are not inoculated if they prove to be a danger to others at the workplace.

Malaysian Centre for Constitutionalism and Human Rights director Fahri Azzat said there are currently no laws that make vaccination mandatory, be it the Covid-19 vaccine or the hexavalent vaccine protocol for infants.

“There are currently no laws to compel people to take the Covid-19 vaccine. In terms of children, there are ways to nudge parents into doing so (vaccinating their children),” he told The Malaysian Insight.

From his own experience of registering the birth of his children, he found that the National Registration Department would not register the child’s birth without a vaccination card.

Even this method raises questions of legality as there are no specific laws that compel parents to vaccinate their children, Fahri said.

“Unless there is a specific law that makes it unlawful for people not to take the vaccine, it is well within their sphere of autonomy.

“I don’t know if it’s a good thing, to make it absolutely compulsory. It’s a tricky thing. That’s something that would require a bit more consideration.”

So far, Covid-19 vaccines are only mandated compulsory for workers in the civil service with exemptions for those who can’t take it for health reasons.

The Public Services Department has said it would discipline or terminate civil servants who refuse vaccination without medical reasons. It said the vaccination policy was introduced to boost public confidence in government services and to ensure their smooth delivery.

Nearly 98% of 1.6 million civil servants have been vaccinated while 1.6% have yet to register for the vaccine.

As for the rest of the population, Health Minister Khairy Jamaluddin has vowed to “make life difficult” for those who refuse to get vaccinated against the coronavirus.

Only fully vaccinated individuals are allowed to dine out in restaurants, travel interstate and go on holidays.

Khairy said those who refuse the shots could be made to undergo regular health tests that they will have to pay for themselves.

He has been criticised by lawmakers such as Opposition Leader Anwar Ibrahim, who urged the government to use reason rather than threats to persuade people to get jabbed

The National Union of Bank Employees president called Khairy a bully for his heavy-handed approach.

Anti-vaxxers entitled to views

Senior lawyer Mohamed Haniff Khatri Abdullah said the government and regulatory bodies should respond to those against vaccination with scientific facts.

He said pursuant to article 5 of the Federal Constitution, people are entitled to the right to life and liberty.

“The right of life under the constitution allows you to live your life as you wish so long as it doesn’t go against the law.

“You can always have a law to protect the majority against the minority but you cannot discriminate against the minority.”

Haniff said forcing the vaccine on people by way of a mandate or law could open the gate to legal actions against the government.

“If they (who are against the vaccines) can prove beyond reasonable doubt with the advent of research and scientific discovery that it is a fallacy that vaccines are bringing down Covid-19 hospitalisation and deaths, they will have a case. But the burden of proof is very heavy on their side.”

Alternatively, if the group could prove that a majority of Malaysians rejected vaccination, they could convince the government to reverse these laws and restrictions, he added.

On September 13, group of parents of 18 children in Penang filed for a judicial review to stop the government from vaccinating minors under pending the completion of clinical trials for the drug ivermectin which is used to treat parasitic infections.

The case is ongoing.

Employers may sack unvaccinated employees

Philip Koh, adjunct professor at Universiti Malaya, said while he is against the idea of a vaccine mandate or law, employers have the right to take action against employees who choose not to get vaccinated.

“Forcing individuals to take the vaccine is a severe intrusion on the autonomy of choice for the individual and respect for the privacy for any individual or family who decline the vaccine.

“However, when you are not allowed to go to a public space when you are not vaccinated, that is not a complete intrusion on human rights,” he said, adding that bosses have a right to protect their customers and their business too.

He added that it was also the right of the public not to be exposed to possibly deadly infections.

That also applies to employers seeking to create a safe working space for their employees, he said.

“The employers have the discretion and prerogative to keep their workplace safe. If the employer’s decision is to prevent unvaccinated employees from entering the workplace, factory or office, because they need to safeguard other employees from an unvaccinated personnel, I see no reason why employers can’t do so.”

While the unvaccinated have a right to employment, Koh said, employers also need to safeguard the livelihoods of other employees.

“If there is a cluster in the factory, not only does the employee who is not vaccinated lose employment, so do dozens of others who won’t be able to earn were the factory to shut down.”

In August, an army sergeant was sacked and lost his pension for refusing to be vaccinated against Covid-19.

He was counselled several times before he was charged with insubordination and fired after the army authorities declined his request for a court martial where he could have been represented by lawyers.

He has since taken the armed forces to court for violating his rights under the constitution even though the army may mandate a vaccine under the Armed Forces Act 1972. – October 21, 2021.