Being Right


Remember when the medical experts said two years ago that it would only take “two weeks to flatten the curve”? And when that didn’t happen, they told us that things will be back to normal when the vaccines arrive? Well, now with nearly 95% of the National Capital Region’s target population vaccinated (MMDA Chairman Benhur Abalos declared it at 100%; see GMA News, Dec. 9, 2021), we’re still nowhere back to normal.

So now many in the country are in a snit because of the so-called “Poblacion Girl,” who escaped quarantine and apparently spent the night out with her friends. Then it was reported that she was COVID-19 infected and so were a number of her friends. What the news media bafflingly refuses to report is her vaccination status. After all, she should have at least gotten one vaccine shot (otherwise she wouldn’t have been allowed to travel by air) and so were her friends (otherwise they wouldn’t be allowed inside the bars). In any event, these vaccinated people triggered an Omicron panic. And yet it’s the unvaccinated that are being discriminated against? How does this make any sense?

It’s not as if current data is being inconsistent about the non-difference (infection transmission-wise) between the vaccinated and unvaccinated. St. Luke’s Medical Center reported (as of Jan. 3) that of their patients confined with COVID-19, 40% were unvaccinated, 40% vaccinated, and 10% already received booster shots, with two in the ICU. The Philippine General Hospital on the same day reported 60% of their COVID-19 patients as already vaccinated (with only 25% ICU occupancy). Mandaluyong then also reported that of their 67 COVID-19 patients, nine were unvaccinated and 58 vaccinated.

Apparently, vaccines aren’t that effective in protecting people from getting COVID-19. Even the hero of the pro-lockdown/ COVID-19 panic crowd, Dr. Anthony Fauci, declared that we are seeing people who are vaccinated and boosted who are getting breakthrough infections.” (“Fauci discourages fully vaccinated going to restaurants,” Jan. 2).

And most of those hospitalized for COVID-19, aside from perhaps the elderly or those with serious comorbidities, reported mild or moderate symptoms of runny noses, itchy throats, cough, low fever, and body aches.

Even then, one vaccine shot is reportedly ineffective against COVID-19 (hence why people are required to get second shots). So why the ban only against the unvaccinated? Why not also prohibit those with one vaccine shot from leaving their homes? But two vaccine shots without a booster are also said to be ineffective against Omicron. So why not prohibit those with two vaccine shots without booster from leaving their homes as well?

Why are the unvaccinated the only ones being discriminated against?

Hence why the Metro Manila local government executives’ measures against the unvaccinated (through MMDA Resolution No. 22-01) is utterly baffling. And it’s not as if they have any authority to do so in the first place.

The Resolution (released this week) needs individual city ordinances, which in turn need to be published. As the ordinances likely contain penal sanctions, they need a few weeks of publication before becoming effective. Unless that happens, there is no legal basis for malls, public transportation, etc., to deprive anyone of their rights.

However, even if such ordinances were enacted, they remain inherently questionable as no law authorizes local governments to discriminate against the healthy and unvaccinated. RA 11332 (referred to in MMDA Resolution No. 22-01) penalizes “non-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern.” But if you’re healthy (and the legal presumption should be is that you are), then why should your movements be restricted?

Other countries’ experiences show the futility of forced vaccination: “In the case of COVID-19 vaccines, the censorship aims to stamp out any questions about a universal vaccination program that, it is now clear, was based on the false premise that low-risk individuals must get vaccinated to halt the spread of COVID-19 and end the pandemic. Almost a year into the global vaccination campaign — and starting long before Omicron arrived — all the data stand in stark opposition to this belief.

“Rapidly waning vaccine efficacy and COVID-19 surges in countries and regions with high vaccination rates — including Israel, the United Kingdom, Singapore, and now Europe, as well as high-vaccination US states like Vermont — are evidence that vaccinated individuals can spread COVID-19 at rates comparable to the unvaccinated. Multiple studies have shown that viral loading vaccinated individuals with COVID-19 is the same as in the unvaccinated.” (“Forcing people into COVID vaccines ignores important scientific information,” The Federalist, Dec. 14, 2021)

The argument goes that depriving the unvaccinated of their rights is not discriminatory but merely done because “it’s for their protection” is simply inutile.

First of all, government has no right to deprive anyone of their rights, cannot intrude into one’s individual bodily autonomy, without due process and without equal protection, which are not present in this case.

As mentioned above, why target the unvaccinated for an Omicron variant whose symptoms are similar to the flu, where the aforementioned hospitals report that most of their COVID-19 patients either, a.) are already vaccinated and/or, b.) are merely having mild or moderate symptoms? Why target the unvaccinated when reportedly those with two vaccine shots are still not protected against Omicron if without boosters?

In fact, if the argument that the government is entitled to step in and deprive people of their rights for their own protection, then equitably the prohibitions should be imposed on those with underlying health conditions and senior citizens, vaccinated or not. Senior citizens (i.e., persons 60 years old and up), even after nearly a year of vaccinations, still comprise the substantial bulk of COVID-19 deaths in the country.

Even the IATF’s “resolutions” regarding “mandatory vaccination” for public and private employees (ref. IATF Resolutions 148b and 149, s.2021) and requiring bi-weekly tests on unvaccinated employees, are legally dubious. For exhortatory purposes, fine, but to impose a mandatory requirement? No. It’s just wrong. Notice as well the seeming lack of penalties therein for noncompliance.

Allowable intrusions into constitutional rights can (within certain conditions) be had but only through a congressional enactment. There is no law — not Bayanihan Acts I and II, not RA 11332, not RA 11469, not the Local Government Code — that authorizes the IATF to deprive citizens of their constitutional rights.

On the other hand, actual legal penalty is provided for under RA 11494 (Bayanihan II) for acts of discrimination done against any person in relation to COVID-19 measures. Any person (public or private) that so discriminates can be imprisoned for six months and fined P100,000.

RA 11525, Sec. 12, also makes clear that vaccination cards cannot be made a requirement for government or business transactions. More importantly, it also declares that vaccinated individuals shall “not be considered immune from COVID-19.”

The Executive Branch, of which the IATF is under, simply cannot demand mandatory vaccination. It goes against the Bill of Rights and the tripartite, equal branches of government principles of our Constitution.

Indeed, employers and employees, any citizen for that matter, that have been illegally or unduly or implicitly forced or coerced to be vaccinated just so they can exercise their inherent rights should take the appropriate legal measures.

The best and true checks and balance against undue government intrusion is not merely the words of the Constitution but the willingness of people to stand up for it.


Jemy Gatdula is a senior fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence

Twitter @jemygatdula