Early this week, a national official argued for the constitutionality of mandatory vaccination by referring to a provision of the 1917 Administrative Code, as well as a 1936 Supreme Court ruling. But as is usual with arguments in support of mandatory vaccination, they are just ghastly and appallingly wrong.
The Supreme Court case in question was People vs. Abad Lopez (G.R. No. L-42199), involving a physician who certified his children as “vaccinated” and thus (he argued) no longer in need of vaccination, basing his contention on Section 1054 of the 1917 Administrative Code. The crucial provisions of the said Code for this case are as follows:
“Sec. 2694. Failure of person in charge of child to present same for vaccination. — Any parent, guardian, or other person, having charge of any child over one month old who shall fail to present the same for vaccination, as required by law, or who shall fail to return any such child to the vaccinating officer for vaccination of the effect of the operation, or for later vaccination, as the case may be, shall be fined P10 for each offenses.”
“Sec. 1054. Persons liable to vaccination. — Every person in the Philippine Islands shall submit to vaccination when thereunto lawfully required, unless he shall furnish satisfactory evidence either by a certificate from a physician or vaccinator, or otherwise, to effect that he is immune from the disease of smallpox. Such vaccination shall be performed gratis.”
The 7-4 decision (as there were 11 members of the Court at that time) led to the upholding of the conviction of Dr. Jose Abad Lopez, with the ponente (Justice John Adley Hull) making a reference to the US Supreme Court case of Jacobsen vs. Massachusetts.
But the crucial thing here is that by simply making a general reliance on Jacobsen, the Court fallaciously assumed that “the right of the State to compel compulsory vaccination is well established” and thus the constitutionality of the abovementioned provisions of the Administrative Code was “not put in question in these proceedings.”
The issue instead was simply the proper interpretation of the aforementioned two 1917 Administrative Code provisions, for which Justice Claro Recto’s dissent was the correct one: If a person “can produce such certificate, his obligation to present himself for vaccination ends.”
In any event, would the provision mandating vaccination against smallpox be constitutional? Perhaps. But saying so will not justify or make proper any present vaccination mandate against COVID-19.
Note that the Jacobsen case did not actually involve mandatory vaccination (as one can get out of the vaccination merely by paying a $5 fine). And both Abad Lopez and Jacobsen cases involved smallpox, which was a disease with a case fatality rate of 30%. Smallpox killed 500 million people in the last 100 years. This despite there being a vaccine (invented in 1796). Incidentally, the 1918-1919 Spanish Flu pandemic killed 50 million worldwide and has a case fatality rate (cfr) of 2.5%. COVID-19 (the supposed deadliest virus of all time, as COVID narcissists say) is being shown to have a cfr from between 0.9 – 2% (Philippine cfr hovers around 1.5% to 1.8%). To equate COVID with smallpox is plain ridiculous.
And even then, the 1917 Administrative Code does not really absolutely compel people to be vaccinated. A person can choose to be unvaccinated if one can “furnish satisfactory evidence either by a certificate from a physician or vaccinator, or otherwise, to the effect that he is immune from the disease of smallpox.” Otherwise, like in the Jacobsen case, one need only pay a fine (in this case, P10).
And an important point was made in the Abad Lopez case, and that is that questions like these are “for the legislature … to determine.” Thus, by extension, not the IATF (Inter-Agency Task Force for the Management of Emerging Infectious Diseases) or MMDA (Metro Manila Development Authority). And note that the 1917 Administrative Code was replaced by the 1987 Administrative Code, which removed and thus contains NO provision on mandatory vaccination. Statutory construction indicates this as legislative rejection of mandatory vaccination.
This rejection is supported by the fact that NO law exists requiring mandatory vaccination. The now expired Bayanihan Acts I and II, particularly the latter (RA 11494), even punishes acts of discrimination done against any person in relation to COVID measures. Any person (public or private) that discriminates can be imprisoned for six months and fined P100,000.
Neither RA 11332 (“Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act”) nor the Local Government Code authorizes the IATF or any government body to enforce mandatory vaccination.
RA 11525 (“COVID-19 Vaccination Program Act of 2021”), Sec. 12, also makes clear that vaccination cards cannot be made a requirement for government or business transactions and declares that vaccinated individuals shall “not be considered immune from COVID-19.”
As things stand, by dint of present constitutional and international law jurisprudence, Philippine legislation, and the science surrounding COVID-19, mandatory vaccination is completely unjustified, totally unreasonable, and downright wrong.
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