The government’s plan is seemingly based on the hope of a vaccine. That everything: personal liberty, schools, the economy, every other health concern, are all put on hold or of secondary concern until a vaccine arrives for COVID19 — a virus so horrifying and deadly that its present Philippine CFR is 1.6%, a known IFR (infection fatality ratio) of 0.1-0.2% overall, and an IFR of 0.04% for those below 70 years of age.

In any event, the question is: is it constitutional to impose mandatory vaccination for everyone? For this particular virus and under the present circumstances, the answer has to be no.

The main argument for those in favor of mandatory vaccination is the 1905 US Supreme Court case of Jacobson v Massachusetts. The popular interpretation accorded that ruling is that state police power allows the imposition of reasonable regulations to protect public health and safety. Mandatory vaccinations, it is posited, do not violate the constitutional right to liberty, individual restraints being sometimes necessary for the common good.

Harvard’s Alan Dershowitz supports this: “Let me put it very clearly: you have no constitutional right to endanger the public and spread the disease, even if you disagree. You have no right not to be vaccinated. And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”

Having said that, such arguments for mandatory vaccination ultimately fail. Renowned bioethicist Wesley J. Smith explains the inapplicability of Jacobson: “The decision does not stand for the principle that the federal government — or even state authorities — have the power to force everyone to receive a vaccination because there is a health emergency. Rather, it found that the United States cannot impose a national legal standard on a locality unless mandated by the Constitution, which in this case, it wasn’t.”

“Government cannot just pass any law it wants because there is a health emergency. So, here’s a question that must be answered in assessing Dershowitz’s claim of a broad power of the government in the current circumstance: Is the COVID-19 pandemic such a ‘great danger’ that it would be ‘reasonable’ to secure ‘the safety of the general public’ for the government to force everyone in the country to be vaccinated? It seems to me that the answer must be no.” (“Government Can’t Compel You to Take COVID-19 Vaccine,” May 26, 2020)

The reason has to do with context. COVID-19 is simply not smallpox, which is the subject of Jacobson. Smallpox has a CFR (case fatality rate) of 30% and is definitely one of the most lethal viruses in history. It’s also known to permanently scar survivors.

COVID-19 is nowhere near smallpox: aside from its low CFR/IFR rates (e.g. tuberculosis has a higher CFR rate at 35%), the coronavirus has an identified specific demographic that it relatively severely affects: the elderly and those with comorbidities. Practically 90% of the population (those below 60 years of age, if without another serious health condition) will generally come off unscathed from the coronavirus. The probability of a 0-29 year old, for example (without comorbidities), needing hospital treatment for COVID-19 (i.e. those affected severely or critically) is just 0.92%.

As of this writing, 62% of the 4,108 deaths are from the 60 years old and onwards. Those of the 0-29 year old age group (which comprise more than 53% of the population) constitute 5% (210) of overall deaths. For anyone 0-29 years of age, if one focuses on the recoveries and deaths within that age range: the mortality rate is 0.3%. Take away those with comorbidities, then the COVID-19 death rate for the 0-29 age group is practically zero. Compare this with a recent UNICEF report stating that “every day, 95 children in the Philippines die from malnutrition.” That’s 2,850 deaths monthly, 32,000 yearly. For children alone, during ordinary economic times. And this lockdown period is certainly no ordinary time.

The point is that with all that we know now about COVID-19, it would simply be unreasonable to impose a mandatory vaccination on an otherwise healthy and significant portion of the population, when the minority that is truly affected by the coronavirus has been identified. And even for that minority, the government can certainly apply less intrusive means to serve public health purposes that will not violate anyone’s civil liberties.

Notably, the misnamed “Mandatory Infants and Children Health Immunization Act of 2011” (RA 10152) contains no penalty for non-vaccination.

Even assuming a COVID-19 vaccine is proven safe (i.e., without harmful side effects), its effectiveness must also be addressed. Despite the years, flu vaccines have been shown to be merely 50-60% effective, that for tuberculosis perhaps 80%.

Setting aside for now arguments based on religious exemptions, ultimately the issue is about the exercise of police power, which requires compliance with the Constitution and legislation. It’s also necessary there be lawful subject and lawful means.

Mandatory vaccination for COVID-19 fails on those counts.

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.

His pardon will enable Pemberton to return somewhere in the US where he supposedly plans to complete his studies. Wherever he’ll be and whatever he ends up doing, however, what’s likely is that he’ll be part of, and even welcomed as a hero of sorts by the huge all-white company of gay, lesbian and transgender haters who discriminate against, harass, beat and even kill homosexuals, and African Americans, Jews, and immigrants for being “different.”

As the world’s only superpower, the United States thinks itself the only legitimate authority in disciplining or penalizing its nationals, especially its military personnel. As if in validation of that assumption, President Rodrigo Duterte has pardoned the US Marine Corps’ Lance Corporal Joseph Scott Pemberton.

The Justice Department was about to contest an Olongapo court decision ordering Pemberton’s early release when Mr. Duterte gave him an absolute pardon that surprised both his lawyer and Justice Secretary Menardo Guevarra. Pemberton was serving a six to 12-year sentence. He was convicted in 2015 of the brutal killing of Jennifer Laude, when, after sex with her, he discovered that she was a transgender. He was part of a contingent of US troops that under the Visiting Forces Agreement (VFA) regularly entered the country to further train their local counterparts in the arts of mayhem and to participate in the “Balikatan” (shoulder to shoulder) PH-US military exercises.

The Laude family, the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, human rights defenders and activist groups, and even Vice-President Maria Leonor “Leni” Robredo and some congressmen, have protested the pardon as an affront to Philippine sovereignty and an insult to the memory of Jennifer and the Laudes.

Not only Pemberton’s lawyer and Guevarra were surprised by the pardon. Duterte Spokesperson Harry Roque was initially also in the dark about it. In a previous life as a human rights lawyer and the Laude family’s counsel, he earlier criticized the Olongapo Regional Trial Court order for setting “a bad precedent.” But upon learning of the Duterte pardon, he justified it by saying it was probably a quid pro quo for the US to make any COVID-19 vaccine it may develop readily available to the Philippines. Roque may be right about its being part of a trade-off, but not about what the Philippines could get in return. What comes to mind instead is US military aid to the regime.

The Olongapo Court ordered the American’s early release on the basis of the Good Conduct and Time Allowance (GCTA) policy. But not only is its implementation suspended; the Board of Pardons and Parole never recommend its being applied to Pemberton. There is also the additional issue of whether it is at all applicable to those guilty of hate crimes, as Pemberton is. Mr. Duterte’s pardon put a stop to the dispute and the plans of the Laude family to appeal the order.

All this, plus the Secretary of Foreign Affairs’ foreknowledge of the pardon to the exclusion of Guevarra, suggest that the presidential decision was kept secret from other officials because the Palace did not want to provoke public indignation, and the conclusion that Mr. Duterte’s claims of pursuing an ‘independent foreign policy” are a sham. The pardon is, after all, consistent with every regime’s policy of keeping Philippine-US relations the way they have been for decades, rather than made to serve the ends of justice, or of Philippine independence and sovereignty.

The sentiments of the Laudes and the LGBTQ community are clear enough, and so are those of other groups that have been asking for the abrogation of the VFA, the Enhanced Defense Cooperation Agreement (EDCA) and other entanglements with the US disadvantageous to the Philippines that Mr. Duterte himself has questioned. He vowed only a year ago to stop the “Balikatan” exercises, although nothing came of that pledge. Early this year, he threatened to cancel the VFA in retaliation for the US’ refusal to grant his former police director general a visa.

Mr. Duterte had been ranting against US intervention in Philippine affairs and claiming that this is an independent foreign policy. How independent that policy is has been seriously challenged by, among others, his defaulting on holding China to account for its militarization and occupation of the West Philippine Sea. Most Filipinos have been demanding that Mr. Duterte do something to disprove the emerging description of his administration as a “Duterte-China dictatorship,” while denying that, like its predecessors, the regime is also a US dependency and the Philippines still a US client state.

With the Pemberton pardon, however, the regime is demonstrating that it is not solely China it is trying to please (and succeeding quite well in that enterprise) regardless of the consequences to this country’s sovereignty and people; it is the US as well.

No entity can serve two masters, but the Duterte regime apparently thinks itself an exception to that rule, or at one point thought so. There are signs that it could be changing its mind, thanks to the usual suspects — the stalwarts of the pro-US clique that every regime has not only tolerated but also welcomed into its ranks. But that group — at least two of its most prominent members who are among Mr. Duterte’s highest officials — seems to have reconciled itself at this time to their principal’s allowing a Chinese telecommunications company to locate its facilities in Philippine military camps despite security issues, and welcoming thousands of online gambling operations workers from China into the country. Unfortunately, the uneasy truce between the Sinophiles and the partisans of continuing US dominance can’t last. The inter-imperialist contention between the US, focused as it is on total dominance over land, sea, air and space, and China, which has its own hegemonic ambitions, won’t allow it for long. Sooner or later, either of them or both will demand even more of the Philippines than just accepting into the country its shadier citizens, or giving a hate crime perpetrator the privilege of serving half his sentence in the comfort of a military camp and then pardoning him.

In any event, his pardon will enable Pemberton to return somewhere in the US where he supposedly plans to complete his studies. Wherever he’ll be and whatever he ends up doing, however, what’s likely is that he’ll be part of, and even welcomed as a hero of sorts by the huge all-white company of gay, lesbian and transgender haters who discriminate against, harass, beat and even kill homosexuals, and African Americans, Jews, and immigrants for being “different.”

In the aftermath of the Vietnam War in 1975, sociologists warned that the violence internalized by half a million returning troops could find expression in the US itself. Those fears were not unfounded, as the number of murders and robberies escalated, many of them committed by veterans unable to find jobs suited to their martial backgrounds and to reintegrate into US society, whose days and nights were haunted by the demons of suffering, death, and inhumanity that they had witnessed and even inflicted.

Like each of those veterans, Pemberton is only one among many US troops deployed in almost every part of the globe constitute a sub-culture steeped in the ideology of domination, superiority, machismo, and entitlement that drives US hegemony. They and their fellows at home disdain other cultures and those who don’t fit established notions of what constitute “normalcy,” whether in politics, religion, race, or sexual orientation. In their eyes, Pemberton’s pardon validates what he did to Jennifer Laude as a legitimate response to his macho outrage over his damaged masculinity.

The Philippines’ “loss” is US hate-mongers’ gain. But that shouldn’t be the reason for anyone to think the Duterte pardon of Pemberton is a calculated jeer at US society. It is still an offense against this country’s sovereign right to penalize killers and other wrongdoers, whoever they are and wherever they’re from.