The government is currently mulling draft regulations under the Quarantine Act that would make it mandatory for health and education workers to show either a vaccination card to prove they have been immunized against Covid-19 or a negative PCR test before being allowed into schools and healthcare facilities. The draft regulations point out that under the Quarantine Act, unvaccinated staff or those without negative PCR tests who accede to the premises could face either a Rs 500,000 maximum fine or a prison term not exceeding five years. Those regulations are expected to come into force by 14 June.
The question is: can the state legally enforce mandatory vaccination or PCR tests for certain categories of workers under the Constitution? “I am of the view that we have to strike a balance between the public good and the individual choice of whether or not to get vaccinated,” says lawyer Sanjay Bhuckory, “I have no problem with the requirement of getting a PCR test beforehand.” In effect, current rules in place make Covid-19 testing mandatory in certain situations, such as during contact tracing or before being discharged from quarantine facilities. But making vaccination mandatory for certain types of workers comes as a dramatic U-turn from the government.
As recently as December 2020, to take one example, during a workshop jointly hosted with the World Health Organization, Health Minister Kailesh Jagutpal said: “The government is working to get vaccines for everybody, but it will not force the public to take them.” Still less, such a dramatic U-turn is taking place via regulation made by the health ministry, away from the glare of Parliament. “The government should not have done this through a regulation, people have a right to decide not to get vaccinated, the best way to do this should have been through introducing a constitutional amendment catering for such situations under a pandemic,” says Bhuckory.
But does the Constitution, as it stands, empower the government to make Covid-19 vaccinations mandatory for some? Can it be challenged in court? This is where there is some disagreement. On the one hand, Bhuckory argues that “by making vaccinations mandatory for certain categories of workers, you are affecting their access to their place of work and their livelihood and face the threat of sanction, this can be challenged in court”. On the other hand, constitutional expert Milan Meetarbhan tells l’express: “As a general rule the Constitution does envisage some derogations on certain rights provided they are reasonable and proportionate, and public health is one of them.” Strictly speaking, he adds that “the principle of mandatory vaccinations already exists,” pointing to mandatory vaccination for children by the health and educational authorities.
The main issue, he highlights, is how the government justifies this switch from the assumption of vaccines being voluntary to mandatory. “So far, everybody getting anti-Covid-19 vaccines have been asked to sign consent forms indemnifying the government, meaning it has been totally voluntary,” explains Meetarbhan. He is referring to section 5 in each consent form which reads: “I waive all claims against the state of Mauritius, the Global Health Partnership also known as GAVI Alliance, donor states or organisations, manufacturers of the vaccine and their agents or preposes for any adverse event following immunisation, including injuries and death, whether known or unknown, foreseen or unforeseen, which arise from/during or a result of the vaccine, regardless of whether or not caused, in whole or in part, by the negligence or other fault on their part, I release and forever discharge them from all claims.”
The real trouble the government would have in court is explaining how it is creating two categories of people; those who voluntarily signed consent forms to get the vaccines and waiving all rights against the government; and those categories of workers who were forced to take the vaccine to keep their jobs, some of whom may not sign any consent forms and may not waive government liability in case of an adverse reaction. “Would the government then be liable to one category, but not to another? It will be a complete mess, and although the Constitution may allow the government to make certain derogations, it is in situations like this that the government can find itself in trouble before the courts,” Meetarbhan concludes.