Atty. Julius Gregory Delgado

Vaccination National Directive: Another Ebralinag Looming Before the High Court

“Vaccines are working”, quipped some observers upon seeing drastic drop of both active and new cases which resulted to loosening of restrictions all over the country. On 11 November 2021, the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (“IATF”) issued Resolution No. 148-B, Series of 2021 (WHOLE-OF-NATION APPROACH TO ENCOURAGE VACCINATION BY MANDATING ALL ESTABLISHMENTS AND EMPLOYERS IN THE PUBLIC AND PRIVATE SECTOR TO REQUIRE ELIGIBLE EMPLOYEES WHO ARE TASKED TO DO ON-SITE WORK TO BE VACCINATED AGAINST COVID-19). With effectivity starting on 01 December 2021, both the public and private sector adopted and implemented such directive.

However, it is not without any uproar and objection raised by those, not necessarily anti-vaxxers, but are still unsure if they would want to be vaccinated either of these grounds: 1) religious reasons or conscientious objectors; 2) right to privacy or the right to be left alone or decide what to do with their bodies; and/or 3) hesitancy because the vaccines available are still to be tested thoroughly having been approved or granted license on emergency basis. The way the legal minds in Malacaňang crafted and worded IATF Resolution No. 148-B, it is not really a forced vaccination as workers who are required to work on-site have the alternative or option to undergo RT-PCR Testing once in every two (2) weeks. However, groups who are planning to question this national directive in court is arguing that this is effectively forcing people to get inoculated because of the burden imposed to those unvaccinated individuals. An eligible person who opts not to be vaccinated may not be terminated or disciplined from employment. But if he or she does not comply with the RT-PCR Testing as required by this national directive of the IATF, it may result be considered insubordination both in the realm of disciplinary proceedings both in the public and the private sector.

A group or person who will bring this national directive before the Supreme Court may argue that the IATF has no policy-making authority. However, it should be noted that the IATF was created by virtue of Executive Order No. 168, Series of 2014, dated 26 May 2014 issued by the late President, Hon. Benigno Simeon C. Aquino III to address public health emergencies. Under Section 2 (f) of EO 168, the IATF has the power “to adopt measures to strengthen the emerging and re-emerging infectious Disease Program of the Department of Health or its equivalent in other local health units.” In retort, a person or group who will question this national directive before the Supreme Court may claim that IATF Resolutions are merely guidelines and recommendatory in nature such that the President had to issue Executive Orders adopting previous Resolutions such as Omnibus Guidelines on Community Quarantine Classifications and recently the Alert Level System. Among the questions to be resolved would be, “Is Resolution No. 148-B, not having been adopted or implemented by an Executive Order by the Office of the President considered a law or statute for all intents and purposes?”

If these groups who are unhappy with this national vaccination directive will go to the Supreme Court, it is most likely that the doctrine in Ebralinag vs. Schools Division Superintendent, G.R. No. 95770 (01 March 1993), will come into light and may be re-examined again. In that case, the Supreme Court held that the members of the Jehovah’s Witness may not be expelled from school for their refusal to salute the flag, sing Lupang Hinirang and recite the Panatang Makabayan. The Supreme Court did a balancing of interest in upholding their religious freedom “how bizarre it may be” with compelling State interest to uphold patriotic fervor. The Court, however, held that “this should not be taken to mean that school authorities are powerless to discipline them” if they should commit breaches of the peace by actions that offend sensibilities, both religious and patriotic, of other persons. Hence, in that case, the Court held that if they quietly stand at attention during flag ceremony while their classmates and teachers salute the flag, sing the national anthem, and recite the patriotic pledge, it cannot be seen that their conduct may disturb the peace, or pose “a grave and present danger of a serious evil to public safety, public morals, public health or any other legitimate public interest that the State has the duty to prevent.” If this reaches the Supreme Court, my prediction is the Supreme Court will overrule religious freedom and right to privacy objections and will sustain and uphold State’s exercise of its police power to put an end to this public health emergency. The issue, however, would boil down whether the alternative or option of those who do not want to be vaccinated despite being eligible, i.e., RT-PCR Testing once in every two (2) weeks, is a reasonable imposition to meet the objective or it is oppressive and discriminatory under the overbreadth doctrine. If the Court rules that it is oppressive, discriminatory and excessive than what is sought to be achieved, then it may not be considered a ground for disciplinary action for insubordination both in the public or private sector.