It is never an easy task to skillfully balance individual rights and the interest of the community. We have seen this movie over and over again. Today, this episode comes in the form of mandatory vaccination. Not in the best of circumstances, it has reignited the age-old debate over the public interest versus the private interest. As a consequence, the usual questions have been triggered: when is a good time to eschew fundamental rights and concentrate solely on the public interest for the preservation of life, peace and order? What has to happen for the population to adjust its social contract with the government and insert a clause which suggests: you can trample on my rights for the greater good? The delicate balance requires astute leadership.
COMMUNAL INTEREST IS NOT ABSOLUTE
It is well understood and accepted that in circumstances where the public interest is threatened due to public danger, a public health crisis or war, the public interest must take precedence over private interest. Thereby, it is no longer about you, it is about us. As a result, governments by way of emergency legislation or Presidential decrees can do what is necessary to protect lives and restore peace and order. In this, speed is necessary. Done and completed is better than perfect. Above all, action is far more expedient than non-action. Emergency legislation justifiably impinges on fundamental rights and generally, even the most ardent human rights activist understands that this imperfect lawmaking is necessary to save lives. However, it is not absolute. The global community has kept a watchful eye on the exercise of emergency powers via the American Convention on Human Rights (ACHR), the European Convention on Human Rights (ECHR), the African Charter on Human and Peoples Rights (AFHR), the universal UN human rights treaties, and the international humanitarian treaties, in particular the four Geneva Conventions of 1949 and the two protocols of 1977.
In addition, the drafters of human rights international laws have placed specific provisions which anticipate the possibility of abuse in times of public emergencies; the American Convention on Human Rights (Art. 27), the European Convention on Human Rights (Art.15) and Article 29 of the Universal Declaration of Human Rights. Article 27 of the American Convention on Human Rights reads in part: ‘In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin’. Writing in the International Journal of Human Rights, Mohammed Elewa Bada (2003) put the matter this way: ‘Any restrictions on the rights of freedom provided for in universal or regional human rights instruments must meet three requirements: first, it must be prescribed by law (the principle of legality); second, it must have justified one of the specified legitimate aims pursued in the particular article; and third, the limitation in all circumstances must be necessary in a democratic society’. I could not agree more. Therefore, the right to sacrifice individual rights for communal interest is not absolute, there needs to be a delicate balance.
THE INDIVIDUAL INTEREST IS NOT ABSOLUTE
The only fundamental rights which are somewhat insulated from intrusion by the state in any circumstance are; freedom of thought, conscience and opinion. All other rights are subjected to the need for the protection of life, order and peace. If the aforementioned are threatened, it is folly to steadfastly stick to the mantra-‘It is my right’. There are limitations. Once the community is threatened by your actions, the state can suspend individual rights. The logic here is self-evident, there ought to be no arguments. Your right has to be weighed against the rights of others. The most instructive and authoritative I have seen on the matter under the microscope of this column is the US Supreme Court case, Jacobson v. Massachusetts, 197 U.S. 11 (1905). In this landmark case, the court emphatically agreed with the state on the issue of compulsory vaccination. In a 7-2 majority opinion, the court supported the state in its suspension of individual rights and the activation of its police powers in the interest of the communal good. The court stated: “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own [liberty], whether in respect of his person or his property, regardless of the injury that may be done to others.” If this does not adequately underscore the point being made here, I cannot fathom what can.
THE DELICATE BALANCE
On the issue of mandatory vaccination, the matter is being fraught with some caveats and variables which may negate the application of the principles adumbrated above. Specifically, on the issue of whether Covid-19 in its current form constitutes a public danger which necessitates the application of a police state. John Hopkins University reports that thus far, there have been 206,178,552 Covid-19 cases, total deaths at 4,347,088 and total recovery at 185,040,241. As far as my untrained epidemiological eye can see, this data can probably be used to mount an argument that suggests that the public danger, as anticipated for the allowance of police powers by the state, does not exist. Here, the problem lies because a large swathe of the citizenry is not prepared to eschew their fundamental rights because they do not see the public danger. The appetite for the police state which they possessed at the start of the pandemic has subsided. As a consequence, there will be a visceral reaction to any coercive measures at this moment. Therefore, the situation requires exceptional leadership, the likes of which were demonstrated by statesmen throughout cataclysmic historical crises. If a country is not blessed with this authority, chaos will ensue. Coercion is easy, leading through influence is hard.
