Pertinent facts
For some countries, access to vaccines is increasingly a reality, and millions of vaccines have been purchased with the hope that in time the world’s populations could become COVID-19 immune [1].
The expectation is that with a vaccine, some aspects of life will return to normal – especially when it comes to travel – which has been particularly hard-hit. This is where a “vaccine passport” or “e-vaccination certification of compliance for border crossing regulations” to enable seamless border-crossing and the harmonization of varying national laws might become a required travel document [1].
The World Health Organization (WHO) is looking closely into the use of technology in the COVID-19 response, and how it can work with member states toward an e-vaccination certificate. Importantly, the framework will need to be harmonized, when it comes to standards and the use cases for the certificate, by a normative body like the WHO to ensure that it upholds ethical and equitable principles [1].
The Global Tourism Crisis Committee also recommended that vaccine passports must become essential travel documents in order to restart international tourism. It called for international health and travel bodies to step up the coordination of a standardized digital certification system, as well as harmonized testing protocols [2].
Dr Richard Dawood, a specialist in travel medicine at the Fleet Street Clinic in London, said proof of vaccination in order to travel is inevitable. “It won’t really be our choice – [vaccine passports] will de facto be a requirement by individual countries to prove immunity.” [2].
Other countries like Denmark are already developing a digital “vaccine passport” for people who have received a COVID-19 vaccine, a move that may enable them to travel to countries where such documentation is required during the pandemic [3].
There are concerns, however, as to the following: Whether vaccinations really prevent transmission; the difference between evidence of inoculation and evidence of immunity, and the rights of those people who may be unable to have the vaccine for health or other reasons [1]. Some experts also point out multiple hurdles to health passports, including the existence of different vaccines with different levels of efficacy and how long immunity lasts [2].
The World Travel and Tourism Council (WTTC) even branded the idea discriminatory. “We’re at the very early stage of the vaccine rollout. If you make vaccines compulsory it will mean an awful lot of people won’t be able to fly, even if they are COVID-free,” said a WTTC spokesperson. Further, “It’s far better to have a test-and-release scheme where travelers test before travel to prove they are COVID-free.” [2].
The Senate Bill No. 1999
The Senate Bill No. 1999 (SBN-1999) or “An Act Creating A Vaccine Passport Program, And Providing Funds Therefor”, introduced by Senator Pia S. Cayetano, suggests that having a vaccine passport program can facilitate the country’s COVID-19 vaccination efforts. Aside from creating and implementing a program which shall provide an individual’s record of COVID-19 vaccinations, the bill will address issues on identifying who has been vaccinated, what vaccination was given, how many doses have been administered, and other related matters. It shall further provide the government with a means to monitor distribution of the vaccines, including post-market surveillance [4].
Section 4 of the bill provides that individuals vaccinated against COVID-19 may be granted certain benefits or exemptions, subject to guidelines issued by the Inter-Agency Task Force on Emerging Infectious Diseases (IATF), which shall be clearly stated in the individual’s Vaccine Passport, such as but not limited to: (a) International travel, as may be allowed in foreign jurisdictions; (b) Non-essential domestic travel; (c) Local checkpoint and quarantine exemptions; and (d) Access to business establishments allowed to operate based on IATF guidelines.
The same Section states that individuals vaccinated against COVID-19 as indicated in the Vaccine Passport shall not be considered immune from COVID-19, unless otherwise declared by the Department of Health (DOH) based on reliable scientific evidence and consensus.
Is the bill constitutional?
The SBN-1999, particularly Section 4 thereof, may violate the equal protection clause under Section I, Article III of the 1987 Philippine Constitution.
Equal Protection Clause
The equal protection of the law is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Section 1 of Article III to provide for a more specific guaranty against any form of undue favoritism. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause [5].
It simply requires that all persons or things, similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others [5].
It does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars [5].
The Constitution does not require absolute equality among residents. It is enough that all persons under like circumstances or conditions are given the same privileges and required to follow the same obligations. In other words, classification based on valid and reasonable standards does not violate the equal protection clause [6].
Requisites for Valid Classification
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the laws, through whatever agency or whatever guise is taken [7].
What it simply requires is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification. Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class. “Superficial differences do not make for a valid classification.” [7].
The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-application of the law to him [7].
Strict Scrutiny Test
When suspect classifications or fundamental rights are at stake, Equal Protection analysis requires the use of the strict scrutiny standard. As its name implies, this level of review is far more stringent than either rational basis review or intermediate scrutiny. For years, strict scrutiny was applied only in cases of laws which discriminated on the basis of race or national origin, but this exclusivity has been tested at times and might not persist indefinitely. This level of review, however, will not be applied simply because a law is, in its effect, prejudicial against a suspect classification or regarding a fundamental right. Rather, this high standard is intended to be a means by which particularly invidious or prejudicial discriminatory purposes, if it exists, can be brought to light [8].
In the case of Kabataan Party List vs. COMELEC, petitioners assert that biometrics validation gravely violates the Constitution, considering that, applying the strict scrutiny test, it is not poised with a compelling reason for state regulation and hence, an unreasonable deprivation of the right to suffrage.
Contrary to petitioners’ assertion, the regulation passes the strict scrutiny test.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. As pointed out by petitioners, the United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access, and interstate travel.
Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest, and the burden befalls upon the State to prove the same.
In this case, respondents have shown that the biometrics validation requirement under RA 10367 advances a compelling state interest. It was precisely designed to facilitate the conduct of orderly, honest, and credible elections by containing – if not eliminating, the perennial problem of having flying voters, as well as dead and multiple registrants. According to the sponsorship speech of Senator Aquilino L. Pimentel III, the objective of the law was to cleanse the national voter registry so as to eliminate electoral fraud and ensure that the results of the elections were truly reflective of the genuine will of the people. The foregoing consideration is unquestionably a compelling state interest.
Also, it was shown that the regulation is the least restrictive means for achieving the above-said interest. Section 6 of Resolution No. 9721 sets the procedure for biometrics validation, whereby the registered voter is only required to: (a) personally appear before the Office of the Election Officer; (b) present a competent evidence of identity; and (c) have his photo, signature, and fingerprints recorded. It is, in effect, a manner of updating one’s registration for those already registered under RA 8189, or a first-time registration for new registrants. The re-registration process is amply justified by the fact that the government is adopting a novel technology like biometrics in order to address the bane of electoral fraud that has enduringly plagued the electoral exercises in this country [9].
Application
The bill, in effect, divides Filipino citizens into two classes (based on health status): (1) those who are inoculated with COVID-19 vaccine, and (2) those who are not. The former will be given Vaccine Passports and will have travel benefits or exemptions as provided for in Section 4 of the bill.
It may be contended that there is no substantial distinction between the two classes. The bill itself clarifies that individuals vaccinated against COVID-19 as indicated in the Vaccine Passport SHALL NOT BE CONSIDERED IMMUNE from COVID-19, unless otherwise declared by the DOH based on reliable scientific evidence and consensus. To reiterate, there are still concerns about the efficacy of the vaccines to prevent transmission, the difference between evidence of inoculation and the evidence of immunity, and the rights of those people who may be unable to have the vaccine for health or other reasons. Some experts from other countries also point out hurdles to health passports, including the existence of different vaccines with different levels of efficacy and how long immunity lasts.
Normally, vaccine development is a long, complex process, often lasting 10 – 15 years and involving a combination of public and private involvement [10].
In other words, there is no guarantee yet as to the efficacy of the vaccines to end this pandemic, rendering the distinction superficial. The bill will only give undue favor to those who have Vaccine Passports and unjustly discriminate against those who do not have for some valid reasons.
On the other hand, the focus of strict scrutiny is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest, and the burden befalls upon the State to prove the same. It may be said that there is compelling State interest in implementing Vaccine Passport Program, i.e., to help facilitate the country’s vaccination efforts and to aid in the fast recovery from the consequences of the pandemic. However, the bill fails on the second requisite for the reason that there are less restrictive means to achieve that end. To recap, the World Travel and Tourism Council (WTTC) suggested, “It’s far better to have a test-and-release scheme where travelers test before travel to prove they are COVID-free”. Making vaccination compulsory will mean a lot of people will not be able to travel locally or internationally. In addition, the Philippine Red Cross started its cheaper, faster, and easier saliva-based coronavirus testing on January 25, 2021. The said testing is Php 1,800 cheaper than swab testing [11]. Meaning, more people can avail of the tests as a pre-requisite to travel.
Conclusion
In view of the foregoing, it may be concluded that SBN-1999, particularly Section 4 thereof, may be unconstitutional for violating the equal protection clause. The non-vaccinated will be denied their right to travel and right to access establishments because of the superficial distinction imposed by the bill. The bill may also likely to fail the strict scrutiny test.
The government is also expected to formulate policies that will ease, not to add, burden on the citizens in these challenging times.
REFERENCES:
[1] World Economic Forum. (2021, January 20). What is a ‘vaccine passport’ and will you need one the next time you travel. Retrieved from https://www.weforum.org/agenda/2021/01/what-is-a-vaccine-passport-and-will-you-need-one-the-next-time-you-travel/
[2] The Guardian. (2021, January 22). Vaccine passports ‘essential’ for resumption of international travel. Retrieved from https://www.theguardian.com/travel/2021/jan/22/vaccine-passports-essential-for-resumption-of-international-travel-says-world-tourism-organisation
[3]. Reuters. (2021, January 8). Denmark developing digital COVID-19 ‘vaccine passport’. Retrieved from https://www.reuters.com/article/us-health-coronavirus-denmark-travel-idUSKBN29D1DM
[4]. Senate of the Philippines, 18 Congress. (2021). Vaccine Passport Program Act. Retrieved from http://legacy.senate.gov.ph/lis/bill_res.aspx?congress=18&q=SBN-1999
[5] Philippine Judges Association vs. Prado, G.R. No. 105371, November 11, 1993
[6] Tiu vs. Court of Appeals, G.R. No. 127410, January 20, 1999
[7] Biraogo vs. The Philippine Truth Commission of 2010, 637 SCRA 78
[8] LAW Shelf Educational Media. History of Equal Protection and the Levels of Review. Retrieved from https://lawshelf.com/coursewarecontentview/history-of-equal-protection-and-the-levels-of-review/#:~:text=Let%20us%20start%20by%20examining,%3B%20(3)%20Strict%20Scrutiny.
[9] Kabataan Party List vs. COMELEC, G.R. No. 221318, December 16, 2015
[10] The History of Vaccines. (2018, January 17). Vaccine Development, Testing, and Regulation. Retrieved from https://www.historyofvaccines.org/content/articles/vaccine-development-testing-and-regulation
[11] Rappler. (2021, January 25). Red Cross starts COVID-19 saliva testing on January 25. Retrieved from https://www.rappler.com/nation/philippine-red-cross-starts-covid-19-saliva-testing-january-25-2021