Could we?

SEARCH FOR TRUTH - Ernesto P. Maceda Jr. - The Philippine Star

We’ll cross the bridge when we get there. Back in April, this was how the presidential spokesperson dodged the question of whether government would make inoculation compulsory.

To those opposed, the weightiest objection was equity. The unvaccinated sector was that way largely due to lack of access. The question of hesitancy was secondary since even the willing could not get the chance. With the endless parade of variants compounding, the bridge seemed a bit too far.

Today, according to the President himself, we are at the bridge. Vaccine supply has far outstripped demand. The throughput we still have to figure out but the mandatory vaccination option returns to the table as we pace to outrace the virus.

Executive. President Rodrigo Roa Duterte has declared his intention to mandate vaccination by executive order. Justice Secretary Menardo Guevara, Interior & Local Government Secretary Eduardo Año and presidential spokesman Secretary Karlo Nograles all concede, however, that the police power justification PRRD invokes would require the passage of a law.

Hence, the trio have been insisting instead and signaling that local government units (LGUs) are empowered to impose mandatory vaccinations in their localities. Congress by law, the Local Government Code of 1991, has authorized this.

Legislative. Sec. 16 of the Code is the statutory general welfare clause (GWC): “Within their respective territorial jurisdictions, local government units shall xxx promote health and safety, xxx, and preserve the comfort and convenience of their inhabitants.”

Aside from the GWC, each LGU can “approve measures and adopt quarantine regulations to prevent the introduction and spread of diseases” (Secs. 446, 457, 468). By law, this is their actual quarantine power.

Executive interpretation also acknowledges primary quarantine authority to be local. The Philippine Integrated Disease Surveillance and Response Manual of the Department of Health (DOH) recognizes that. “8.2.2. It is the primary responsibility of local government units to manage epidemic investigation and response.”

Judicial. Vaccinations could be mandated locally while Congress decides if it wants to take action nationally. The question now is whether the same will be constitutional. Only the Supreme Court can answer that.

We have no local precedent but judicial experience abroad is consistent. The European Human Rights Court concedes that “compulsory inoculation” interferes with the right to respect one’s private life. This includes integrity of a person’s mind and body. The same, however, can be justified in the interest of public health. Vaccination protects both the vaccinated and also the non-vaccinated who stand to benefit from herd immunity.

In the US, state police power may permissibly restrict fundamental rights on account of public health requirements. Again, Jacobsen v Massachusetts (1905) upholding mandatory vaccination for smallpox remains the vanguard. The abiding application of the doctrine, though, is uncertain. Science and medicine have developed exponentially. The decision’s underlying rationale, upon “the principle of self-defense, of paramount necessity,” however, remains ethically and legally sound.

Jab or Job. President Joe Biden is requiring federal government workers, by executive order, to get vaccinated or otherwise get regularly tested. There are also executive orders for health workers and large private businesses and contractors (employers with at least 100 workers). The last two have met with judicial challenges, with two federal courts issuing nationwide injunctions. Their basis? The familiar separation of powers. President Biden should wait for the passage of a law.

In the private sector, the consensus is that employers can make vaccination a condition of employment. A US Department of Justice opinion supports this view. Hence, termination for refusing is not illegal. If employees have the liberty of choice, then the coercive nature of the policy is vitiated. In a survey last month, a majority of US employers already have or will require vaccination.

Here at home, we still follow the WHO advisory of encouraging voluntary and informed decisions. The Department of Labor and Employment is clear that “any employee who refuses or fails to be vaccinated shall not be discriminated against xxx or terminated from employment. ‘No vaccine, no work’ policy shall not be allowed.” The DOH reminds all that R.A. 11525, the COVID-19 Vaccination Program Act of 2021, states that vaccine cards shall not be considered an additional requirement for employment purposes.

Putting it together. This classic from Mr. Sondheim’s Pulitzer Prize winning musical drama “Sunday in the park with George” provides a lyric that captures our philosophy of writing: “… pointing at the subtext by inflection.” Readers who have embraced our style know this to be the essence as we eschew outright pontification. Understanding the story within the story can be its own reward. And it provokes the drawing of your own conclusion.

Finding that easter egg of a line made it real for me in this showpiece of a song. What a relatable experience hearing Stephen Sondheim on the creative process and set to music we can unexpectedly own. For us, it could be a grind. To him, it was the art of making art: “Bit by bit, putting it together ... schtick by schtick ... x x x Art isn’t easy. Every word, every line. Every glance, every movement. You improve and refine. Then refine each improvement …” The art of making art is putting it together.

Late night show host Stephen Colbert summed it up to the man himself: “I will always be grateful to you for laying out the desire and the beauty of the act of creation itself, regardless of where that may take you.”

Where it took Mr. Sondheim is to legend. Somewhere (as lyricist, West Side Story), Being alive (Company), Not while I’m around (Sweeney Todd), Not a day goes by (Merrily We Roll Along), Send in the clowns (A Little Night Music) are personal favorites from his prolific, transformative and magisterial body of work. The plays for which these immortal songs were written were not smash successes (it was West Side Story the film adaptation that was catapulted to cult status). But his words and music struck searing chords that resonated much deeper than the latest formulaic musicals. Today’s audiences, in his words, “don’t want to be challenged.”

Genius, revolutionary, sage. Thank you for the music, Maestro.

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