Requiring vaccination cards a violation of fundamental rights? Lawyers give their opinion
José Aldenys Mármol shows the vaccination cards he received for the three doses. ((FILE/DANIA ACEVEDO))
Pancho Álvarez recognizes the right to health and free transit clash
Julio Cury believes Public Health overflowed its limits, and resolution is unconstitutional
Claudia Castaños warns of chaos in transport
Following the lifting of the state of emergency, the Ministry of Public Health adopted Resolution No. 000048, which, among other measures, requires a vaccination card for the population over 12 years of age to attend public and private places and access the different means of public transportation.
With this measure, rights such as free movement, freedom of assembly, and association will be limited by submitting an inoculation report. According to legal experts, without a state of emergency in place, this decision provokes a clash of fundamental rights.
For constitutional lawyer Francisco Alvarez, safeguarding the right to health prevails over the right to free transit, so he considered as constitutional the decision of the governing body of Health in the Dominican Republic.
“Here there are two rights that are in conflict, one is the right that a person has to free transit; but there is also the right to health that every Dominican has. In my opinion, the right that benefits the community must prevail. The most important right is the right to health,” said the jurist, who at the same time cited that in the United States, the same measure was adopted, and so far, no sector has challenged it.
However, Alvarez’s claim that no sector has challenged it couldn’t be more wrong, as GOP and whole states have threatened many lawsuits and challenges. https://thehill.com/regulation/court-battles/572649-24-states-threaten-legal-action-over-bidens-vaccine-mandate
Also, it is wrong, misleading, and completely false to say that we adopted the same measure as the US mandate pertains to health workers, workplaces, and companies only: not public spaces.
For the jurist Cristóbal Rodríguez, the resolution was applied in good right: “It is constitutional to impose restrictions to those people who do not get vaccinated, the State has the prerogatives to impose vaccination and to arrange restrictive measures to those people who refuse to get vaccinated.”
“We all have liberties and rights, but my liberties end where the liberties of others begin, I cannot be an agent of contagion, of contamination, an agent that bets on the collapse of the public health system and the contagion of others,” he emphasized.
However, this view seems not to consider the fact that all the most recent data from Norway, Iceland, Singapore, Gibraltar, and Israel indicate that vaccinated persons continue to spread and transmit the virus and, therefore, remain “agents of contagion.” Thus, there is a strong counterargument here that has validity.
Lawyer Julio Cury expressed the opposite opinion. For Cury, the agency overstepped its bounds by indicating no regulation in Dominican legislation that requires the presentation of a vaccination record to travel.
“This resolution violates the principle of legality provided for in Article 40.15 of the Constitution: ‘No one can be forced to do what the law does not command nor be prevented from doing what the law does not prohibit’. This is an administrative action that, although presumed valid and enforceable under Articles 10 and 11 of law number 107-13, violates the principles of legality and normative exercise of power, regardless of whether it was done in the general interest.”
Exigency to minors
Attorney Claudia Castaños considered that the organism correctly justified its motivations; however, she highlighted as a drafting error its article 3, where it directly demands vaccination from minors.
“A resolution cannot speak directly to a minor, a minor does not have the capacity to voluntarily go to a vaccination center if he/she is not taken by his/her parents,” she analyzed.
The article criticized by Castaños reads as follows:
“Persons over 12 years of age must present an identity document and their vaccination card with at least two doses of the vaccine against COVID-19….”
Another controversial point is whether it will be logical and practical to present the identity document and the inoculation card in the means of mass transportation such as the subway, cable car, and buses. Castaños warned that this could slow down the movement dynamics of citizens and, in turn, cause more delays, inconveniences, and jams.
The Ministry of Public Health motivated its resolution after ratifying the Dominican Republic as an endemic territory. This declaration allows it, according to the General Health Law, No. 42-01, in its article 149, to take the necessary measures to continue controlling and mitigating the spread of COVID-19 in the country.
Article 61 establishes that, in matters of disease prevention and control, it is up to the entity to dictate the norms for preventing and controlling diseases in the workplace. In turn, Article 63 states: “Every individual or legal entity, whether public, decentralized or autonomous, must diligently comply with the legal and regulatory provisions issued for the control of communicable diseases in the population.”
In addition, Article 53 of the General Health Law gives it sanctioning power by citing: “Industrial work establishments that do not comply with the regulations or that constitute danger, discomfort or unhealthiness for the neighborhood, will be closed by the health authority.”
If a citizen feels that his rights are violated with the new Public Health requirements, he can challenge this decision, said constitutionalist Pancho Alvarez.
When submitting an appeal to the Constitutional Court, the judge in charge will harmonize or weigh which right prevails. For the jurist, the right to health is above “a few who resist vaccination.” Article 74 of the Constitution instructs the magistrate what to do in the face of clashes of rights:
“The public authorities interpret and apply the rules relating to fundamental rights and their guarantees, in the sense most favorable to the person entitled to them and, in case of conflict between fundamental rights, they will seek to harmonize the goods and interests protected by this Constitution.”