Supreme Court observes vaccination not mandatory but voluntary 

By S.S. Selvanayagam

After hearing parties on the Fundamental Right petition, the Supreme Court has observed, that for the purpose of clarification, vaccination is not mandatory but voluntary.

The Bench, comprising of Justices S. Thurairaja. A.L. Shiran Gooneratne and Achala Wengappuli, also observed and requested that to avoid confusion among the public it will be preferable that the Director-General of Health Services make all communications on behalf of the State and others may avoid making any communiqué. 

If anyone makes any statement or communiqué without the approval of the Director-General of Health Services (DGHS), he/she will be responsible for the same.

The petitioners were Social/Medical Anthropologist Dr. Darini Rajasingham, Chartered Marine Engineer Ranjith Senevirathne, and Chemical Engineer Hiran Fernando.

They cited Minister of Health Keheliya Rambukwella, State Minister of Primary Health Care Epidemics and COVID Disease Control Dr. Sudarshani Fernandopulle, DGHS Dr. Asela Gunawardena, National Medicines Regulatory Authority (NMRA) and the Attorney General (AG) as Respondents.

Dr. K. Kanag-Isvaran PC with Nigel Bartholomeusz, Dilshani Wijayawardana and Laskhmanan Jeyakumar instructed by Moahan Balendra appeared for the Petitioners. Additional Solicitor General Viveka Siriwardana with State Counsel Shiloma David appeared for the Minister of Health, DGHS, NMRA and the AG. The State Minister of Primary Health Care Epidemics and COVID Disease Control was not present and unrepresented. Court directed to issue notice on her.

When the matter was taken up, the Court inquired from the Attorney General as to the final authority in whom the responsibility for vaccinations rest.

Additional Solicitor General Viveka Siriwardene, representing the Respondents, informed the Court that the DGHS is in charge of the entire vaccination program and will be answerable for all activities of the Government.

The DGHS, in his Affidavit to the Supreme Court, submitted that the vaccination program of the State is not mandatory, and that the vaccine has been administered whilst preserving the autonomy and right to self-determine the acceptance of vaccines.

He further submitted that the Ministry of Health has not issued any law, regulation or communication mandating vaccination.

The Petitioners in their Counter Objection have submitted that the Minister of Health was reported in the press as saying that receiving two doses of the vaccine will be mandatory from next year and that there is no barrier to making the vaccination certificate mandatory when visiting public places.

Due to the importance and the urgency of the matter, they fixed it for support on 11 January next year on top of the list.

The Petitioners filed the petition Court in their own right and in the public interest and for the public benefit. They seek Orders from the Court to prevent the indiscriminate vaccination of children in the absence of proper data.

They bemoan that children are a target for indiscriminate vaccination in the absence of proper data, inasmuch as all COVID-19 vaccines have only received Emergency Use Authorisation and without the rigours of full clinical trials.

They lament that the vaccines have not been adequately tested for safety or efficacy, especially in children. Moreover, clinical trial data has also not been disclosed to the public for an informed choice to be made.

They urge that vaccine mandates are repugnant to bodily autonomy and the right to self-determine what may or may not be injected. Voluntary consent, being consent that is meaningful, valid and informed, is essential.

Petitioners highlight that the Pfizer trials were not carried out on South Asian populations living in South Asia with no evidence of vaccine trials done in Asia.

It states that history has shown that vaccines can be very useful instruments for fighting disease and epidemics, but vaccines can also have serious unintended side effects. That is why before vaccines are approved, they need to be properly tested and studied by thorough clinical trials and the test results must be available for scrutiny by independent scientists.

All of the COVID-19 vaccines have only received Emergency Use Authorisation, and have not been subject to the rigours of full clinical trials and the vaccines have thus not been adequately tested for safety or efficacy, especially in respect of children, the petition maintains.

However, it states that this does not however mean that these vaccines can be forced upon people, especially children, without all relevant data being made available for independent public and scientific scrutiny.

It states that the present petition should not be understood to be a petition challenging the present COVID vaccination program.

However, no coercive mandates for use of these inadequately tested vaccines, especially on children, can be issued. It is trite law that vaccine mandates are repugnant to the right of humans to autonomy and right to self-determine what may be injected into their bodies, the Petitioners state. 

They state, remarkably, rather than authorise vaccines that use existing tried-and-tested vaccine technology, the first COVID-19 vaccines to be authorised by the WHO were vaccines that use the brand-new messenger RNA (mRNA) technology platforms.

mRNA – Messenger ribonucleic acid plays a vital role in human biology, specifically in a process known as protein synthesis. Gene-therapy-vaccines were developed by Pfizer-Biontech and Moderna. Astrazeneca uses hybrid vaccine technology.

Currently there are six types of vaccines used in Sri Lanka: Sinopharm, Sinovac, Pfizer, Moderna, Astrazeneca and Sputnik. Sinopharm, Sinovac and Sputnik use traditional vaccine technology, whereas Pfizer, Moderna and Astrazeneca are mRNA vaccines.

There are three main approaches to designing a vaccine. Their differences lie in whether they use a whole virus or bacterium; just the parts of the germ that triggers the immune system; or just the genetic material that provides the instructions for making specific proteins and not the whole virus.

Unlike vaccines that put a weakened or inactivated disease germ into the body to trigger antibodies, mRNA vaccines delivers a tiny piece of genetic code from the SARS-CoV-2 virus spike protein to host cells in the body, essentially giving those cells instructions, or blueprints, for making copies of spike proteins. 

The spikes do the work of penetrating and infecting host cells. These proteins stimulate an immune response, producing antibodies and developing memory cells that will recognise and respond if the body is infected with the actual virus they elucidate.

mRNA vaccines use experimental technologies (gene-based) which have never been used in mass vaccination programs, they claim.

Pfizer had also sought indemnity and had also signed an indemnity clause with many countries that are using its vaccine, absolving the company from paying any legal cost in the event of substantial harm, they point out. 

The Petitioners state that it would be immoral and illegal to render Sri Lankan children guinea pigs to big pharmaceutical companies, since trials are still ongoing in other parts of the world regarding the efficacy and effectiveness of their products.