Chief Justice Kamal Kumar will deliver his ruling on notice in the matter where the Fijian Teachers Association has applied for a constitutional redress after more than 200 teachers lost their jobs for not getting the COVID-19 vaccine last year.
FTA is seeking a ruling that the 'no jab, no job' policy was unconstitutional as it breaches a person’s right against getting a scientific or medical treatment or procedures without an order of the court or without his or her informed consent, or if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian.
They say it also breaches an individual’s right against direct or indirect discrimination on the grounds of their actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, disability, age, religion, conscience, marital status or pregnancy.
The FTA is represented by Simione Valenitabua while Devanesh Sharma and his associate, Gul Fatima are representing the Attorney General's Chambers, the Ministry of Employment and the State.
Valenitabua says if the Minister for Employment wanted to infringe on the right of a person against a medical procedure then they must have applied to the court and stated why the Vaccine Regulation is important, and then the court would have made a decision.
The lawyer also says for any public health issue, the Health Minister should be making the relevant laws however, the Employment Minister has usurped the Health Minister’s power by making provisions and applying it across the board when he has no power to do so constitutionally or through the Parliament.
He adds the Regulation is unlawful and unconstitutional as the Employment Minister has not informed the court that he is in compliance of the Constitution.
While responding to Valenitabua’s submissions, Sharma says the vaccination is not mandatory and no one is being forced to get vaccinated as they gave their consent.
Sharma says the rights of a person under the Regulation is diminished as the Health and Safety at Work Act is about protecting the health of employers, the staff and anyone who enters the work place.
He says it is a person’s choice but it comes with consequences and this is where the Regulation comes in to protect the workers so the requirement that a court order to limit the right does not hold because vaccination is not mandatory.
Devanesh Sharma says the Regulation does not take any right away from the Health Minister as the Health and Safety at Work Act covers everyone and not just the staff of the Health Ministry.
He says people must come to court with clean hands and FTA General Secretary Paula Manumanunitoga provides no evidence how they are protecting their workers and asks if they are adamant that vaccination is discriminatory then what independent research has been provided by FTA that the vaccination does not protect people.
Sharma adds the Regulation stated the Acts under which the power is given to the Permanent Secretary to enact the Regulation.
In his response to Sharma’s submission, Valenitabua says the FTA has not been closed down so they are in compliance with all relevant regulations.
Chief Justice Kumar asked if this means the staff are vaccinated to which Valenitabua responded that they are but they have been forced.
Valenitabua says the vaccination consent goes out the window because the Regulation forces them to get vaccinated or else they would lose their job.
Stay tuned for the latest news on our radio stations
