By: Nina Žoher / Nova24tv
Last Thursday, the majority in the Constitutional Court of the Republic of Slovenia decided by seven votes to two to temporarily suspend the PC (recovery or vaccination) condition, which the Government introduced for civil servants in the fight against the epidemic with certain exceptions. An hour or two after the decision, the decision of the majority was made public. Constitutional Judge Klemen Jaklič advocated that the decision of the majority be published together with separate opinions the next day. Failing the motion and voting against the detention, he prepared a dissenting opinion by Monday morning. In any case, this was not published on Monday for an unknown reason, but only the next day, after Jaklič addressed the question to the President and Secretary of the Constitutional Court of the Republic of Slovenia.
Constitutional Judge Klemen Jaklič shared his dissenting opinion on the temporary suspension of the PC condition in the state administration in a column for readers of the legal information portal IUS INFO.
Biden introduced a mandatory condition PC by a decree in the USA
In the introduction, Jaklič emphasises that the PC condition is a well-known and carefully measured measure in the fight against the epidemic, although this was presented differently to the public. As an example, he cited the United States, where the US President Joe Biden passed a so-called executive order on September 9th based on analyses of the epidemic and advice from the US epidemiological profession, which considers vaccination to be by far the most effective measure. The order changed the previously prescribed PCT condition (recovery, vaccination, testing) for the employees of the federal state administration into a mandatory PC condition (recovery and vaccination only).
According to Jaklič, this is a measure that is identical in content to the assessed Slovenian regulation. “It is also about the same gradualness or proportionality of the implementation of such a measure – first PCT, and then due to the insufficient calming of the epidemic and the consequent need to achieve greater vaccination of the population, further narrowing the condition to PC alone. This should also be introduced first in accordance with proportionality, i.e. in the federal government sector or state administration, where the federal government has the most authority as an employer, but if this also proves to be too weak a measure, it can extend such an obligation further,” he explained, adding that Biden’s Decree also provides gradual sanctions up to and including final, i.e. termination of employment for employees who do not want to be vaccinated.
“In addition to the mandatory PC requirement for government employees, President Biden then ordered the PCT requirement for all US companies with more than 100 employees and the obligation to vaccinate workers in the healthcare sector.” In the event that these partial measures to increase the vaccination rate would not suffice, he announced the possibility of extending them to the rest of the government and American society. Jaklič recalled Biden’s words when he announced a more determined fight against the epidemic at a press conference. He told opponents of the restrictive measures: “What else are we supposed to wait for? What more do you need to see? [In the United States, more than 700,000 people have died from the virus so far, and fields of white flags corresponding to the number of deaths have been planted in front of the capital, Washington, and the epidemic is not yet subsiding.] We have made vaccines freely available to everyone, safe and appropriate.” He added that they were patient, but patience also has limits, as refusing vaccination has consequences for all of us, he stressed, adding that it is incredibly hindering to have tools to fight the virus, but a minority of Americans backed by a minority of elected representatives, prevents from turning sides.
According to Jaklič, the constitutional doctrine of withholding a regulation is well-established and completely clear in both domestic and international constitutional court practice. “On the issue of (non-)detention, the Constitutional Court weighs only the harmful consequences that would be caused by the execution of a hypothetically unconstitutional regulation (danger of possible loss of service in the state administration, interference with physical integrity due to prescribed vaccination) on the one hand with the harmful consequences that would arise if the Constitutional Court withheld a hypothetically constitutional regulation on the other hand (loss of lives and health of people that would continue in the event of an epidemic due to the suspension of the measure). In this weighing, the Constitutional Court may not explicitly take into account aspects of the (later) final assessment of whether the regulation is constitutional or not,” he asserted, adding that both sets of harmful consequences are therefore weighed only under hypothetical assumptions of constitutionality and unconstitutionality.
From this established doctrinal extension, which is completely clear and indisputable, so that a judge who decides according to the law cannot change or adjust it from case to case, according to Jaklič, it clearly follows that most cannot doctrinally consistently ground their decision in favour of detention.
Sufficient collective immunity cannot be achieved voluntarily
Jaklič further points out that the loss of life and health of a larger number of people due to the poorer level of vaccination in the middle of the epidemic is undoubtedly more serious than the harmful consequences on the other side of the scale. In this regard, the health profession of the entire developed world weighs the same, he emphasises, adding that in circumstances where actual or even potential epidemics that sow death, sufficient collective immunity cannot be achieved voluntarily in a society, compulsory vaccination is permissible in the developed world. According to Jaklič, this case is a milder version of compulsory vaccination, as a civil servant can avoid vaccination for a certain price – the risk of losing his job in the state administration.
From the central portal dedicated to vaccination issues, it is possible to read why the values protected by compulsory vaccination have such a predominant weight, explains the Constitutional Court, stating the following: “The obligation to vaccinate stems from concern for the life and health of all members of society. Everyone has the right to protection against infectious diseases and at the same time the duty to protect the health of themselves and others from these diseases. Vaccination protects ourselves and, indirectly, those who are not allowed to be vaccinated for various reasons. We call this collective immunity. Collective immunity also protects the most vulnerable members of society, such as infants who are not yet old enough to be vaccinated and patients with immune system disorders. Collective immunity also protects those who should not be vaccinated due to an allergy to any of the components of the vaccine, and those who have been vaccinated but whose immune system has not developed antibodies.” As Jaklič explains, in Slovenia we have mandatory vaccination against nine infectious diseases outside the epidemic period (haemophilus influenza b, diphtheria, tetanus, whooping cough, polio, measles, mumps, rubella, and hepatitis B). However, in the event of an epidemic, the Minister may prescribe compulsory vaccination for other types of infectious diseases.
Although both domestic and international health professions are aware that such mandatory vaccination against almost all of the listed infectious diseases in extremely rare cases brings with it side effects that can unfortunately be life-threatening for a particular vaccinated individual, we know the institute of mandatory vaccination from addressing the protection of life and health of a large number of people. “So even when there is a danger to life on the other side of the scales (and not just the risk of losing a job specifically in the state administration), such a harmful consequence without prior medical confirmation does not outweigh the significantly more serious harmful consequences that would arise if vaccination were not mandatory – the loss of life and health of a significantly larger number of people as a result of the outbreak or indomitability of the epidemic.”
To date, the institute of compulsory vaccination has been confirmed by numerous constitutional courts around the world. Jaklič further recalled the year 2004, when the Constitutional Court weighed on compulsory vaccination. It was then emphasised that the benefits of vaccination for the health of the individual and the wider community outweigh the potential harm that may occur to the individual due to the side effects of the vaccines. “Abolishing compulsory vaccination would pose a major health risk, as a drop in vaccination below the critical limit could lead to a recurrence of infectious diseases and epidemics. The consequences of diseases that can be prevented by vaccination would be inappropriately greater for human health than the potential health problems that occur only exceptionally when vaccinated.” According to Jaklič, the institute of compulsory vaccination at the constitutional court level has been confirmed to date by many other constitutional courts around the world. Among other things, the European Court of Human Rights in Strasbourg. “Apart from the counter-argument about the undesirable rare side effects of vaccines, the values of life and health of a large number of people in constitutional practice have also never been outweighed by the even weaker counter-argument of naked intervention (regardless of dangerous effects) into an individual’s body from vaccination (privacy),” he adds.
“However, if the weight of this value (the life and health of a large number of people, which is the case in an epidemic) is so great that it outweighs even the danger to an individual’s health and life that appears here and there as an undesirable fatal side effect of vaccines, could it suddenly be more difficult than the significantly lower risk of possible loss of a job in the state administration, which in our case appears on the other side of the scale? Is the life and health of a larger number of people really not a greater good than the danger of losing their job in the state administration for those who do not want to be vaccinated in the midst of an epidemic that sows death?” he wrote, adding that there was in fact no danger of losing their job, since according to the established doctrine of weighing in temporary detention, the Constitutional Court, as explained above, must always take into account the severity of the damage that would occur if the regulation were later recognised as unconstitutional. According to Jaklič, this means that individuals would not lose their jobs at all in the end.
Not every unconstitutional regulation could constitute a legally valid basis for termination. A person who would temporarily lose their job would, after the final substantive assessment of the court, get the job back, including all salaries and contributions for the period when s/he may have been temporarily left without it due to the unconstitutionality of the regulation. “This alleged damage on the opposite side of the scales is therefore insignificant and immeasurably smaller compared to the damage that would have occurred if the measure had been withheld (loss of life and health of a large number of people in the midst of a serious epidemic sowing death). Immeasurable because it is even unethical to measure such temporary damage with the damage we cause to the lives and health of a large number of fellow citizens, among whom, as explained, many are the most epidemiologically endangered and vulnerable members of society,” said Jaklič.
Most courts have turned established values upside down
Jaklič, referring to the practice in the USA, emphasises that the majority of the Slovenian Constitutional Court teaches the world about a new approach, which the medical and constitutional profession of the developed world has not known so far and which turns the weight of established values upside down. “The only problem is that the majority does not explain this turn and it cannot be explained,” Jaklič criticised.
“Since it is not possible to suspend the measure according to the established doctrine of temporary detention, but the measure was nevertheless suspended, most decided to simply ignore all the above counter-arguments,” he said, adding that it had to go so far as to even keep silent about what really weighs on the heavier side of the scales (the value of life and health of a large number of people in the midst of a serious epidemic sowing death). According to Jaklič, it showed that on this side of the scales are some other shallower values (the functioning of the state administration). “These are, of course, also there, but only in addition to the central and crucial value of the lives and health of a large number of endangered people in the midst of an epidemic.”
There is no shortage of criticism of the court by many experts in the field of constitutional justice. According to Jaklič, the argumentatively incorrect approach has consequences, which are reflected, among other things, in the professional criticism of the Constitutional Court expressed so far, which has been expressed by many top experts in the field of constitutional justice. One of these (the Supreme Judge and the former Constitutional Judge) described the concrete decision as argumentatively so obviously erroneous that it is “offensive to common sense”. The second (former constitutional judge and judge of the European Court of Human Rights) described it as “substantively completely empty”, with the essence of the missing weighing being, in his opinion, replaced by an unrelated string of irrelevant paragraphs or “legally vicious”. However, the first President of the Constitutional Court recently criticised a similar way of deciding by the Constitutional Court (today’s case belongs to a series of several argumentatively similar cases) with the assessment that it is a “sequence of relatively serious errors, shortcomings, erroneous decisions… especially in connection with the understanding of the role of the Constitutional Court of the Republic of Slovenia in the health crisis, when assessing cases that are so eminently executive… Here the Constitutional Court was activist all year on the wrong grounds”, removed from the established constitutional review. He even assessed that the Constitutional Court had “abused” the law.”
“Based on the above, I consider in a separate opinion that the majority in this case did not follow the established doctrine, which is used in the constitutional review in cases of temporary detention,” he said, adding that the majority adopted a decision within the established doctrine that cannot be consistently explained in any way, and at the same time it has neither sought to explain the deviations nor to respond to the true core of the counter-arguments. “But a trial based on established doctrine is the only, albeit incomplete, guarantee that a judge will prevent the intrusion (consciously or unconsciously) of irregular dimensions into his weighing and decision-making.” He reminded that when he was elected to the National Assembly, he swore to judge according to the Constitution and act according to his conscience, so – here too – he is obliged to give his sincere assessment: that in this case the reasoning of the majority is not in accordance with established constitutional doctrine but with impulses outside the law that measure the effects of a decision in the political arena.