Mandatory vaccination in Portugal: is it legal? – Opinion
In Portugal, the question, from logo, raises the collision of two fundamental interests, that is, of constitutional enshrinement:
On the one hand, the right to health protection and the duty of a defender, with the State being responsible for ensuring public health. On the other hand, the right to physical integrity, the free development of personality and freedom of choice (or right to self-determination) regarding health care, and for this, the citizen must be previously and properly informed about the purpose and nature intervention, as well as its consequences and risks.
However, it is in the resolution of that conflict of tendingly opposing interests that our Legal System is called to intervene, and it is up to you to harmonize it, according to the principles of proportionality, necessity and adequacy. This means that, as restrictions on Fundamental Rights, they must be limited to what is strictly necessary to safeguard other constitutionally protected interests: and it is in this right balance that the solution must be found ..!
The Constitution of the Portuguese Republic thus allows for the imposition of mandatory vaccination for the defense of public health, provided that these principles are found in article 18, paragraph 2 of the CRP: proportionality, necessity and adequacy. The question would then become the following: Is, at the present time, proportional, necessary and appropriate to impose mandatory vaccination in Portugal to deal with the pandemic situation?
Well, it is in light of the current and concrete threat to public health, as well as the vaccine itself, that the issue will have to be analyzed: The principle of proportionality imposes on us that mandatory vaccination can only be implemented after they are exhausted. all other resources to fight the Pandemic – such as information and awareness campaigns on vaccination, mandatory use of masks, environments, regular tests, imposition of distance between people, mandatory telework whenever possible, reducing the number of people in events, increased surveillance of the virus genome, strengthening the quality of health services etc., in other words, it should always be as less intrusive and invasive as possible…!
And, taking into account the high rate of voluntary vaccination registered in the country and the fact that there are no high mortality rates in Portugal, we can see that the resources we have been using fully fulfill their purpose, ensuring practical agreement between the needs of the realization of the public interest of the State and respect for the legal relations of citizens: the essential balance that must be preserved in a Democratic Rule of Law.
Naturally, in an exceptional situation, that is, in the event of a drastic increase in mortality rates in Portugal, a greater restriction on the fundamental rights of citizens may be considered, imposing mandatory vaccination to safeguard a common good: public health. It will be necessary, however, that there are guarantees, supported by evidence, of its safety (eg with regard to the technology used and its possible risks and secondary effects in the short, medium and long term), as well as its effectiveness in combating the new Coronavirus, which has been undergoing constant mutations…
In this regard, the circulation of false news, originating from the denial and anti-vaccine movements, which rapidly proliferate with the support of the entire structure of the digital age and how which are susceptible to influencing – and influencing – Decision answer: The vaccination campaign will therefore have to provide proper and complete clarification about vaccines, not die, however, of alerting citizens to verify the credibility of information sources, in the path of combating misinformation that should not be overlooked.
It should be noted that any imposition of mandatory vaccination must be approved by the Law of the Assembly of the Republic or by the Government Decree-Law authorized by the Republic, where the mandatory criteria and the consequences of refusal are defined (possibly applying a fine to who did not get vaccinated or merely prohibiting entry into certain places and events)
And, without the approval of such a Legal Diploma, no Entity – whether an Employer or any Educational or Health Establishment – may impose the taking of the vaccine, as well as adopt any discriminatory act in relation to those who choose not to be vaccinated. As for new hires, even though I may seem more reasonable to admit, under the terms of labor legislation, the possibility of rewarding the admission of new jobs to those who have a complete vaccination, especially in sectors of activity in contact with risk groups, the truth is that in the absence of a law that imposes mandatory vaccination, there will be no such discrimination, and, until then, there should be a greater reinforcement of the information and awareness campaign on vaccination, as well as the imposition of tests on employees, justified by the current pandemic circumstantialism of exception.
However, there is an urgent need for a legislative clarification on the matter that reduces the existing conflicts and puts an end to the free replacement of Employers with the State.