The government plans to open or prepare a regulation on independent vaccination for certain industrial sectors, although the sources of vaccines used are different from those of the government.
By
Hendry Julian Noor
·5 minutes read
The Covid-19 vaccination program is entering a new “discussion”. The government plans to open or prepare a regulation on independent vaccination for certain industrial sectors, although the sources of vaccines used are different from those of the government.
This is feared to give rise to inequality and injustice in citizens’ access to health and safety (Kompas, 21-22/1/2021). It should first be explained that the “entire” Indonesian population in the title of this article means everybody who actually fulfills medical requirements to be vaccinated against Covid-19. The government practically leans toward making vaccination mandatory. In the views of McGaughey and Rizzi (University of Western Australia’s Law School) and Maguire (University of Newcastle), the government as a public institution indeed has the authority to implement a policy with the obligation to execute vaccination although it may have a different aim.
Government responsibility
In principle, such measures are aimed at protecting the most basic human right, which is the right to life, of which the right to health is part. The law on international human rights also allows several restrictions of the rights, which are subject to stringent assessment of necessity and proportionality.
Vaccines are strongly related to the right to health. As part of the right to life, as described above, it is a basic human right that cannot be diminished under any conditions (Article 28I Paragraph (1) of the 1945 Constitution).
It is further stipulated that everybody shall have the right to be free from discriminative treatment on whatever grounds and the right to receive protection from discriminative treatment (Article 28I Paragraph (2)), in which the protection, enhancement, upholding and fulfillment of human rights shall be the responsibility of the state, especially the government, as determined in Article 28I Paragraph (4) of the 1945 Constitution.
In the context of the right to life as required to be regulated as part of the legislation, Indonesia maintains Law No.36/2009 on Health Affairs. Vaccines can be subsumed under health efforts, defined as any activity and/or series of activities undertaken in an integrated and sustainable manner for the maintenance and elevation of the level of public health in the form of disease prevention, health promotion, therapy and health rehabilitation by the government and/or society (Article 1 Point 1).
Counterproductive
Basically, independent vaccination will not pose any problems as long as its implementation does not disrupt the priority order of vaccine recipients as previously arranged by the government through many studies particularly medical reviews, or even if it can just help speed up the government’s vaccination program.
However, if what happens is the reverse, it can lead to the legitimation or even legalization of the stronger economic group becoming the first to receive vaccination. It is not impossible that this will later be counterproductive in terms of the important provision in the Health Law that everybody is entitled to health and has the equal right to access resources in the health sector.
The Health Law also assigns the government the responsibility, first, to plan, arrange, organize, promote and supervise health efforts that are equitably distributed and within the reach of society.
The second is to ensure the availability of physical and social health environments, setups, facilities and resources in a fair and equitable way for the entire public to achieve the optimal level of health. The third is to provide all means of health maintenance of reliable quality, safety, efficiency and affordability.
Based on a teleological (purpose-oriented) interpretation, the responsibility is within the framework of public service, which in fact is the government’s duty, especially to plan, arrange, organize, promote and supervise health efforts that are equitably distributed and within public reach.
It can be stated that vaccines constitute one of the manifestations of public service in the health sector by the state for its citizens.
By stipulation, public service is any activity or series of activities for the fulfillment of the needs of every citizen and the population, including goods, services and/or administrative service. It can be stated that vaccines constitute one of the manifestations of public service in the health sector by the state for its citizens.
The principle matters in public service at least concern two aspects, which are to make sure the development quality of society and ascertain that nobody is left behind in securing their right regardless of their backgrounds. The government is the lead actor in the implementation of public service and should position the public as the stakeholder that has to be properly served (Osborne & Gaebler, 2000).
Focus on priority groups
In connection with the principle that geen bevoegheid zonder verantwoordelijkheid or there is no authority without responsibility (Ridwan, 2016: 105), any authority carries legal responsibility.
By using the logic of argumentum a contrario (argument from the contrary), responsibility is impossible without authority. In this way, it can be affirmed that the government has the obligation to carry out the vaccination program for around 181.5 million Indonesian people as one of the attempts to overcome the Covid-19 pandemic.
As indicated by Health Minister Budi Gunadi Sadikin, the nature of vaccination is socialistic (not individualistic) and for the building of herd immunity, rather than the immunity of certain individuals or groups.
Hendry Julian Noor,Lecturer of Public Administration Law, School of Law, Gadjah Mada University.