• In the event of a vaccine injury, the ‘Vaccine Consumer’ will have little or no ability to claim damages from the ‘Vaccine Producer
• In Sri Lanka there’s a shortcoming when implementing informed consent
• Many people are taking the vaccine because they are coerced

The Government of Sri Lanka (GoSL) recently announced that carrying the vaccination card will be made mandatory for people above 30 when visiting public places from September 15 on wards. This decision has taken many people by surprise as citizens thought that getting vaccinated is firstly a choice. On the other hand people may not be able to get a COVID vaccine due to medical reasons. Besides, legal and medical experts claim that vaccine manufacturers or respective governments need to give a guarantee that none of the vaccines will pose long-term complications on people, no person will be reinfected with COVID or die after getting a vaccine, the state will take the responsibility if a person dies after getting both doses of a vaccine, a person need not get additional shots for mutating COVID variants and give a clearance on all such doubts. 
As such, the Daily Mirror sheds light on the medico-legal, legal and human rights concerns with regards to the recent decision.

Medico-legal concerns 

In her presentation at the Annual Scientific Sessions of the Sri Lanka Medico-Legal Society in March 2021, Food and Nutrition Specialist and independent researcher Dr. Damayanthi Perera shed light on the medico-legal and consumer rights aspects of vaccinating people against COVID. Her presentation focused on how people have developed natural immunity and various concerns pertaining to vaccines which have been made available for emergency use only. “All vaccines are not created equally, but there’s a great push for vaccines globally. The international narrative on vaccines is highly biased. People have a right to know all details but no policy maker or doctor in Sri Lanka has explained the difference between each of these COVID vaccines. All vaccines have been developed in a hurry,” said Dr. Perera. 

"The international narrative on vaccines is highly biased. People have a right to know all details but no policy maker or doctor in Sri Lanka has explained the difference between each of these COVID vaccines. All vaccines have been developed in a hurry - Food and Nutrition Specialist and independent researcher Dr. Damayanthi Perera"

Dr. Perera said that the supreme law of the country is the Constitution and the Government is bound to safeguard the Constitutional rights of citizens. She said leaving that to the learned legal luminaries of the country, there are three pillars that need to be considered when it comes to the matter regarding COVID vaccines. “These include the Precautionary Principle, Consumer Rights and Right to Information. If we take the precautionary principle, modern Western science has a short time span in the human evolution trajectory. Humans have evolved for millennia and have coexisted with bacteria, fungi and various pathogens. Nobody is talking about inherent immunity of people. Long before western medicine was established people made decisions using their ‘Time Tested Knowledge’ and common sense. Further, today, science is biased and corrupt,” she said. 

Shrewd play of words

Speaking on the Government’s decision to make the ‘vaccination card’ mandatory for citizens above 30 years of age, she said that it is in fact an indirect way of saying that the ‘vaccines will be made mandatory’. With that, the Government is trying to instill a fear psychosis in the minds of people. People have always avoided risk and this applies to vaccines as well. The Precautionary Principle is an international accepted principle. On the other hand I haven’t seen any local or international authority saying that these are experimental vaccines and that they have been approved only for emergency use by Food and Drug Administration, USA and other international bodies.” said Dr. Perera. 

Indemnification and informed consent 

Another issue is with regard to Indemnification of the vaccines. “Indemnification undermines the Product Liability Law which ensures consumer rights,” Dr. Perera added. “If a product is of inferior quality, injurious to health or does not provide value for money, the Product Liability Law allows people to make certain claims from the manufacturer. But indemnification (negates / undermines this law) and people should be made aware of these legal conditions as well. In the event of a vaccine injury, the ‘Vaccine Consumer’ will have little or no ability to claim damages from the ‘Vaccine Producer’. The liability is passed on the respective government or in other words; an ‘Innocent Party’ the Tax Payer. Giving correct information to consumers is a must. This is where the third pillar, Right to Information comes into place. Under the Right to Information Bill in Sri Lanka people have a right to receive accurate information. On the other hand, medical information about a person is confidential. Nobody can ask for another person’s medical history or information. This way, the vaccine card is discriminatory and an invasion in a citizen’s Right to Privacy.” she affirmed. 

When asked about getting the consent from people prior to receiving the vaccine she said that medical procedures cannot be carried out without informed consent. “This is where you sit down with individuals and explain to them about the procedure, drawbacks etc. But in Sri Lanka there’s a shortcoming when implementing informed consent. There’s a political showcasing of the vaccine and no attempt to give a balanced view of the vaccine. Many people are taking the vaccine because they are coerced. According to the Nuremberg Code no medical treatment can be forced without the consent of people. In fact COVID-19 vaccines have been developed in a very short time (under one year) and fall under experimental vaccines.  Normally a vaccine takes about 7-10 years to develop,” she explained. 

Dangers of mRNA vaccines 

Some COVID vaccines are mRNA vaccines and in her presentation Dr. Perera also shed light on some known and potential dangers of mRNA vaccines. “The mRNA technique has never been used in vaccines before and they may create many health dangers and people fear that these vaccines may also tamper with the genetic makeup of people. This has led to great fears and doubts about what the end results may be. mRNA vaccines contain an allergenic ingredient called Polyethylene Glycol – PEG which is not an approved compound to be used in vaccines / medicines in the UK. mRNA is packaged in nanolipids which may cause serious physiological and environmental harm. If disposed improperly the blood-brain barrier for instances prevents entry of pathogens and certain compounds to the brain. For example one key nutrient that can enter the brain is glucose, but certain other nutrients / compounds are prevented from entering the brain. Due to the very small size of the nanolipids, there is a potential danger of these nano particles crossing the blood-brain barrier and causing harm. In one of his statements, the Chief Justice of South Africa Mogoeng Mogoeng said, “If there’s any vaccine that would corrupt our DNA, I pray to God that this vaccine never see light of day,”  she added. 

She further said that vaccines may pose potential risks to people who have reached their reproductive age, pregnant mothers and children. “One of the research studies showed that nanolipids could get accumulated in ovaries and bone marrow. I have seen doctors saying that there’s no risk of vaccinating pregnant women and people of reproductive age, but these statements aren’t backed by data. A group of researchers from Europe pro-actively predicted that AstraZeneca and Pfizer vaccines may cause blood clots and this has happened. As researchers / professionals, our duty is not to wait till injuries occur, but to warn pro-actively.  Elderly people, pregnant, lactating mothers and children have not been included in some of the original research studies. Even though some companies have belatedly started trials with pregnant women and children, these are short-term studies. When it comes to animal trials there are ‘generation trials’ being done and these are done over long periods of time to rule out dangers to offspring.” she said. 

When I was reading up on Ayurveda Medicine I realised that there are certain treatments they have been in use in Ayurveda to deliver medicines to the brain and that the Ayurveda practitioners had known how to deliver certain active ingredients /medicines to the brain without causing harm. Therefore we must not undermine the power of Ayurveda and other alternative therapies. In fact we must appreciate the fact that that we can choose the good treatments from both Ayurveda and Allopathy,” she explained. 
On the other hand nobody is talking about immunity of people. “Natural immunity can be built by natural diet and lifestyle.” Dr. Perera underscored. 

No proper systems in place 

Dr. Perera also claimed that Sri Lanka doesn’t have an official registration mechanism for vaccine injuries. “In the US there’s the Vaccine Adverse Event Reporting System (VAERS) and in UK you get the Yellow Card system. These are voluntary reporting systems and researchers claim that the injuries are seriously under reported. Nevertheless, it is very crucial to have a reporting system. In Sri Lanka we don’t have such a database, but our doctors keep saying that those who got vaccinated have had fewer injuries. I personally know one individual who suffered from Bels Palsy (Facial Paralysis) after vaccination. I wonder where her injury is recorded. Although the officials are painting a very Rosy Picture, there could be many unreported and unrecorded injuries in Sri Lanka. Despite literally having a daily show on each TV Station on COVID, to my knowledge, no doctor, policy maker or official has ever discussed how the injured people would be compensated. Offering free treatment alone isn’t adequate. Who will compensate for loss of income, long-term care, pain of mind etc.? Therefore, before making vaccines or vaccination cards mandatory for the people, important safeguards and systems need to be in place,” she said. 

Legal drawbacks 

Legal professionals claim that vaccination cannot be forced on anyone as it violates every civil liberty of a person. The concept of Informed Consent to medical treatment is now a patient’s right and that any infringement of it may result in violating Article 12(1) of the Constitution of Sri Lanka that ensures equal protection. Not being allowed to visit public places without a vaccination card is a curtailment of a person’s Freedom of Movement guaranteed under Article 14 of the Constitution. The professionals claim that there would have been some guarantee to it if the vaccines guaranteed that a person won’t be re-infected or that they will not transmit the virus to another person after getting vaccinated. The solution lies in making it mandatory for people to follow COVID protocols such as wearing masks, physical distancing etc. This is further justified in the fact that even people get vaccinated they still have to follow these protocols. Therefore the option of vaccinating oneself is the individual’s choice. 

A precedent for violent civil strife?

In this backdrop the Daily Mirror had an interview with President’s Counsel Tirantha Walaliyadde who explained the legal issues pertaining to forced vaccination. He said that Sri Lankans are not forgiving and if and when matters go beyond control with unexpected irrevocable dangerous side effects setting in, and it all points to indiscriminate, irresponsible, and rash administration of the vaccine on a reluctant innocent and ignorant majority there will be a cry of vengeance that would echo across this country and violent civil strife will erupt throughout this land.

“The consent form is just an insurance policy for the people who insist on administering the vaccine.  This is not a valid consent in any event because the people have not been properly advised of the dangers and they cannot be advised because the administrators themselves are uncertain - President’s Counsel Tirantha Walaliyadde”

Excerpts : 

  Q    The Govt. has made it mandatory to carry the vaccination card when visiting public places after September 15. What is the legality of this decision?

Originally, the Army Commander announced that the card is mandatory to be admitted to a public place, but according to the media this was subsequently amended by the Health Department to read that the law enforcement authorities will be checking the  people who are found in public places to see whether they have the card.The reason behind this move, in my opinion, is to check how many have refused to take the vaccine as precursor  to attempting to pass legislation making the vaccination mandatory.

  Q    Isn’t vaccination a choice? If so, how does this decision violate people’s rights?

There is no law under which people can be compelled to get themselves vaccinated; if there is an attempt to pass such legislation then there is bound to be a public reaction against it in the Constitutional Court as well as outside.

  Q    Can people take legal action if they are forced to be vaccinated?  If yes, what is the process?

• A test case can be launched and, in fact, will be, during the course of this week.  I believe that such an action before a Full Bench of the Supreme Court case is a matter of extreme urgency because of the administration of an untested vaccine which is known to have disastrous side effects.
• There also seems to be a viable option in indigenous medicine as vehemently claimed by State Minister Sisira Jayakody and many others who specialize in the field.
• A writ application may also be made to the Court of Appeal.

  Q    People are given a consent form to sign prior to getting the vaccine. Are people aware of what they are signing? Does this piece of paper service justice to the concept of informed consent?

The fact that a consent form is insisted upon is because the short-term and long-term side effects of the vaccine are unknown and the testing is being carried out on the people. The consent form is just an insurance policy for the people who insist on administering the vaccine.  This is not a valid consent in any event because the people have not been properly advised of the dangers and they cannot be advised because the administrators themselves are uncertain.  This is the form of consent that is obtained from volunteers at the initial stages when testing a new project which may be harmful to the participant.
This document will not hold any water in a Court of Law, but will go far to establish a charge of rash or negligent acts against the perpetrators in terms of the Penal Code and in extreme cases the said acts may even amount to murder.
Nor will it be a defence for anyone to say “I was merely carrying out orders’’, in terms of the Nuremberg War Crimes Tribunal decisions.

"In this instance, the government has not stated the legal means through which it plans to impose this rule. Secondly, unless everyone has equal and equitable access to vaccines, it would be discriminatory to prevent people from accessing a public places - Human Rights Lawyer and Advocate Ambika Satkunanathan”

A hasty decision 

“The Government announcement to make vaccination cards mandatory to access public places raises a few questions,” opined Human Rights Lawyer and Advocate Ambika Satkunanathan. “Although fundamental rights can be restricted in the interest of public health it can only be done through law enacted by Parliament or emergency regulations issued under the Public Security Ordinance.
“In this instance, the government has not stated the legal means through which it plans to impose this rule. Secondly, unless everyone has equal and equitable access to vaccines, it would be discriminatory to prevent people from accessing a public places. I know of many persons outside Colombo who wish to be vaccinated, but to date have not had access to vaccines. For instance, a colleague’s father in Puttalam who is over 60 years and has heart disease has not been able to get vaccinated. In this context, the Government’s announcement appears hasty and not well considered.”

Restriction not applicable to everyone 

When contacted Deputy Director of Health Services Dr. Hemantha Herath said that there aren’t any alternatives to the vaccines, even in terms of indigenous medicine. “If someone has decided not to take the vaccine we need to protect them and also protect the public from them. This is for their own safety. They can get the disease and they are also at risk of spreading the disease.” said Dr. Herath.

"If someone has decided not to take the vaccine we need to protect them and also protect the public from them. This is for their own safety. They can get the disease and they are also at risk of spreading the disease - Deputy Director of Health Services Dr. Hemantha Herath"

He further said that until all people are vaccinated this restriction will not be applied. “People under 30 and children need not worry. It is understood that they haven’t received the vaccine. This notice is especially for high risk groups such as elderly people. On the other hand some people may not be able to take the vaccine due to medical reasons. We have to arrange a system where the vaccine is contraindicated. Those people should also get a card with reasons as to why they haven’t received the vaccine.”

Requests for alternatives

In the meantime, State Minister for Indigenous Medicine, Development of Ayurvedic Hospitals and Community Health Sisira Jayakody said that many registered Ayurveda practitioners have written to the Ministry saying that they are reluctant to get vaccinated. “As such they have requested the ministry to recommend alternatives to the vaccines. So we will look into these requests in the coming weeks.” said Jayakody.

Last week Department of Ayurveda Commissioner Dr. Dhammika Abeygunawardena said that out of the 3000 odd COVID patients admitted to Ayurveda hospitals, around 2000 of them have been discharged. “Apart from that no deaths have been reported,” he said while addressing a media briefing. 
“So far 10 Ayurveda hospitals have been allocated for treating COVID patients and none of the patients has shown severe symptoms so far,” Jayakody added. “We plan to setup five more hospitals dedicated to accommodate around 700 more COVID patients, but this is a time consuming process as separate units need to be setup and the staff has to be trained as well.” he said. 

"As such they have requested the ministry to recommend alternatives to the vaccines. So we will look into these requests in the coming weeks - State Minister for Indigenous Medicine, Development of Ayurvedic Hospitals and Community Health Sisira Jayakody"

He further said that there have been less COVID related deaths reported from the North and East as people in these provinces are more familiar with Siddha and Unani medicines. “Even though we cannot prove it scientifically, indigenous medicine may have some properties to weaken the severity of the virus. In order to keep track of patients receiving home care, we have deployed around 1000 community physicians covering each Pradeshiya Sabha division. These physicians respond to patient calls and are in fact assisting PHIs and other frontline healthcare workers,” he added. 

Jayakody further said that there’s a disconnect between Western and Ayurveda Medicine practices in Sri Lanka. “Countries such as Taiwan, Vietnam and even China faced the COVID virus by merging both traditional and western medicine systems. So this is a time to keep professional egos aside and arrive at a common grounds to find solutions and save the public from succumbing to the virus” said Jayakody.

"The solution lies in making it mandatory for people to follow COVID protocols such as wearing masks, physical distancing etc"

"Sri Lanka doesn’t have an official registration mechanism for vaccine injuries"

"Not being allowed to visit public places without a vaccination card is a curtailment of a person’s Freedom of Movement guaranteed under Article 14 of the Constitution"

Mixed views from the public 

The Daily Mirror also requested from members of the social media fraternity to share their thoughts on the Government’s move to make vaccination cards mandatory and here’s what a few of them had to say : 

“Nobody can be forced”

“Does anyone who makes decision know Human rights? And that the decision to get vaccinated is a right of a person? No one can force any individual on this as far as I know”

- Nicholas Jinoth

“Right to refuse?”

“People need to have the right to refuse forced vaccination. In USA, all major airlines said they will not mandate their staff to get vaccinated. Its one’s choice. Shouldn’t force a bodily change if one doesn’t consent”

- Harshana Nadeeshan

“Digitize vaccination cards”

“Great move, but they should come up with something which is digitally trackable.  They can have a digital version of the same vaccination card with all the relevant details or they can include a mechanism to the same QR code execution (when a user visits the site, simply enter the ID number and you get all details which you can show)” 

- Tharindu Lakshan Tennekoon

“Is there a choice?”

“As there are recognised vaccines by different countries, people who are intending to travel abroad must be given a choice to select a vaccine. People who want to go in public has an ethical responsibility to get vaccinated, since they are risking the lives of others” 

- Sajeed Ahamed

“What about those under 30?”

“COVID Vaccine passport is certainly going to be a need in the near future. So I agree with the concept. This would also ensure people take vaccinating seriously. But the main issue is below 30 years as this is a group that socializes more and does that mean they can’t go to restaurants supermarkets and other public areas? Yet again this is not a wholly thought through decision”

- Aruni Mahipala 

“Vaccine not the only solution” 

No one can force or mandate anyone to take a vaccine or any medicine for that matter if one is rejecting it. With all the data in hand it’s evident that the vaccine is not the only solution; a person has the right to take whatever the medicine (western or traditional). Similar decisions were taken in France and the government had to withdraw it due to the protests by people”

- Ramesh Seneviratne