High Court rejects bid to challenge vaccination-differentiated measures

People showing their vaccine status before entering Tampines Mall on Feb 25, 2022. PHOTO: ST FILE

SINGAPORE - The High Court has dismissed a bid by six unvaccinated people, including activist and blogger Han Hui Hui, to challenge Singapore's vaccination-differentiated measures.

On Thursday (June 16), Justice Dedar Singh Gill said in his judgment that statistics cited in the group's application were incorrect and based on wrong assumptions.

Contrary to what they claimed, the rules imposed on unvaccinated people were neither unlawful nor irrational, he added.

On Dec 27 last year, the group had applied for a judicial order to quash the Government's advisory that employers could, as a last resort, terminate staff who remained unvaccinated by choice.

The advisory, issued on Oct 23 and slated to take effect Jan 1 this year, stated that this was only to be done if alternative work arrangements could not be made.

The group had also applied to quash the Government's decision to make people who are unvaccinated by choice bear the full cost of their medical treatment if they contract Covid-19.

In addition, they sought a declaration that these directives were "unlawful and/or irrational".

Lastly, the group also sought to show they had legitimate expectations of keeping their jobs and having their coronavirus-related hospital bills covered regardless of vaccination status, since the Government had said vaccination is not mandatory.

Lawyer and opposition politician Lim Tean, who represented them, said the application made no extravagant or exaggerated claims, and was based on "cold hard facts" which proved they had been discriminated against.

It cited statistics on death and critical illness rates among vaccinated and unvaccinated people, which the group had calculated based on official data made public by the Ministry of Health (MOH).

These were used to support its assertion that unvaccinated people do not disproportionately contribute to the strain on the healthcare system.

The group claimed that for every unvaccinated person who died of Covid-19, Singapore would see another 4.7 deaths among the fully vaccinated.

The country would also see 28 fully vaccinated people become critically ill for every eight unvaccinated people who did so, it said.

But Justice Gill pointed out that their approach to obtaining these numbers was "statistically inexact", as they wrongly assumed that death and critical illness rates for the entire unvaccinated population were equivalent to these rates among those who remained unvaccinated by choice.

This would not have been the case, as children - most of whom were not eligible for the vaccine until late last year - are generally less likely to fall severely ill or die of Covid-19.

The High Court has dismissed a bid by six unvaccinated people, including activist and blogger Han Hui Hui, to challenge Singapore's vaccination-differentiated measures. PHOTO: HAN HUI HUI/INSTAGRAM

Their numbers were also incorrect, the judge added. He cited MOH data from the time periods referred to in the application, which was provided by Dr Derrick Heng, deputy director of medical services in MOH's public health group.

The seven-day moving average on Dec 4 showed 3.4 deaths among the fully vaccinated, and 5.3 deaths among those not fully vaccinated.

Similarly, Dec 6 saw 24.4 cases of critical illness among those who were fully vaccinated, compared with 31.1 among those not fully vaccinated

Absolute numbers on both dates also showed that those not fully vaccinated were harder hit.

On Dec 4, there were seven deaths among those not fully vaccinated, while no deaths were reported among those fully vaccinated.

On Dec 6, 18 fully vaccinated people were critically ill, compared with 29 people in the non-fully vaccinated group.

"This is despite the fact that non-fully vaccinated persons comprised a minority of Singapore's population," Justice Gill said, noting that 87 per cent of the total population had been fully vaccinated at that time.

He added that Dr Heng's statistics were "well explained and with cogent basis", while those provided by the group of six were grounded in "shaky assumptions".

The judge also addressed the assertion that the vaccination-differentiated measures constituted unlawful discrimination and were illegal and irrational.

On the issue of constitutional discrimination, Justice Gill noted that the group of six were not "equally situated" with the fully vaccinated population. He cited studies showing that unvaccinated people are more likely to get infected and pass the virus on, as well as die or become severely ill and strain the healthcare system.

He added that having unvaccinated people pay for their own medical bills was not illegal, given that MOH and the multi-ministry task force had exercised their power in good faith without impropriety, and had taken into account all relevant considerations.

This move was also not such an illogical decision that no reasonable decision-maker could have arrived at it, he said.

Justice Gill noted that the court is able to review the decision-making process and consider if decisions are illogical or not.

But it is not for the judiciary to intervene in "substantive matters of policy which fall squarely within the ambit of the executive's role and power", he said.

"This prerogative is conferred on the executive with the democratic mandate of the population."

If the group disagrees with the substance of this policy - that is, if they believe that people who remain unvaccinated by choice should have their medical bills covered if they get Covid-19 - this is not a matter for the court, he added.

Justice Gill said he also considered similar challenges to vaccination regimes overseas, given that this is the first such case in Singapore. These included cases in Britain, Australia and Canada.

“The foreign courts have broadly made the same observations on deferring vaccination-related policy decisions to the executive,” he said.

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