Privileges for those Fully-Vaccinated in Malaysia – Is this a form of Discrimination?

In recent months, the government’s effort in ramping up the vaccination rate has been achieved with commendable success. The Malaysian government has then announced for the relaxation of SOPs after taking into account the positive development that more than 50 per cent of adult population in the country have been fully vaccinated. It is hoped that the unveiling of the relaxation of restrictions for fully vaccinated individuals can help to revitalize the business sector.

The government’s relaxation of SOPs essentially provides differentiated treatment or privileges for the fully-vaccinated people to go to the malls, enjoy restaurant dine-ins and attend prayers at houses of worship. Some retail operators have allowed only fully vaccinated people to enter their premises to kick-start the retail industry. Such policies may be effective in persuading at least some unvaccinated people to get the jabs, but they also attracted criticism and controversies, including potential law suits against the government for discrimination.

Promoting Social Responsibility 

While vaccination is strongly encouraged in Malaysia, it remains voluntary. Some are ineligible for vaccination due to medical reason while some may see vaccination as a form of oppression. The carrot and stick approach may not be able to convince everyone to get vaccinated.

Faced with the pandemic which has caused economic sectors to remain stagnant for almost two years, the government’s hands are tied and the only option left is to treat the vaccinated and unvaccinated differently to contain the spread of Covid-19. Many countries, including Malaysia, have introduced forms of Covid-19 vaccination certificates or vaccine passports which allow the vaccinated group more freedom and work opportunities than unvaccinated people. In the future, vaccination and jobs may even go hand in hand, especially for workplaces which are frequently inflicted with Covid-19 infections due to workers not taking the jabs. Employers, however, will need to be careful not to discriminate against unvaccinated workers or they risk industrial relation claims.

The differentiation in policies for the vaccinated and unvaccinated is necessary from the public health standpoint as the nation marches towards a sense of normality. The intention is not to discriminate or restrict personal freedom but to promote social responsibility to protect the unvaccinated people, including children.

From a public health perspective, policies which only provide freedom of movement for the vaccinated would be beneficial because it is undeniable that government has the obligation to protect lives. Any interference with personal freedom or rights by the government must be in accordance with the law. In such dire Covid-19 circumstances, the preferential treatment provided under such policies can be justified and should be considered lawful.

The freedom to travel, work, socialize and engage in social activities will only be increasingly determined by one’s Covid-19 vaccination status.

Differentiated for the Greater Good? 

In Malaysia, as the economic sectors are slowly opening up again, life for the vaccinated will slowly return to some level of normalcy. However, it remains unclear how life would play out for the unvaccinated in a long run. The divide between the vaccinated and unvaccinated is likely to become even deeper without a comprehensive policy in place.

It may be interesting to probe into the situation in Singapore. According to Singapore’s Covid-19 Phase Advisory published on 19 August 2021, mask-off services such as massage parlours, spas and saunas are only allowed for fully vaccinated people. Unvaccinated people are not allowed to dine in at food and beverage establishments unless they have a negative pre-event Covid-19 result from an approved test provider.

Desperate times call for desperate measures. The government needs to curtail some personal freedom and rights in order to save lives and the economy. Some may have succumbed to the differentiated policies and gave up on the primacy of personal choice so they could resume activities like dining out and social gathering. Though many individuals are still unhappy about the trend toward differentiating between the vaccinated and unvaccinated, it will not change the fact that aspects of daily life will only be increasingly difficult for people who are not vaccinated against Covid-19. Having said that, for those who are not vaccinated for medical reasons, the government should try to facilitate their inclusion because they may not be given access to social activities so long as the virus remains prevalent.

By Leonard Yeoh and Pua Jun Wen, Tay & Partners, Malaysia, a Transatlantic Law International Affiliated Firm.

For further information or for any assistance please contact malaysia@transatlanticlaw.com

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