As of 17 July 2021, over 4 million people have been fully vaccinated against Covid-19 in Pakistan, with another 17 million having received at least one dose of the vaccine. While the number of fully vaccinated individuals is only 2% of the total population and under 6% of the target of 70 million set by the Government for the end of this year, the figures have witnessed considerable improvement since the vaccination programme started. The initial rollout had been constrained for a number of reasons, including incomplete information and supply shortages (as detailed in an earlier blog). But with those constraints having largely been overcome – and all citizens over the age of 18 (with valid IDs) now having access to walk-in vaccination facilities – the Government’s present challenge is to encourage the maximum number of people to get vaccinated. This has prompted the provinces to consider a range of punitive and incentivising measures. In what follows, we will lay out four controversial measures proposed and/or adopted by the provinces to bolster vaccination rates, and consider whether they may be susceptible to legal challenge on account of their tendency to infringe the fundamental rights protected under the Constitution. The survey tends to suggest that measures that seek to penalize unvaccinated individuals – by depriving them of an existing privilege – are more likely to fall foul of constitutional safeguards than those that seek to reward vaccinated individuals – by granting them a privilege that was unavailable or denied prior to vaccination. The ultimate test for legality appears to hinge upon whether the measures are rationally connected with the distinction drawn between vaccinated and unvaccinated individuals.

1. Blocking sim cards – proposed but not implemented

One of the most heavily publicized measures proposed in the Punjab province was to block sim cards of those individuals who refused to get vaccinated. This had been ‘decided’ during a meeting of the Health Department of the province, though the precise source of the proposal remains unclear, with the Secretary Primary and Secondary Healthcare Department suggesting that it emanated from a cabinet meeting. The effect of adopting the measure would essentially be to deprive unvaccinated individuals of mobile phone service.

While sim cards of unvaccinated individuals have not yet been blocked in Punjab, the announcement of the proposal may have been a bluff designed to redress the poor vaccination rates that prevailed in the province at the time. At any rate, the legality of such a measure would remain suspect on a variety of counts. Firstly, executive authority over regulating telecommunications generally and sim cards specifically does not lie with the provinces given that ‘telephones, wireless, broadcasting and other like forms of communications’ form part of the federal legislative list under the Constitution (Entry No 7 of the Fourth Schedule to the Constitution). Secondly, such sanctions run the risk of violating the right to education (Article 25A of the Constitution), which has substantially transitioned to virtual platforms during the pandemic. Many students, especially in rural areas, rely on their family members’ mobile phones to continue learning online, especially those from low socio-economic backgrounds where access to other sophisticated technological devices is scarce. Generally, Pakistan’s mobile phone subscriber penetration rates are higher than those for ownership of laptops and tablets. Cutting off access to mobile phones additionally entails prospective abuses of the fundamental rights to freedom of speech and expression (Article 19 of the Constitution) as well as information (Article 19A of the Constitution) since closures of physical spaces for civilians has resulted in increasing use of technology by civilians to express opinions and beliefs. And while these rights are qualified in that they are subject to ‘reasonable restrictions’, the measure may nevertheless fail to withstand judicial scrutiny, especially with courts expressly adopting proportionality as a ground of judicial review. Lastly, blocking sim cards of the unvaccinated population may also result in denial of access to health services, including emergency health services. This could potentially be a violation of the right to life (Article 9 of the Constitution), particularly exacerbated by the declared public health emergency on the national and global level.

2. Granting access to various indoor establishments – adopted by the Punjab and Sindh provinces

Contrary to the proposals floated at different times, the statutory body authorized to impose public health measures in Punjab rather steered its orders towards rewarding vaccinated citizens, for example by opening up shrines, gyms, indoor weddings and indoor dining facilities only for those who were vaccinated. Whether these measures are viewed as punitive towards unvaccinated individuals or rewarding towards vaccinated ones, the net effect is the same: access to these establishments is restricted to only those who are fully vaccinated. This is notwithstanding the fact that enforcement of such restrictions at present is in the hands of the establishments themselves, though efforts are underway – at least in Punjab – to ensure compliance through the setting of counters to check vaccination certificates.

The legality of these measures can be assessed from the perspective of the establishment as well as the citizen. From the establishment’s perspective, the restriction may be viewed as a violation of the freedom of trade, business, or profession (Article 18 of the Constitution): the exclusion of a certain segment of the population results in a restriction on the establishment’s freedom to conduct trade/business. However, there is at least one rider attached to Article 18 that may justify the current measures: the regulation of any trade/profession through a ‘licensing system’ is expressly permitted. The judicial interpretation of the phrase ‘licensing system’ has been significantly wide so as to include reasonable restrictions on trade for purposes of ‘protecting and promoting general welfare’ (as summarized by the Supreme Court in this 2019 judgment [46]). In other words, the exclusion of unvaccinated individuals from establishments and the access granted to vaccinated individuals could be viewed as a licensing system amounting to a valid restriction on the right to freedom of trade.

From the individual’s perspective, the restriction of access to these establishments may be viewed as discriminatory and hence a violation of the right to equality (Article 25 of the Constitution). The equality clause has in fact already served as one of the grounds for the Supreme Court striking down an earlier measure where Saturdays and Sundays had been designated as days of ‘complete lockdown’ by the Sindh government without any ‘justifiable rational [sic] or reasonable classification’. However, unlike the perceived arbitrariness of the selective lockdown, the discrimination with respect to access to establishments does seem to be based on a reasonable classification, ie between vaccinated and unvaccinated individuals. Any challenge based on the equality clause would thus have to demonstrate that the distinction between vaccinated and unvaccinated individuals is either unreasonable or unintelligible. In view of the scientific data available, it may be extremely difficult to demonstrate this.

3. Banning air travel for unvaccinated individuals – proposed to be implemented from 1 August 2021

The National Command and Operation Centre (NCOC) has, amongst a host of other measures, recommended a complete ban on air travel for unvaccinated individuals from 1 August 2021. It is expected that this ban would cover both domestic and international flights. Every passenger would have to present a Government-issued certificate to prove that they are fully vaccinated before being allowed to travel by air.

Unvaccinated individuals could argue that such a ban is violative of their right to freedom of movement (Article 15 of the Constitution). Unlike the jurisprudence developed under the equality clause where discrimination can be justified if it is based on a ‘reasonable classification’, a restriction on the right to freedom of movement can only be justified if it is reasonable and in the ‘public interest’, as expressly provided for in Article 15 of the Constitution. Despite this added protection, it appears far more likely for the air travel ban to be deemed reasonable and in the public interest, given the public health emergencies declared throughout the country.

4. Salary suspensions of Government employees – adopted in the Sindh province

On 3 June 2021, the Chief Minister of Sindh made a highly controversial announcement of his directions to the Finance Ministry to block, from July 2021 onwards, the salaries of all Government employees who refused to get vaccinated against Covid-19. Some accounts suggest that this measure led to an increase in vaccinations, though there is no official data to confirm this. The Chief Minister’s directions were also vague in that they did not clarify if and how the salaries of these Government employees would be restored once they did opt for the vaccine.

The suspension of salaries could prima facie amount to a violation of an individual’s right to enter upon and continue a lawful profession or occupation (Article 18 of the Constitution). This right is not absolute (as highlighted earlier in this post), and the only relevant rider that could potentially justify the suspension of salaries is the phrase ‘subject to such qualifications, if any, as may be prescribed by law’. However, the directions issued by the Chief Minister cannot qualify as ‘law’. Moreover, the Supreme Court has consistently interpreted the right to life (Article 9 of the Constitution) expansively, so much so that it has been interpreted as including the right to livelihood and security of terms and conditions of service (eg see this recent judgment [11]). The legality of salary suspensions is therefore suspect on a number of counts.

The survey of measures in this post has been carried out without going into the larger question of whether forced vaccinations are an unlawful deprivation of liberty and violation of dignity. Similarly, there are a number of problems that may arise from forged vaccination certificates and/or issues arising from weak enforcement of measures by establishments. What nevertheless emerges from this assessment is that the Constitution and its interpretation is flexible enough to provide legal cover for measures that have some rational nexus with the distinction drawn between vaccinated and unvaccinated individuals. Measures (2) and (3) considered in this post reflect this, and it would also appear that most incentivizing measures are likely to find such a rational connection. By contrast, measures that are exclusively punitive in nature may perhaps struggle to find legal cover, unless the penalty bears some rational connection with the distinction between vaccinated and unvaccinated individuals. Measures (1) and (4) considered in this post seem to lack such a connection.  It is also the view of the present authors that measures designed to encourage vaccination are best introduced through legislation rather than executive action.