Court's vaccine pass suspension decision likely to affect entire vaccine pass scheme

A worker at a study cafe in Seoul removes a notice on the vaccine pass requirement, Tuesday, after the court suspended the government's enforcement of the vaccine pass system for private education facilities. Yonhap

By Bahk Eun-ji

A court decision to suspend the government's COVID-19 vaccine pass mandate for private academies and education facilities is expected to shake up the nation's entire vaccine pass scheme, as it ruled the system infringes on people's basic rights and the right to self-determination.

It is likely to cause a series of similar suits by operators of other facilities where the vaccine certificate system is ― or will be ― applied, complicating the government's plan to expand its vaccine pass requirement.

The Seoul Administrative Court, Tuesday, accepted the injunction request from groups of parents and private institutions to suspend the vaccine pass scheme for cram schools (“hagwon” in Korean), study rooms, study cafes, libraries and vocational training institutions. The suspension will continue until the court makes a separate ruling on their complaint to nullify the scheme, which is likely to take weeks or months.

The injunction request was aimed at children aged between 12 and 18 who were supposed to become subject to the vaccine pass from March 1. But the court decision went into effect immediately for unvaccinated adults, who have been unable to use those facilities ever since.

The court said the system infringes on the rights of unvaccinated people who plan to use the facilities to prepare for school admissions or job interviews, thus infringing on their right to education and freedom to choose a job.

It said that although the vaccine pass was adopted for public health and safety, it should not be so strong as to excessively violate unvaccinated people's right to self-determination with respect to their bodies. “People who have to use academies and other

facilities are forced to get vaccinated regardless of their wishes,” the court said. “They can't fully exercise their right to make decisions about their own bodies.”

It added its opinion that unvaccinated people do not seem to pose a significantly greater threat of spreading the virus than vaccinated people, considering that there have been many breakthrough infections.

With the court citing “self-determination” regarding the vaccine pass system, the issue has been shifted from children's right to education to “basic rights,” which can be also applied to all multiuse facilities where visitors are required to present their vaccination certificate, with major discount stores being included from Jan. 10.

The court decision is expected to have an influence on other similar legal disputes, including a recent suit filed by 1,023 medical workers calling for withdrawing the government's vaccine pass system, and a petition with the Constitutional Court by a high school student ― all against the vaccine pass system.

But the quarantine authorities refuted the claim that the vaccine pass infringes on basic rights, saying they are implementing the system to a minimum extent and the system should be maintained especially amid the rapid spread of the Omicron variant.

The Ministry of Health and Welfare announced that it would appeal the court's decision.

“Only 6.2 percent of the adult population are unvaccinated, but they take up 30 percent of infected people aged 12 or older, and 53 percent of seriously ill patients and deaths. At this moment, the vaccine pass system is essential to protect the unvaccinated and maintain the country's medical response system,” a health ministry official said.

Epidemiologists showed mixed responses. Some say the expansion of the vaccine pass requirement to educational facilities lacked sufficient scientific evidence, while others say it was regrettable that the court made the decision without considering the whole virus situation.

“Cram schools and private study rooms are usually used by limited numbers of people whose identities can be checked, not by random people. So they do not require the vaccine pass,” said Choi Jae-wook, a professor of preventive medicine at Korea University.

“If people can't use restaurants or cafes, they can eat at home. But academies and discount stores are connected to basic rights, so the government shouldn't have made the hasty decision to expand the vaccine pass system.”

However, Jung Jae-hun, an assistant professor at Gachon University's preventive medicine department, said, although the point of the court ruling is understandable, the fact that those aged 12 and older who were unvaccinated showed 2.3 times more chance of infection in the second week of December is obvious evidence that unvaccinated people are significantly more likely to spread the virus.

“The evidence presented by the court seems insufficient from an infectious disease expert's point of view, and it seems like a narrow understanding of the current virus situation,” Jung said.

Regarding the court's decision, Education Minister Yoo Eun-hae said the ministry will keep encouraging students and parents to get vaccinated by providing sufficient information promoting its necessity and effectiveness.