On May 28, 2021, Qatar eased certain second-wave COVID-19 lockdown restrictions imposed earlier this year. The second-wave restrictions were due to an uptick in serious COVID-19 cases, which had resulted in increased hospitalization rates and regrettably, deaths.
Qatar’s phased-in reopening prioritizes vaccinated individuals in specific instances, such as indoor dining, health and fitness clubs, barbershops, and beauty salons. Further, the scheme mandates that certain employees be vaccinated.
The approach builds on the practice, which went into effect earlier, of allowing persons vaccinated in Qatar to avoid quarantine upon re-entry into Qatar. The quarantine exemption was later extended to Gulf Cooperation Council (GCC) citizens, their families, and household employees if vaccinated in a GCC country. Bloomberg has reported that Qatar is in conversations to ensure that all World Cup attendees are vaccinated.
Other countries are similarly putting vaccinated individuals in a preferred category. Shortly after Qatar announced the re-opening plan, the United States Centers for Disease Control and Prevention (CDC) declared that vaccinated individuals in the United States were largely free not to wear a mask in indoor spaces and outdoors. The CDC declaration, however, is still subject to possible differing laws of the 50 States, which have traditionally regulated public health. In a somewhat similar vein, the European Union’s Digital COVID Certificate will substantially ease travel for EU citizens and residents who are vaccinated, yet it also facilitates travel within the EU for those who have received a negative test result or who have recovered from COVID-19.
Qatar’s priority to the vaccinated is grounded in promoting the safety of public and commercial venues. The secondary effect is that the vaccinated have a broader license to return to society and enjoy the benefits that entails. In this sense, the approach uses vaccinations as “carrots,” or means to incentivize everyone to get vaccinated.
These developments raise the issue of the legality of disparate treatment between vaccinated and unvaccinated persons. Critical public health objectives drive the difference. With COVID-19, society’s security is at stake. For any responsible government, maintaining order, and with that associated societal benefits, is a State’s fundamental obligation to its citizens and residents.
The drafters of the Permanent Constitution of Qatar (2004) were remarkably prescient as to public health matters. Specifically, Article 23 of the Constitution requires that the State of Qatar “foster public health, provide the means of prevention of disease and epidemics, and promote their cure in accordance with the Law.”
Before the adoption of the Constitution, Qatar had a legal regime for vaccinations. Articles 5 and 6 of Decree Law No. 17 of 1990 on the Prevention of Infectious Diseases require the health authority to “immediately take the necessary measures to prevent the spread” of an infectious disease and authorized the authority to quarantine and impose health surveillance. In Article 10, the appropriate minister could enable the authority “to prevent the spread of infection” by various means, including vaccination. Decree Law No. 17 contains an entire section devoted to “vaccination against infectious diseases” and authorized the health authority to organize vaccination campaigns for all or part of the population.
Against this health backdrop are the Constitution’s Guiding Principles of Society, which recognize that “equality” is a “core” Qatari societal value with the State obligated to “safeguard … equal opportunities for all citizens.” Further, the Constitution’s Public Rights and Duties provide that “[a]ll persons are equal before the Law.”
As constitutions tend to use broad language, understanding and giving effect to them can be challenging, particularly if the text contains conflicting language. Over the years, judges and constitutional law scholars have devised various interpretive standards. For example, they may recognize a hierarchy of norms, such as a priority to national security or health and safety, while minimizing the possible curtailment of other rights. Or they invariably attempt to harmonize the entirety of the constitution’s text.
Qatar has fulfilled the Constitution’s promise of equality as the Pfizer-BioNTech COVID-19 vaccines are available to citizens and residents, subject to reasonable restrictions based on age. It has done so without cost to the vaccinated. As of now, a person may decide not to get vaccinated but does so knowing that access to certain venues outside of the home could be limited.
Over the coming months, it will be interesting to watch if a broader class of employees in Qatar will be mandated to be vaccinated as a condition to return to the workplace. Such a requirement would be in line with the Constitution’s aim of securing the country’s safety from a pandemic and promoting public health. Further, it would likely lead to even more vaccinations. For employers, however, it may mean that to retain valuable employees who elect not to get vaccinated, remote work, if possible, may be a more long-term option.
Of note, the US Food & Drug Administration recently approved emergency use authorization of the Pfizer vaccine to those in the 12-15 age group. Qatar has now opened vaccine registration for children in this age group. So, another area to watch is the link between being vaccinated and the ability to attend school in person.
Finally, Qatar’s overall security depends upon the health of those outside of Qatar, particularly given Qatar’s status as an international commercial hub. The development of a comprehensive vaccination passport system for streamlined international travel would be a welcome next step.
Dr. Susan L. Karamanian
Dean at the College of Law, Hamad Bin Khalifa University
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