[Seocho-dong Legal Talk] "Quarantine Pass is Mandatory Vaccination"... Court's Resolute Ruling

[Image source=Yonhap News]

[Asia Economy Reporter Seongpil Cho] It was on the 3rd of last month, just one month after the implementation of the 'gradual return to daily life (With Corona).' The government declared a retreat from With Corona. Minister Kwon Deok-cheol of the Ministry of Health and Welfare announced the 'Follow-up Measures for the COVID-19 Special Quarantine Measures.' The main point was to apply the quarantine pass (vaccination proof and negative test confirmation) to adolescents as well. At the time, Minister Kwon emphasized the necessity, saying, "It is a necessary time to expand the quarantine pass and increase the vaccination rate to block the spread of infection among adolescents and to operate schools normally."

Parents' opposition was strong. Voices of dissatisfaction erupted here and there, saying, "How can you force children to get vaccinated when the causal relationship of vaccine side effects has not been properly confirmed?" Some parents even filed lawsuits. The National Parents' Association and others filed a complaint with the Seoul Administrative Court requesting the cancellation of the quarantine pass disposition and an injunction to suspend its effect. The defendants were Jung Eun-kyung, head of the Korea Disease Control and Prevention Agency, and Minister Kwon.

Attention inside and outside the court focused on the Administrative Division 8, the presiding court. The government's guideline to 'expand the quarantine pass' was firm. The stance was that there would be no further retreat. Public opinion among parents opposing the quarantine pass was also considerable. Even within the court, some parent judges expressed concerns that the guideline might be unconstitutional. It was a situation where any decision would inevitably be burdensome. Presiding Judge Lee Jong-hwan took the lead.

On the afternoon of the 4th, Judge Lee accepted the parents' group's request for an injunction to suspend the adolescent quarantine pass. He effectively rejected the government's claim that the adolescent quarantine pass was inevitable for quarantine. The 7-page A4 decision document contained many statements that could be interpreted as criticizing the government's quarantine pass guidelines. A legal insider said, "It seems like a decision document written with determination."

[Image source=Yonhap News]

In the decision document, the court first stated about the quarantine pass that "it effectively forces vaccination" and "it can only be seen as a measure that imposes significant disadvantages only on the unvaccinated group." By defining the quarantine pass as 'forced vaccination,' the court used the phrase 'can only be seen' instead of 'may be seen.' It firmly stated that the quarantine pass violates constitutional rights to self-determination and the principle of equality. A lawyer in Seocho-dong said, "It is unusual to use such definitive expressions in a decision document."

The court also rejected the government's justification for expanding the quarantine pass. The court said, "Considering that breakthrough infections among vaccinated people are also occurring in significant numbers, it cannot be said that the unvaccinated group poses a much greater risk of spreading COVID-19." It also stated, "It is difficult to conclude that not applying the quarantine pass to the unvaccinated would cause a significant increase in infection rates or other adverse effects." In effect, the court denied the government's argument that 'unvaccinated people increase the risk of infection spread,' which was the premise for expanding the quarantine pass.

The court also offered advice for 'minimal infringement' quarantine measures to the government through the decision document. "The majority of the public had already been vaccinated quickly to protect themselves from COVID-19 before the quarantine pass was implemented. Encouraging such voluntary vaccination to control severe cases and other factors seems to be the priority measure for the quarantine authorities." However, the Ministry of Health and Welfare immediately appealed on the morning of the 5th, just one day after the injunction decision, disregarding this advice.

Minister of Health and Welfare Kwon Deok-cheol. / Photo by Hyunmin Kim kimhyun81@

Judge Lee (Judicial Research and Training Institute class 30) graduated from Gwangju Science High School and Sogang University Law School. From February 2014, he served as a Supreme Court judicial research officer for three years. The Supreme Court judicial research officer position is an 'elite course' that must be passed to be promoted to a high-ranking judge. Many of the Supreme Court justices, including Chief Justice Kim Myung-soo, who form the Supreme Court plenary session, are former judicial research officers.

Judge Lee is in his second year at the Seoul Administrative Court this year and is not subject to the regular court personnel reshuffle scheduled for next month. He may also deliver the verdict on the main lawsuit he is handling along with this injunction case. However, there is a possibility that he may be transferred to another division through the judges' work allocation committee after the personnel reshuffle.