Discriminatory welfare violates Constitution

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Today marks the 100th day since L.Oyun-Erdene took office as prime minister, but it’s starting with yet another inhuman act by the government in light of COVID-19.

About a month ago, Mongolian officials claimed that they didn’t reserve second doses for those who were given the first shot of COVID-19 vaccine because they solely relied on the schedule for the next supply of the vaccine. Understandably, this was followed by heavy criticisms by the public. Since then, the government has compensated by buying every dose they could find to the point that it is now offering cash incentive of 50,000 MNT to those who got the second shot of vaccine.

What’s worrisome is that the government is resorting to coercion and compulsion to get people vaccinated. They have threatened to bar access to social welfare, such as food stamps, compelling recipients to get vaccinated first.

I believe we all can agree that COVID-19 vaccination progress is quite noticeable. But it’s such a shame to threaten citizens with access to social welfare services. Welfare is not something that should be toyed around with, especially since there’s no legal obligation to get vaccinated and there are so many valid reasons not to get vaccines, such as allergies, pregnancy, lack of access, and other complications.

On May 5, Minister of Finance B.Javkhlan said that the government decided to take compulsory measures against those who are not vaccinated yet.

“There are 47,000 citizens who get food support welfare service in the city, of which 29,000 have not even gotten their first dose of the vaccine yet. Also, about 80,000 out of 211,000 people who get social welfare have not gotten their vaccines. Therefore, starting from this day, (we) will provide social welfare service only to those who got vaccinated.”

I believe this is, with or without intention, pegs the public against the most vulnerable group in society, portraying them as the most inactive bunch in the population. This approach only isolates and hurts those who are in most need of help rather than encouraging and convincing the public to get vaccinated. There is no reason to warrant a condition to get vaccinated, which should be voluntary, for those who are on welfare.

The right to social protection and security is one of the fundamental human rights. Therefore, it’s enshrined in the United Nation’s International Covenant on Economic, Social, and Cultural Rights. Article 9 of the Covenant reads “States parties to the present Covenant recognize the right of everyone to social security, including social insurance”.

Mongolia is a member state to this treaty. It has signed it on June 5, 1968, and ratified on November 18, 1974. Since Mongolia is obliged to recognize and guarantee the right of everyone to social security, Mongolia has made it a constitutional right, one of the fundamental rights that is safeguarded in and by the Constitution of Mongolia.

This is reflected in Article 16.5 of the Constitution of Mongolia, which reads “the right to material and financial assistance in old age, disability, childbirth, and childcare, and in other cases as provided by law”. Furthermore, Mongolia enacted the Law on Social Welfare to ensure a system for social protection. Article 3.1.1 of the Law of Mongolia on Social Welfare defines what “social welfare” means and prescribes the target citizens and members of households who need essential social welfare supports.

3.1.1. Social welfare means state activities including pension, allowance, and special service under a purpose to guarantee the most basic needs of a citizen who has special needs because of deteriorating health, lack of family care or nursing, unable to live independently or without the help of others; or a citizen who is a member of a household that essentially needs social welfare support and assistance.

According to the government, as of May 9, 74.3 percent of the target population (adults) have gotten their first dose of COVID-19 vaccine, and 29.9 percent were fully vaccinated. In Ulaanbaatar, 93.2 percent of adults got their first shot and 49.7 percent are fully vaccinated, according to the head of the Communication and Public Relations Department of the Government. This is a very good rate.

But why is the government undermining the people’s constitutional right to social security to compel what was stated to be a voluntary activity? Obviously, another reason behind such a blatant threat could be the upcoming presidential election in June. Vaccinating as many people as soon as possible is vital for fighting the pandemic. However, the need to achieve this goal does not justify human rights violation.

Vaccination against the COVID-19 is not legally mandatory because it’s voluntary. The Immunization Law regulates mandatory vaccines, which means there are legal consequences for refusing mandatory vaccination. However, it’s not the case here, because the COVID-19 vaccine is new and only approved for emergency use by WHO.

Accordingly, social security is not something the government can use as an instrument to force its vulnerable citizens to do something that ought to be voluntary. The purpose of social security is to ensure the right to life, the bare minimum to not die, and to also prevent or decrease poverty and other social difficulties.

According to the UN’s General Comment No. 19, social security, through its redistributive character, plays an important role in poverty reduction and alleviation, preventing social exclusion and promoting social inclusion. It further explains that the right to social security encompasses the right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly for children and adult dependents.

Therefore, social welfare is not only about food stamps, as specifically emphasized by Minister of Finance B.Javkhlan.  It’s much more than that and must not be used as an instrument to threaten those in vulnerable situations, especially when they actually have the right to decide not to get vaccinated. 

This is not to say that I’m against vaccination. On the contrary, I support it fully and believe in its necessity. But there also legitimate reasons not to get vaccinated, and the government needs to recognize that as well. The act of withholding welfare unjustly is a violation of the people’s constitutional rights and an act of discrimination against those who are not vaccinated.

In fact, the government is also obliged not to discriminate against or bully its citizens when fighting against COVID-19. According to Article 5.1.5 of the Law of Mongolia on COVID 19 Prevention, Fight, and Mitigation of its Socioeconomic Impact, one of the fundamental principles of the law is not to discriminate or oppress anyone. Yet this is a clear inhuman act by the government brought on as a result of COVID-19.

This isn’t the first human rights violation by the government that happened as a result of COVID-19 related measures. For example, the government “let” about 40 passengers including adults and children stay in an intercity bus for more than 24 hours and when the passengers requested to use a toilet, they give the passengers a bucket to use in the bus. At all times, people have a right to dignity. But this was a gross violation.

We are all having a very tough time because of COVID-19. In these dire times, it also seems that the real character of many, especially those in power, is being revealed. COVID-19 does not impact everyone equally, the most affected are the vulnerable. Therefore, it’s vital that the fundamental and constitutional human rights of everyone is protected under any circumstances. While human rights must be protected at all times, but a pandemic is temporary.

Article 45.2 of the Constitution, which states, “If resolutions and ordinances are incompatible with laws and regulations, the government itself or Parliament must invalidate them”, must be enforced with regard to setting an unjustified condition for access to social security.

Myagmardorj Buyanjargal
Myagmardorj is a freelance writer and certified translator who holds a Bachelor of Law Degree from the National University of Mongolia and Bachelor of Science Degree in engineering in mining technology from the Mongolian University of Science and Technology.