Does Gonsalves have constitutional authority for what he is doing?

By *Jomo Sanga Thomas

(“Plain Talk” Aug. 6, 2021)

The COVID-19 pandemic presents St. Vincent and, indeed, the world with significant health and economic challenges. Across the world, over four million people are said to have died; millions more lost their jobs as economies came to a standstill. Seventeen months after the WHO’s declaration that there is a medical emergency, our government is rearranging our laws and lives in unprecedented ways, in its attempt to deal with the problems arising from this crisis.

If left unchallenged, these changes will alter our constitutionally protected rights to privacy, assembly, religion, thought, conscience, and our right as all civilised beings to work to care for ourselves and our families.

Are these proposed actions constitutional? Is Prime Minister Gonsalves correct in claiming that he has the law on his side in his draconian drive to deal with the health and economic situation confronting us? Does the common law and statutory law allow the government to arrange and rearrange our lives? 

All citizens have constitutionally protected rights but are not absolute. There are exceptions.  Last week Gonsalves declared that the Public Health Act (1977) makes provision for mandatory vaccinations.

Is he correct? 

Our Constitution offers directions on how to deal with emergencies. We reproduce Section 17 in full for convenience and context:

Declaration of emergency 

(1) The Governor-General may, by proclamation which shall be published in the Official Gazette, declare that a state of emergency exists for the purposes of this Chapter. 

(2) A proclamation under this section shall not be effective unless it contains a declaration that the Governor-General is satisfied:

a. that a public emergency has arisen as a result to the imminence of a state of war between Saint Vincent and a foreign state; 

b. that a public emergency has arisen as a result of the occurrence of any volcanic eruption, earthquake, hurricane, flood, fire, outbreak of pestilence or of infectious disease, or other calamity whether similar to the foregoing or not; or 

c. that action has been taken or is immediately threatened by any person, of such a nature and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life. 

(3) Every declaration of emergency shall lapse:

a. in the case of a declaration made when the House is sitting, at the expiration of a period of seven days beginning with the date of publication of the declaration; and 

b. in any other case, at the expiration of a period of twenty-one days beginning with the date of publications of the declarations, unless it has in the meantime been approved by resolution of the House. 

(4) A declaration of emergency may at any time be revoked by the Governor-General by proclamation, which shall be published in the Official Gazette. 

(5) A declaration of emergency that has been approved by resolution of the House in pursuance of subsection (2) of this section shall, subject to the provisions of subsections (3) of this section, remain in force so long as the resolution remains in force and no longer. 

(6) A resolution of the House passed for the purposes of this section shall remain in force for twelve months or such shorter period as may be specified therein; Provided that any such resolution may be extended from time to time by a further such resolution, each extension not exceeding twelve months from the date of the resolution effecting the extension; and any such resolution may be revoked at any time by a further resolution. 

(7) A resolution of the House for the purpose of subsection(2) of this section and a resolution of the House extending any such resolution shall not be passed in the House unless it is supported by the votes of two-thirds of all the Representatives; and a resolution revoking any such resolution shall not be so passed unless it is supported by the votes of a majority of all the Representatives. 

(8) Any provision of this section that a declaration of emergency shall lapse or cease to be in force at any particular time is without prejudice to the making of a further such declaration, whether before or after that time.  

Based on these provisions, has the government followed the law as to how and when a medical emergency is declared? Are the government’s actions in keeping with Section 17 of the Constitution? Is the dependent on statute sufficient to make the proposed changes? 

Yesterday (Thursday), government was expected to pass amendments to the Public Health Act and Public Officers Act.  These amendments remove the section that made exceptions for child and ward and deletes the word voluntary before immunisation. 

An amendment to the Public Health Act gives the Chief Medical Officer sole authority to determine the medical condition of the citizens, thus stripping them of their right to privacy and choice of a medical practitioner. 

Another of the proposed changes lodges with the government the authority to determine whether someone’s religious objection to vaccination has a “good faith” basis. In so doing, the government intends to strips away the objection based on freedom of thought. 

The amendments, intended to pressure public employees into taking the vaccine, change the law to remove the cost of the test from the government. 

In the future, public employees will have to pay $27 for each test. Public employees will be required to demonstrate that that they have a negative status every two weeks.

In February 2021, Government, through Statutory Rules and Orders no. 6, declared a medical emergency. The government cannot do what it is doing without invoking section 17 of the constitution.  

Section 17 (2) demands that the Governor-General is satisfied ‘b. that a public emergency has arisen as a result of the occurrence of outbreak of pestilence or of infectious disease.’

Was such a proclamation ever made by Governor-General Dame Susan Dougan regarding the “outbreak of pestilence or of infectious disease?” If the answer is no, what then is the constitutional authority for government high handed actions of the government? 

It must be understood that even where a state of emergency is declared, citizens don’t lose their rights. The government must at all times demonstrate that its actions are necessary, reasonable and proportionate. The government’s actions cannot meet constitutional muster.  

We are at a most dangerous point in our history. We must stop the erosion of our rights and freedoms. 

*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former Speaker of the House of Assembly in St. Vincent and the Grenadines.

The opinions presented in this content belong to the author and may not necessarily reflect the perspectives or editorial stance of iWitness News. Opinion pieces can be submitted to [email protected].