By *Jomo Sanga Thomas
(“Plain Talk” Dec. 23, 2021)
Last Monday, lawyers representing the Teachers’ Union, Public Service Union and the Police Welfare Association filed a matter in the High Court to challenge the government’s decision to dismiss public employees who refused to take the COVID-19 vaccine. Apart from the workers’ organisations, six aggrieved persons, two from each union and the welfare association, joined the suit.
The claim was brought against the Minister of Health, Wellness and the Environment, Public Service Commission, Commissioner of Police and the Attorney General.
The applicants intend to seek the following relief by way of judicial review if leave is granted:
(a) A declaration that Regulations 5(1), 8(1) and 8(2) of the said SRO are unlawful on account of being ultra vires, disproportionate, unreasonable and irrational.
(b) An order in the nature of Certiorari to move into the honourable court and quash the decision by the first Respondent to make the rules contained under Regulations 5(1), 8(1) and 8(2) of the said SRO.
(c) A declaration that the decision of the second respondent to terminate the
employment of the Applicants without an opportunity for a hearing is a breach of the principle of natural justice.
(d) An order in the nature of Certiorari to remove into the honourable court and quash the decision by the second respondent to deem the applicants to have resigned from their office and ceased to be an officer in accordance with Regulation 31 of the Public Service Commission.
(e) Such further or other relief as this Honourable Court deems just;
SR&O 28 of 2021 introduced the vaccine mandates, designated the group of workers who must be vaccinated and allowed for their dismissal if they did not comply.
The court was alerted that the applicants were making a joint judicial review/constitutional application. While an aggrieved party has to seek leave to judicially review actions of any state institution, it can bring a constitutional claim once it can establish that its constitutional rights have been violated or are about to be violated.
The constitutional reliefs the applicants intend to seek are the following:
A declaration that section 43B of Chapter 300 of the Public Health Act (Amendment), insofar as it grants power to the Minister of Health to declare a Public Health Emergency, is contrary to section 17 of the Constitution and is therefore null and void.
A declaration that Statutory Rules and Orders No. 38 of 2020 cited as the Public Health Emergency (Declaration) Notice 2020, which was made pursuant to the purported power of the Minister of Health to declare a public health emergency under section 43B, is contrary to section 17 of the Constitution and is therefore null and void.
A declaration that the Statutory Rules and Orders No. 28 of 2021 cited as the Public Health (Public Bodies Special Measures) Rules, 2021 and established pursuant to the purported power of the Minister under section 43B of the Public Health Act Chapter 300 of the Laws of St. Vincent and the Grenadines are unlawful, unconstitutional and void. The said SRO amounts to inhuman and degrading treatment of the Applicants contrary to section 5 of the Constitution. The said SRO also infringes the Applicants’ right to protection from deprivation of property without compensation under section 1 of the Constitution.
We have said it before, and this is as good a time as any to repeat. Had it not been for the vigilance of the Teachers’ Union and the Public Service Union, the courageous and brilliant judges in the civil division of our court and erudite, legal heavyweights, who occupy the benches of the Court of Appeal, St. Vincent and the Grenadines would have been a very bleak land when it comes to due process and the rule of law.
Some in absolute disregard for the legal and constitutional health of the nation have attacked and criticised the unions’ leadership and any worker who refused to bend to the government’s mandate. Because partisan politics predominates anything and everything that happens here, little or no thought is given to right or wrong, morals or ethics. Political hygiene is not valued. Vulgar uncritical discourse is encouraged while the consciousness and welfare of the people are discouraged.
The legal challenge was long in coming. The union leadership became impatient, especially when the deadline loomed and workers livelihood and future existence hung in the balance. The leaders had to be convinced that these types of claims take time. With so much at stake, great care had to be taken to ensure that the claim was not knocked out of court on a technicality. These are matters that should be heard and decided on their merits.
Citizens have travelled this road before. The names Leon “Bigger Bigs” Samuel, Elroy Boucher, Joel “Mango” Poyer, Elvis Daniel, Kenroy Johnson, Otto Sam, Addison Thomas, Jamali Whyte will long be remembered as individuals who fought against the vindictive, spiteful, discriminatory, irrational and illegal policies of the Ralph Gonsalves administration and won. Their efforts convinced more and more people that there is value to resistance.
Just as with teachers Daniel, Johnson and Thomas, some have said that the claims are meritless and hopeless. (It must be remembered that the government made then broke its agreement with the Teachers’ Union only to be slapped down by the Court of Appeal). They argued that with the high priced, high profile legal luminaries defending the government’s actions, this claim has little or chance of success. They are reminded that cases are won in the court of law and not on the airways. They are won or lost on the basis of law, preparation and advocacy and not just on who represents whom.
Plain Talk is convinced that the workers and their representatives have much more than a fighting chance in these matters. All that is left to be proven is that the health minister significantly overreached in exercising his responsibility and that the government’s actions were illegal, irrational, disproportionate and unconstitutional.
*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former Speaker of the House of Assembly in St. Vincent and the Grenadines.
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