A lawyer for the claimants in the COVID-19 vaccine mandate lawsuit against the government has reminded the High Court that the nation’s highest court has ruled that the Constitution insulates the Public Service from direct political interference.

Cara Shillingford-Marsh, lead counsel for the claimants, noted that the Privy Council has ruled that the whole purpose of Chapter 8 of the Constitution, is to insulate members of the civil service, the teaching service, and the police service from political interference being exercised directly upon them by the government of the day.

“The means adopted for doing so, was to vest in autonomous conditions, to the exclusion of any other person or authority, power to make appointments to the relevant service, promotions and transfers within the service and the power to remove and exercise disciplinary control over the members of the service …” Shillingford-Marsh said, quoting a Privy Council ruling.

She said that under the system of Government that exists in St. Vincent and the Grenadines, the public service exists regardless of which government is in office.

“…and this is necessary for the continuity of the state. It cannot be that with every change of government, public servants are replaced,” she said.

“This is why the Public Service Commission was created: to insulate the public service, so that public servants would be able to exercise their functions in a manner which is one of integrity, in a manner which is in keeping with their duty. And that duty being a duty owed to the state, not a duty to Cabinet, not a duty to any politician who might occupy public office at any particular time,” Shillingford-Marsh said.

She was at the time making out a case that Minister of Health St. Clair Prince and Prime Minister Ralph Gonsalves, in his capacity as as Minister of National Security, acted illegally when they passed regulations mandating the COVID-19 vaccine for public sector workers.

The lawyer argued that the Public Service Commission acted on the instructions of the ministers when it dismissed workers for not taking the jab.

Hundreds of public sector workers lost their jobs when the mandate came into effect last December.

Statutory Rules and Orders (SR&O) 28 and 32 of 2021, two laws passed by Cabinet, brought the law into effect.

Shillingford-Marsh argued that the real effect of the SR&O 28 and 32 “was essentially to do away with a very large segment of the public service, in the sense that these members were effectively terminated on the basis of regulation 8”.

She said that the permanence of the termination infringes section 77(12) of the Constitution, “because, as we have seen and as has been admitted by the other side, the SR&O 28 has been amended to the extent that it no longer applies to 11 categories — majority of the employees — but it still applies to health care employees”.

She was speaking of an amendment to the SR&O that came into effect in August.

“And based on the amendments, the employees who were affected by SR&O 28 still remain out of a job. And they now are expected to apply to the relevant authorities so that they could be re-engaged,” Shillingford-Marsh said.

During last week’s trial, Anthony Astaphan, lead counsel for the respondents (Government) in the case, defended that change to the vaccine mandate, saying it was based on science and not “a flip of the coin in the air”.

Shillingford-Marsh noted that in the document announcing the change to the mandate, the government said it has approved the employment of unvaccinated persons in specified positions provided by SR&O 28 of 2021.

“In this regard, Cabinet has decided that individuals who apply for positions within the public service for which there is currently a vaccine requirement under SR&O No. 28 of 2021 may be considered for employment on a case-by-case basis,” the lawyer said, quoting the document.

She commented:

“So here you have it, exactly what the Privy Council in Thomas v. the Attorney General told us that the Constitution tried to prevent. Cabinet has decided that these individuals can apply and they will be determined on a case-by-case basis.”

Cabinet “is the government of the day,” Shillingford-Marsh told the court, adding, “it’s a group of ministers who form the government of the day.

“And it cannot be that the law, the courts, the guardian of the Constitution, would permit the government of the day to terminate, effectively, the employments of public servants, and then communicate to the public servants that although you’re still unvaccinated, apply to us and we will decide whether to employ you on a case-by-case basis.”

The lawyer continued:

“Public servants are not supposed to be at the mercy of the government of the day. They’re not supposed to be at the mercy of cabinets. They are supposed to be insulated from political interference…”

She said the government’s announcement of a change in the mandate was “evidence that the effect of these regulations is to terminate a large number of public servants for no good reason and then make them at the mercy of Parliament.

“… The fact that the government completely changed its policy, and it’s now allowing this very same unvaccinated persons back into the workplace, that is very telling.”

Shillingford-Marsh said the “complete turnaround” shows just how “arbitrary and capricious the regulations are”.

She said that the regulations passed by the government “amounted to a purported usurpation of the function of [the Public Service Commission] … which has exclusive jurisdiction under the Constitution to make such a determination”.

She said that the regulation is, therefore, ultra vires, a Latin phrase meaning “beyond the powers”.

“And I would go further to say that it is therefore unconstitutional being in breach of section 77(12) of the Constitution,” Shillingford-Marsh said.

Shillingford-Marsh further argued that even if the law under which the regulations were passed stands up to judicial muster, the regulations themselves are disproportionate regarding the objectives and the mandates of the law.

“Now, the courts have recognised that where the decision in question interferes with fundamental rights, a structured test of proportionality applies,” she said.

She said that in the case at hand, with the objective being public health, “there must be a rational connection between the objective — that is protecting public health and the actual measures taken, whether there are less intrusive measures, which could have been used.

“And we are saying yes, there are less intrusive measures. In terms of the rational connection, we say no, there’s no rational connection between protecting public health and demeaning individuals to have abandoned their positions.”

She said that the regulations used to deem the public sector workers to have abandoned their jobs “may, in fact, result in a bigger public health crisis, with persons being unemployed — all of the mental stress which goes with that”.

Shillingford-Marsh argued that less intrusive measures such as face masks and physical distancing could have been used.

“… whether having regard to these matters and the severity of consequences a fair balance has been struck between the rights of the individual and the interests of the community. That we say no to,” she said.

Vaccine Mandate Trial: Mandate shows PSC not insulated from politicians – lawyer