Senior Counsel Anthony Astaphan said he is a professional who is “not guided by fees, by politics or emotion”.
He made the point on Boom FM on Wednesday, saying it would be reckless not to appeal the High Court ruling that the government’s firing of people under its COVID-19 vaccine mandate was unconstitutional.
“All of the prime ministers that I have represented, including the prime minister of St. Vincent, will tell you that they are — or they can never say publicly that every time they’ve asked me for advice that I have given them the advice that they expected to get from me.”
Some members of the public have said that the government should obey the court ruling and reinstate the workers, paying them all wages that they would have earned.
They said that an appeal would be a further drain on the public purse.
The opposition New Democratic Party has said it would discontinue any subsisting appeal if it is elected to office in the next general elections, constitutionally due by February 2026.
Astaphan, however, said that unless the government’s case was hopeless, it would be reckless to not ask the Court of Appeal to review the High Court ruling.
“It would be reckless in the extreme to leave the judgment there without testing it in the Court of Appeal, especially as the team, unanimously, there’s no dissent, unanimously agreed that there’s merit in appeal,” he said.
“None of us, whether for fees, as some of your listeners suggest, or politics or emotion would have advised the government, led by a prime minister who is also a lawyer, with an attorney general to appeal a decision if we felt honestly, it had no merit whatsoever.”
The legal team has advised the government to appeal without even reviewing the full reasons for the judge’s decision as the full judgment is yet to be released.
Astaphan said the decision to advise the government to appeal was based on the legal team’s understanding of the constitutional issues, the evidence and the public interest.
“And if it had happened in any other country in the OECS in which I have appeared in relation to the COVID-19 vaccine, I would have given the government very similar advice,” Astaphan said, emphasising that it is imperative that the matter be determined at the higher level.
“And if your listeners and the unions really want to know how much money I charge, ask them to get somebody in the Parliament to ask the minister how much I charged, how much I got paid. But that’s irrelevant, as far as I am concerned. That was not an operating factor in our mind when we advised the government.”
The SVG Teachers’ Union, Public Service Union and the Police Welfare Association brought the case against the government on behalf of their members.
Justice Henry ruled that the government’s decision to deem the public officers who did not take the COVID-19 vaccine to have resigned their offices without affording them an opportunity to be heard, constitutes a breach of natural justice, contravenes the Constitution, is unlawful, procedurally-improper and void.
But Astaphan said the workers had four choices: take the vaccine, apply for medical exemption, apply for religious exemption, or “not to do any of the above but to bear the consequences of your own decision.
“They made a calculated decision not to take the vaccine without advancing any medical evidence to justify the risk. It turns out the judge said that they were right. We maintain that they were wrong, absolutely wrong, and that the law is constitutional.
“And for us to perhaps limit the debate from the emotion and from the politics, it’s important that we get it to the Court of Appeal for the Court of Appeal to make a decision on it. They may or may not agree with us.”
Astaphan said he never says he is “100% sure that we’re going to win a case but we are highly confident”.
He also spoke of the public interest element of the case, saying that people in the eight-member Organisation of Eastern Caribbean States (OECS) of which SVG is a member, have been asking about the impact of the court ruling on their various jurisdictions.
“‘What are the implications?’ ‘How do we deal with that in our jurisdiction?’ ‘Are there any similarities?’ ‘What about others who may have lost their jobs based on the fact that they didn’t take the COVID vaccine in other jurisdictions?’” Astaphan said, mentioning questions he said he has been asked.
“And, in fact, some of the comments that I have received personally from other jurisdictions, ‘I hope you are appealing this matter’, ‘It should not be allowed to stand because this affects all of us in the OECS’,” Astaphan said.
“And it does. Whether we like to hear it or not, this is not a local village, Kingstown, parochial matter. This is a matter of extreme importance throughout the Caribbean and we just can’t leave it there. What happens next year when another crisis comes? Where does the government start? Where does it start in the light of this judgment?”
Astaphan said his team will try to ensure that the matter is heard expeditiously.
“If we can get it heard before the summer holidays, fantastic, if not by September at the very latest this has to be ventilated,” he said, adding that because the matter is one of great public interest, his team will ask the Court of Appeal to give it priority.
“We’re not running from the fight. We’re going to ask for it to be dealt with as a matter of priority.”