Astaphan sees ‘compelling reasons’ to appeal vaccine mandate ruling

Senior Counsel Anthony Astaphan, the chief lawyer for the Government of St. Vincent and the Grenadines (SVG) in the vaccine mandate lawsuit, in which the High Court ruled against the government on 13 of the 14 issues, says there are “compelling reasons” why the Court of Appeal should review the matter.

“… it affects the ability of every government, including the government of St. Vincent and the Grenadines, as to how they confront the next infectious disease crisis that it faces, which was killing citizens, hospitalising citizens, disrupting businesses as some of the countries suffered significantly from the shutdowns of the COVID crisis,” Astaphan said on Boom FM, on Wednesday.

“There needs to be clarity in the law, a higher level of understanding of what the law is to guide the government in the future,” he said two days after Justice Esco Henry delivered what Jomo Thomas, one of the claimants’ lawyers, described as “the legal equivalent of a slam dunk”.

Justice Esco Henry is yet to release the full reasons for quashing the decision of the government to deem hundreds of public sector workers as having resigned their jobs, after they failed to take a COVID-19 vaccine by December 2021.

The judge ruled that none of the workers cease to be entitled to hold the respective offices to which they were appointed respectively, by the Public Service Commission, the Police Service Commission and the Commissioner of Police  at the relevant time.

She said that the dismissed workers are entitled to the full pay and all benefits due and payable to them in their respective capacities as public officers or police officers, inclusive of any accrued pension and gratuity benefits or rights from the respective dates on which they were deemed to have resigned.

On Monday, in his immediate reaction to the ruling, Prime Minister Ralph Gonsalves said on WE FM’s Shake Up that his government has accepted its legal team’s advice to appeal the decision.

“… the lawyers for the government are quite satisfied that it is likely that the judgment, this judgment, will be overturned on the Court of Appeal,” said Gonsalves, a lawyer who is also minister of legal affairs.

“.. the government is satisfied that our actions were lawful. We were so advised and this matter is too important for us to just rely on the judgment of a court in the first instance, one judge in the first instance. Let’s hear what the Court of Appeal thinks,” Gonsalves said.

The prime minister said his Unity Labour Party administration was “satisfied that our actions saved lives and livelihoods, at the height of the pandemic”.

‘very surprised’ by the court ruling

Meanwhile, Astaphan said on Wednesday that his team was “very surprised” by the court’s decision.

He said that his team had advised the government to appeal despite having not seen the full judgment.

“Well, we have the specifics of the reasons she gave on Monday but we don’t have the written judgment yet. But you don’t need the written judgment,” Astaphan said.

“If a judge spends an hour giving the reasons why she’s ruled against and the media is St. Vincent has referred to it as a ‘slam dunk victory’ and we have the reasons given, notes were taken of the reasons, the legal team discussed it. We had two zoom meetings after delivery of the judgment before we made a decision to advise the government on the way forward.

“And we can’t wait because this is a matter of critical importance and it’s now an urgent one based on some of the orders the judge made.”

In her ruling on Monday, the judge said that the government is liable to each claimant for damages for the constitutional breaches “inclusive of an additional award to reflect the seriousness of the breaches and to deter any recurrence with interest at the statutory rate of 6% per annum”.

He said his team is applying for a stay of execution of the judge’s orders, including the workers having never ceased to be public officers, and are entitled to their pay, etc.

Astaphan said his team is hoping to have a decision from the Court of Appeal by September, if not by the middle of the year.

“… we do not agree with the judge’s findings on every single matter … the constitutionality of a special measure, the issue of the right to be heard, reasonably required, proportionality, deprivation of pension, all of those that she ruled against,” the lawyer said.

He said the case contains critically important constitutional questions that need to be determined by a higher court.

Astaphan, who is Dominican and has worked for governments across the Organisation of Eastern Caribbean States, said people have been asking about the implications for how governments in the region respond to another public health emergency.

He said his team is opposed to the judgment “because it’s wrong”, adding that the context of the government’s actions is also important.

“This is not a civil commotion case or riot case, imprisoning people without reasonable cause. This is a case when there was a COVID crisis that killed people in St. Vincent and the Grenadines, that hospitalised [people], that disrupted social life and so on,” he said.

He said the government was required under the Constitution, to take measures in the public interest and in the interest of public health to curb the spread of the COVID-19 virus.

“Having taken what the government based largely on medical advice given by the chief medical officer and supported by POHO and others to find out that every single thing that government did in seeking to protect the lives of the very public officers and others who sued the government … is wrong is a conclusion that cannot be left unchallenged,” Astaphan said.

“There has to be some clarity from a higher court as to whether what the government did was constitutionally proper or not.”

Astaphan suggested that his team is prepared to advise the government to take the case all the way to London-based Privy Council, SVG’s highest court.

“The government has the same right of appeal on final decisions as every citizen like yourself. If you feel aggrieved by the decision, regardless of the consequences, you have to make a decision, whether you’re accepting, negotiating, or you fight it again until the Privy Council, but we’re not at that stage yet,” he said.

“We just want to get to the Court of Appeal and let the Court of Appeal make a decision and based on that decision, the Attorney General, solicitor general, Prime Minister and the Cabinet will have to cross whatever bridge is delivered by the Court of Appeal.”

Astaphan, however, said he was confident that the Court of Appeal will rule in favour of the government. 

“We were confident from day one. We are confident and we are still confident. This is a public health issue. And it must be dealt with and determined as a public health issue,” Astaphan said.

He said that every fundamental right under the Constitution is subject to the laws reasonably required in the interest of public health.

“And there was nothing on the record to suggest that the recommendations for the mandate, the vaccine mandate made by the CMO was not really required in the interest of public record. There was no medical evidence to challenge her evidence,” Astaphan said.