Court ruling does not restrict handling of public health emergencies — Jomo

Lawyer Jomo Thomas says the High Court ruling in the vaccine mandate case in St. Vincent and the Grenadines does not restrict governments’ ability to respond to public health emergencies.

“I want to say first off, that is not true,” said Thomas, whose legal team won in the vaccine mandate lawsuit that public sector unions brought against the government on behalf of public sector workers dismissed in December 2021 under the government’s vaccine mandate.

“That’s propaganda which was peddled — certainly I heard it from the prime minister …” he said on Boom FM on Wednesday in response to Senior Counsel Anthony Astaphan, lead counsel for the government in the case.

“… there’s no regional implication because the decision does not restrict the government. What the decision clearly says is yes, you can act, you have a public duty to act, but the public duty must be carried out in keeping with the Constitution. It must be carried out in keeping with certain rules.  You can’t act in an illegal fashion. You can act. You can’t act in a disproportionate way.”

“I think it’s because they misconstrued the case from the very beginning,” Thomas said.

“It is not whether government can make rules to combat a pandemic or an emergency –whether it’s medical or volcanic, hurricane, or whatever. That’s not the case.

“What we have here is that government, whenever they make rules, particularly when they’re taking on overwhelming powers that are intended or that the consequence may be the restriction of people’s rights and freedoms, they have to do that constitutionally, they have to act in a manner that is legal, it has to be proportionate, and it has to be procedurally proper,” Thomas explained.

In her judgment handed down on Monday, High Court judge Justice Esco Henry held that the government’s decision to deem public sector workers who did not take the jab. to have resign their jobs without affording them an opportunity to be heard, constitutes a breach of natural justice, contravenes the Constitution, is unlawful, procedurally improper and void.

Thomas said:

“So, where the government got itself in a muddle is that it believed that it could have invoked a medical emergency and simply run a horse and carriage through the Constitution and the rights and freedoms of people. And that is what Justice Henry told them they could not do.”

He said this is why the judge ruled that the mandate was unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety.

“Not that you can’t do it, but you have to do it legally,” he said.

Thomas noted that the government told public sector workers that they had resigned their jobs although those same workers “were going to their work until the government put in a clause in there that said they would come to work at the pain of criminal sanction”.

Thomas said the government maintained this position although the Privy Council had ruled in a similar matter from Trinidad that such a violation could not amount to criminal sanctions.

“… yet they told workers, ‘Don’t come on here because this is our plantation, don’t come here or we are going to do things to you that may result in a criminal sanction’. Those are the kinds of difficulties that they had.”

He said this was also the case when the Commissioner of Police, Public Service Commission, and Police Service Commission “simply made arbitrary rules that tell people … you can’t come to work, you have to get off the job …

“They didn’t give them a right to be heard,” Thomas said, adding that the concept of a right to be heard “is of ancient vintage”.

He said his team pointed the court to a 1512 case “where an English court says that ‘in order to do what we’re doing in these kinds of matters, the person who is aggrieved or a person who may be affected must be given a right to be heard’.

“You heard the prime minister on radio, you’re not getting a right to be heard … So, this is the kind of wild action that they were engaging in that has now turned back and slapped them in their faces.”

The lawyer said the government passed the Public Administrations Act giving the requisite minister the authority to change any law in St. Vincent and the Grenadines.

“… and one of the laws in St. Vincent and the Grenadines is the Constitution,” Thomas said, adding that the Public Administrations Act was passed in clear violation of Section 37 of the Constitution.

“And the court says, ‘No, you can’t do that. You can’t have this thing about you’re going to review it every two months. You can’t do that.’ … So those are the kinds of difficulties they had.”

He pointed out that Astaphan said that the government was acting at a time when COVID-19 was killing people and hospitalising others and that the government acted to protect children, the aged and the vulnerable.

“Those were emotive arguments, which the court roundly dismissed, because those were not issues that were not real, but even when you’re protecting people whom you claim the vaccine would save — although there’s no evidence to prove that — or that you’re protecting them from hospitalisation — although there’s no evidence of that — or you’re protecting children, whom the  scientific evidence says were the least likely to contract or transmit COVID, we know that … you tossed those in there, thinking you could pull on the heartstrings of a judge.

“But when the judge applied her mind, and thought about it, those were easily batted aside. And that’s why Justice Henry clearly said that the actions were unconstitutional. She said it is: unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety, those were the gravamen of our claims. And the judge, justifiably in my estimation, agreed.”

Thomas noted that his client sued the government on 13 points and the court ruled in their favour on all but one of them.

“We said that to invoke the medical emergency, the government did not do it properly because they did not cite Section 17.1 of our Constitution. The court says, ‘No. No. No. There’re parallel ways in which you could do this; section 43(b) allowed them to do it.’ We disagree with that.”

Thomas said Astaphan was right when he said that if the claimants had lost, they too would have appealed.

“But you see that’s the fundamental difference here though …We have prevailed on 12 of 13 issues. It is highly unlikely that even if the court were to disagree with Justice Henry on some of these issues, the court is going to disagree with them on the fundamental issues as it relates to whether workers had abandoned their jobs. Because we cited the law as to what constitutes abandonment. The respondents did not say squat-diddly about the law on abandonment.”

He said the government’s legal team tried to say that there were no implications for pension rights by citing section 77 and 78 of our Constitution, which spoke to those issues.

“This is why I was saying all along we were sound on the law, we were very, very solid on the law. And I think the decision of Justice Henry is proof of the fact that we knew what we were talking about,” Thomas said.

“This is why when I spoke at the solidarity rally for the teachers back in November, I invoked some words of our prime minister, which he likes to say. I told them to put their pots on the fire because they will be returned victorious.”

Thomas said that his team presented to the court 14 different ways in which the government could have handled the situation, including retiring them in the public interest; people whose pension had become due, and putting people on no-pay leave.

“There are a whole host of things that we said which other governments did. This government didn’t do that.  And they always go for broke and they always lose…” Thomas said.

He said it was the same situation when the Teachers’ Union sued the government for failing to honour the election leave provision of the Collective Bargaining Agreement.

“We took them to the Court of Appeal and the Court of Appeal laughed at them for trying to enforce the Constitution against the citizenry,” he said.