Gov’t did exactly what the Constitution tries to prevent — judge

High Court judge Justice Esco Henry says that the Commissioner of Police (COP) and the chairman of the Public Service Commission (PSC) admitted that they ceded to the minister of health, without debate or challenge, powers that the Constitution gave specifically to them.

“In my opinion, this can only be characterised as the abdication of their jurisdiction and responsibility in favour of the minister and the minister of national security,” the judge said on Monday as she delivered her judgment in the vaccine mandate case.  

“This application resulted in this case in what the framers of the Constitution was seeking to avoid, by way of insulating public officers and police officers from the interference in their employment relationship with the Crown by political or other actors,” the judge pointed out.

The court held that the PSC, the COP and the Police Service Commission, by invoking, respectively, Public Service Regulation 31 and section 73 (a) of the Police Act, acted in a procedurally improper manner or misdirected themselves and acted illegally by acting on the minister’s directions to them to deem that the claimants had resigned their offices.

Regulation 31 of the PSC Regulations says that a public officer who is absent from duty without being on leave for 10 days is considered to have abandoned his job.

Under the vaccine mandate implemented in December 2021, public sector workers who the Minister of Health had deemed to be frontline workers, were required to be vaccinated against the COVID-19 virus.

Any unvaccinated workers who attended work were considered to be absent and after 10 days, they were deemed to have abandoned their job.

Justice Henry said that while there is no direct evidence of direction or control from any person, the COP and the PSC, as well as the Police Service Commission “demonstrated that they did not address their minds to the reality that they were vested with exclusive authority to make rules governing appointment and termination of employment of their employees”.

The court said that the minister of health and minister of national security by making regulation 8(1) and (2) and section 73 of the Police Act, had “usurped their respective authority by purporting to introduce procedural rules, dictating circumstances in which a public officer or police officer is to be deemed to have resigned his office”.

The court said this function was explicitly reserved for the relevant commission and, in appropriate cases, the COP.

By their own evidence, the COP and the chairman of the PSC admitted that they ceded that authority to the minister when they applied regulation 8(1) and (2) and section 73(A) without debate or challenge, Justice Henry held.

Regulation 8(1) of the Statutory Rules and Orders No. 28 of 2021, commonly called the vaccine mandate law, provides that an unvaccinated employee must not enter the workplace and is to be treated as being absent from duty without leave.

Regulation 8(2) states that Regulation 31 of the Public Service Commission Regulations applies to a public officer who is absent from duty without being on leave.

The court further held that rule 8(1) and (2) of the special measures rules are illegal, disproportionate, and that the minister exceeded his mandate by making them.

“I’m satisfied on the evidence that when making regulation, 8(1) and (2) the minister was not acting on any advice given or recommendations made to him by the chief medical officer pursuant to section 43(2),” the judge said.

Having deemed the workers to have abandoned their jobs, the PSC, COP and the Police Service Commission gave the workers letters saying that they had resigned their jobs.

However, the court said that based on the circumstances of the case, the PSC, COP and the Police Service Commission, despite their averments to the contrary, ceded to the minister their exclusive obligation and jurisdiction to make procedural rules and guard against incursion by a third party.

“They thereby misdirected themselves and acted unlawfully by acting under the minister of security’s directions,” she said, adding that the result is that all letters issued to the dismissed workers pursuant to regulation 8(1) and (2) violated respectively section 77(12) and (6) and (7) of the Constitution.

“Any such letters issued by the Community College or other line managers to the respective claimants violated sections 84(6) and (7) of the Constitution,” Justice Henry ruled.

The judge also ruled on the issue of whether the claimants’ contractual and constitutional rights are subject to the impugned laws made by the minister of health and minister of national security in the interest of public health.

“The short answer is that to the extent that any of the impugned laws violate the Constitution or are for any other reason unlawful, they cannot form the basis of an enforceable contract of employment, for the simple reason that it is a trite principle of law, that an illegality in a contract is not enforceable in a court of law,” Justice Henry said.

“Therefore, in the face of the claimants’ terms and conditions of employment, and their status as public officers and or public officers, the decision by Cabinet to approve the special measures SR&O, the claimants are not obliged to comply with any unlawful or invalid term or condition set out in the special measures SR&O.”

Another issue was whether it was open to the chief medical officer (CMO) in all the circumstances to recommend the vaccine regime with exemptions for frontline workers and whether the special measures were precautionary, proportional and reasonably required to protect public bodies.

At the trial, the government argued that the Cabinet and the minister of health approved the SR&O as they had a duty and authority to do in the public interest.

They further said that in view of the circumstances existing at the time, it was open to the CMO to make the recommendation she did as a last resort in view of the ineffectiveness of the measures adopted before then.

They argued that in the face of increasing hospitalisations and deaths among the unvaccinated, that the measures were precautionary, proportional and/or reasonably required to protect public bodies by seeking to control the spread of the COVID-19 virus and protect the safety and health of the frontline employees and officers.

The government’s lawyers asked the court to find that the measures were precautionary, proportional and reasonably required to protect public bodies.

The judge, however, noted that the law does not stipulate that the CMO make recommendations to the minister that are reasonably required in the interest of public health or that she deems reasonably required to effect that purpose.

“Her testimony is that they were,” Justice Henry said. The claimants have not taken issue per se, with her recommendations in relation to whether they were proportional and or reasonably required to protect public bodies. It is therefore not necessary to make a pronouncement and with respect thereto refrain from so doing,” she further stated.