By *Jomo Sanga Thomas
(“Plain Talk” March 17, 2023)
The decision by High Court judge Esco Henry in the vaccine mandate case is a significant victory for the people and democracy in SVG. History will record when all else failed, it was the leadership of the Teachers’ and Public Service Unions and the erudite, lion-hearted judges of the Eastern Caribbean Supreme Court who stood between the anti-people, autocratic and evil policies of the Ralph Gonsalves regime and SVG’s downward spiral into a hellish reality.
In the decision delivered last Monday, Justice Henry ruled that the government’s mandate was unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety.
1. Quashed the decision to deem the claimants, who are public officers, to have resigned from their offices.
2. Quashed the decision of the Commissioner of Police to deem police officers below the rank of Sergeant to have resigned their offices
3. Quashed the decision of the Police Service Commission (PSU) to deem Brenton Smith to have resigned his office.
Justice Henry declared:
4. None of the claimants ceased to be entitled to hold the respective offices of public officers, or police officers within the various ministries.
5.All of the claimants are entitled to their full pay and all benefits due and payable to them, inclusive of pension and gratuity benefits and rights.
6.The Crown is liable to each claimant for damages for the constitutional breaches, inclusive of an additional award to reflect the seriousness of the breaches and deter any recurrence.
Within seconds of Justice Henry’s announcement, the government announced it would appeal the decision. This decision will be virtually impossible to overturn. In the context of this case, no appellate court will reverse a judge who found that workers did not abandon their jobs. None will say that the draconic policies of this government were proportionate to the threat posed by COVID-19. It’s improbable the Appeal Court would uphold the slavish surrender of authority by the Public Service and Police Service Commission to the dictates of the executive.
Therefore, every effort should be made to stay Gonsalves’ vindictive and evil hand. Religious leaders, business executives, newspaper editors, columnists, opinion makers, radio personalities, change agents, and progressives should tell this vainglorious egomaniac, enough is enough.
The government’s claim that it would be reckless not to appeal the decision is grotesque and cruel. There is no public interest in an appeal. The people of our country waited with bated breath for a decision on this matter. They exhaled. It’s time to leave this dark night and enter a new dawn.
Contrary to Gonsalves and his clansmen, this case has zero regional implications. Therefore, pursuing this appeal would constitute a reckless and wasteful misuse of the slender resources of the country.
Our leaders misconstrued the case from the very beginning. The vaccine mandate case was never about whether the government can make rules to combat an emergency. The responsibility and duty to so act are in the Constitution. The simple requirement of the law is for government leaders to act legally, constitutionally, proportionately and properly. Ours is not a country of dictators, at least not yet. It remains a country of laws.
This was made clear by Justice Henry’s decision. She made no declaration that:
a. Section 43(b) of the Public Health Act, insofar as it grants powers to the minister to declare a public health emergency, is inconsistent with section 17 of the Constitution or is null and void.
b. SR&O No. 38 of 2020, cited as the Public Health Emergency (Declaration) Notice 2020, is inconsistent with section 17 of the Constitution or is null and void.
c. SR&O 28 of 2021, insofar as it purports to make the taking of COVID-19 mandatory on pain of suffering the loss of livelihood, loss of pension rights and being exposed to criminal sanctions amount to inhumane and degrading treatment of the claimants, is contrary to section 5 of the constitution or is void.
d. The COVID-19 (Miscellaneous Amendments) Act 2020, insofar as it fails to define “the minister”, is ambiguous, vague, contravenes the constitutional rule of law doctrine or is void.
Therefore, prolonging this agony through an appeal will be cruel and inhumane. Those forced to take the vaccines and now are suffering from adverse effects will remain unsettled. The unions are already short on resources and will again have to mobilise funds to defend against the appeal. The country remains unhinged.
This country has gone through a lot in the last two years: the COVID plandemic, the dengue epidemic that took the lives of 13 children, the devastation and dislocation caused by the eruption of La Soufriere and worse of all, the COVID vaccine policies which wrecked lives, caused death and created a continuing mental health crisis because of Gonsalves’ economic assassination plan that forced citizens to take an experimental vaccine whose efficacy and safety is increasingly thrown into doubt.
An appeal will give cover to the government to maintain a public health emergency for two-plus years without going back to Parliament for a renewed mandate. While emergency orders are being rolled back worldwide, this government intends to affect and disrupt people’s lives and livelihoods. It wants to keep citizens off balance, in a kind of emotional limbo.
There is a broader take on this government’s oppressive actions against the people. Having been in power for so long, Gonsalves now considers himself untouchable. The people must commit to breaking this spell whenever the next elections are called. They must do so not necessarily in the belief that the opposition NDP can or will solve our problems. A vote against Gonsalves will constitute a reclaiming of our democratic right to choose and a denunciation of his arrogant and autocratic rule. To vote out his Clansmen will demonstrate disdain for their connivance and malfeasance. How do young and trained members of his cabinet sit silently as he wields a wrecking ball through their ambition and future?
The nation’s central task is to ensure that Gonsalves respects the people’s will and drop his intention to appeal the court’s decision.
*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former senator and Speaker of the House of Assembly in St. Vincent and the Grenadines.
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].