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By Kenton X. Chance

Lawyer Cara Shillingford-Marsh on Thursday asked the Court of Appeal to uphold the judgment in the COVID-19 vaccine mandate case in St. Vincent and the Grenadines (SVG), saying overturning it would allow the government to do as it wishes to the public service.

She further told Justices of Appeal Eddy Ventose, Gerhard Wallbank and Paul Webster that the case is about the extent to which the government can force a person to take a drug.

“Now, this case is also about establishing the limits on the state’s ability to interfere with the body of a living person, a human being; it is about human dignity,” Shillingford-Marsh told the virtual hearing of the court, which was sitting in Antigua. 

“How far can the state go in mandating or forcing a person to take a drug? Because this is what a vaccine is? A vaccine is a drug,” the lawyer said as she defended the judgment of the High Court in favour of the dismissed workers. 

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Shillingford-Marsh argued that “it is absolutely wrong for any government to force a group of persons to take a drug against his or her free will to the extent that has been done in the case at bar.”

In March 2023, High Court Judge Justice Esco Henry ruled that the Ralph Gonsalves government violated the Constitution when it deemed hundreds of workers who did not take a COVID-19 vaccine to have abandoned their jobs.

The workers were dismissed even as the law considered them to have been absent from work even if they reported for duty. The law then concluded that the workers had abandoned their jobs if they were “absent” for 10 days in a row.

The Public Service Union, the SVG Teachers’ Union and the Police Welfare Association sponsored the lawsuit brought in the names of “dismissed” public sector workers, Shanile Howe, Novita Robert, Cavet Thomas, Alfonzo Lyttle, Brenton Smith, Sylvorne Olliver, Shefflorn Ballantyne, Travis Cumberbatch and Rohan Giles.

Justice Henry held that the government’s decision to fire the unvaccinated workers breached natural justice, contravened the Constitution, was unlawful, procedurally improper and void.

The government appealed the decision and on Thursday, Anthony Astaphan argued that the government took the steps during a pandemic that was killing people in SVG.

However, Shillingford-Marsh, noted that Prime Minister Ralph Gonsalves is now offering employment on a case-by-case and contractual basis to the workers who lost their jobs under the mandate.

She said this means that the workers are no longer public servants nor do they have public service protection. 

“This cannot be permitted to stand by the courts because it makes nonsense of our Constitution and it erodes and erases a very important part of the Constitution, which is aimed at protecting the public service,” Shillingford-Marsh told the court.

The lawyer said that the Privy Council, the country’s highest court, has given guidance on the purpose of the Public Service Commission. 

“And the purpose of the Public Service Commission is to insulate public servants from political interference, meaning that the public service is supposed to be made up of independent individuals who perform their duties in the best interest of the country.”

She said public servants should not owe political allegiance to the particular person who appointed them to office. 

“It is recognised that if the public service were to be filled with political appointees, people who are simply loyal to the government that appoints them or the government who can easily get rid of them, then the country would not function properly,” Shillingford-Marsh said. 

She told the court that in such a situation, “you will not have a meritocracy; you would have a country run simply on the basis of nepotism.

“Persons would be appointed to positions, would remain in positions because of which political party they support. And it is precisely because of that, that we have commissions like the Police  Service Commission, the Public Service Commission in order to insulate public servants from political interference,” Shillingford-Marsh told the court. 

She noted that the legal challenge to the vaccine mandate law was because it dictates to the Police Service Commission and the Public Service Commission the penalties for not showing up at work.

“If it is that there was a vaccine mandate, and the individuals did not get vaccinated and showed up for work or did not show up for work, then that could have been addressed as a disciplinary issue,” the lawyer said.

She told the court that the relevant section of the Public Service Commission regulations would have come into play.

“A minister of government cannot dictate to the Police Service Commission and the Public Service Commission, what consequence there should be for the actions of a particular public officer or police officer,” Shillingford-Marsh argued. 

She told the court that the case concerns employment law issues, constitutional law, administrative law and human rights issues. 

“The respondents are 271 public and police officers, including teachers. They are not to be blamed for the COVID 19 virus; they did not create the COVID-19 virus. They are simply ordinary people who enjoyed ordinary lives prior to the impugned legislation being passed.”

She said that many of the dismissed workers dedicated years of service to SVG, some of them for over 30 years. 

Shillingford-Marsh told the court that the respondents have financial obligations, including mortgages, as well as family and medical expenses.

“Many of them were near retirement age, when they were cast out of the workplace in the most brutal method under regulation 31. That is, having been deemed to have abandoned their jobs, which has implications as it relates to pension rights, gratuity and other benefits.”

Shillingford-Marsh said that the vaccine mandate came “as a complete shock to them”.

The lawyer quoted an affidavit in which one of the workers say, “… we are now without jobs and salaries to live. 

“When we say to live, we mean inability to meet financial obligations with banks and other institutions for loans, inability to meet expenses to take care of ourselves and family.”

Cara Shillingford Marsh
Counsel Cara Shillingford-Marsh. (Photo: Nature Isle News)

She said the evidence before the court is that the public sector workers have suffered greatly as a result of the vaccine mandate law.

“And they continue to suffer because the judgment has been stayed. And since December of 2021, they have been without a salary, out of the workplace,” she said.

On the point about the vaccine being an experimental drug, Shillingford-Marsh said Chief Medical Officer (CMO) Dr. Simone Keizer-Beache has admitted to the court that at least one person is recorded to have died as a result of taking the vaccine.

The CMO said in her affidavit that of the more than 53,852 doses of vaccines administered in SVG by Nov. 26, 2021, there were 25 documented reports of adverse effects, most of which were slight to moderate. 

“There was, however, one person who died in January 2022, and who had progressive weakness which may have been due to serious adverse effects following vaccination with the COVID-19 vaccine; the patient was 55 years old and retired with a history of endocrine disorder,” the CMO said.

But Shillingford-Marsh pointed out to the appeal court that the CMO gave no evidence about measures put in place to monitor vaccinated people.

“She mentions that there were 25 documented reports. But there is no reference in this document to say whether the government of St. Vincent and the Grenadines put in place effective measures to monitor vaccinated persons and to record how many of these persons died following taking of the COVID-19 vaccine.

Shillingford-Marsh noted that the COVID-19 vaccines received emergency approval. 

“They did not go through the usual channel of authorisation.”

On the issue of whether the workers had abandoned their jobs, the lawyer noted that they turned up for work.

“And they were told to go home,” she said, adding that even when educators attempted to teach via the online platform as their vaccinated colleagues were doing, the unvaccinated ones were locked out.

“So it cannot by any stretch of the imagination,… that with an ordinary interpretation, these respondents can be said to abandon their post,” the lawyer told the court.

Shillingford-Marsh said that the relevant section of the vaccine mandate law was worded precisely as it was because the Minister of Health recognised that “ordinarily, the Public Service Commission would not have held that respondents who are prevented from going to work abandoned their posts. 

“That is not a logical interpretation of the word abandonment,” the lawyer told the court. “The respondents could not attend work because they were prevented from attending work by the SRO.”

She said it was therefore wrong for the Public Service Commission to issue them letters saying that they were deemed to have abandoned their jobs.

The court has reserved its decision in the case.

Solicitor General Karen Duncan, Cerepha Harper-Joseph and Franeek Joseph appeared for the government as did Grahame Bollers.

Jomo Thomas and Shirlan “Zita” Barnwell also represented the public servants. 

One reply on “Quashing vaccine mandate ruling permits gov’t to abuse public servants– lawyer”

  1. Take warning says:

    Ah some people constitutional right to tell lies. so na others constitutional right in deciding if they want an experimental clot jab in dem body ? ah ar yo alone ha constitutional rights ? wa ar yo be , hard core dictators? It’s my opinion dats way ar yo be.

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