Vaccine mandate ‘not your usual constitutional case,’ Astaphan tells Appeal Court 

By Kenton X. Chance 

The Court of Appeal, on Thursday, reserved its decision in its review of the High Court judgment that the Government of St. Vincent and the Grenadines (SVG) acted illegally in 2021 when it dismissed hundreds of public sector workers who did not obey its order to take COVID-19 vaccine. 

“… this appeal is a matter of considerable public importance. It is not your usual constitutional case,” Senior Counsel Anthony Astaphan told the panel made up of Justices of Appeal Eddy Ventose, Gerhard Wallbank and Paul Webster, during a virtual sitting of the court in Antigua.

The government argued that High Court Justice Esco Henry erred when she ruled in March 2023 that the government’s decision to fire the unvaccinated workers breached natural justice, contravened the Constitution and was unlawful, procedurally improper and void.

Astaphan noted that the lawsuit arose “from the throes of a pandemic caused by COVID-19” that was hospitalising and killing the people of SVG “especially, and perhaps mostly, those who were unvaccinated”.

In response to the pandemic, the government passed Statutory Rule & Order (SR&O) No. 28 of 2021, a law approved by the Cabinet.

Regulation 8(1) of the SR&O, 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.

The Public Service Union, SVG Teachers’ Union and the Police Welfare Association have sponsored the lawsuit, which was 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.

The appellants are the Minister of Health and the Environment, the Public Service Commission, the Commissioner of Police, the Attorney General and the Police Service Commission.

Astaphan noted that the submission by the public servants’ legal team that Regulation 8 was disproportionate and, therefore unconstitutional because the minister of health did not consider any less intrusive measures. 

He, however, said there was no medical evidence despite Justice Henry’s findings, that lesser measures would have had an impact in controlling the spread of COVID-19 and the deaths that resulted from the illness.

“In fact, the overwhelming evidence of the Chief Medical Officer (Dr. Simone Keizer-Beache) was that the prior measures put in place including masking, social distancing, testing, work from home, etc. were ineffective in seeking to stop the spread, and infections and deaths in St. Vincent and the Grenadines,” Astaphan told the court. 

He said that based on Keizer-Beache’s analysis of the situation, the mandate was a matter of the last resort, “which, as far as she was concerned, was in the public interest”. 

The lawyer noted that Justice Henry’s judgement shows that the public servants did not challenge the proportionality of the vaccine mandate, but the government’s imposition of regulation 8.

Referring to a case from New Zealand, Astaphan said the only possible way Henry could have made a finding of disproportionality about the mandate was if there was medical evidence to show that the lesser measures would have been as effective in curbing the spread and preventing deaths from COVID-19 in SVG.

He said that Keizer-Beache made it clear that based on high levels of vaccine hesitancy and the low rate of vaccination in the public service, the public service and the public faced “a very serious threat from COVID and therefore, it was her opinion that the public officers should not be allowed in the workplace unless they were vaccinated or complied with the provisions of the exemption clauses under the special measures”.

The lawyer argued that Justice Henry made findings that were “wholly unsupported by evidence on the issue of proportionality”. 

He said that the public servants were arguing before the court that the objectives of the vaccine mandate would have been achieved by alternative modes of work for public officers such as working online. 

“That was tried and failed,” Astaphan said.

He said giving unvaccinated people the option of taking regular tests and wearing masks, as the public servants were claiming, was done but had also “failed to stop the spread”.

Astaphan said there was no submission, on evidence, to suggest that these measures were successful before the mandate, even though the CMO said they were not.

He said that Justice Henry accepted the evidence of the CMO that the CMO’s measures were reasonably required in the public interest.

The lawyer asked the justices of appeal to apply the findings of the courts in South Africa and Hong Kong in similar cases to the extant case. 

“there was a clear medical emergency … a worldwide declaration of a pandemic and public health emergency by the WHO.  The minister, on the recommendation of the CMO, declared a public health emergency in St. Vincent. So, at the time, these laws were passed to arm the executive with the power to respond rapidly and effectively to the ever-changing dangers of the COVID vaccine,” Astaphan said.

He argued that the government operated under a public health emergency. 

“And I don’t think we can differentiate between emergencies, especially one like this that was preventing normal life, to continue, to threaten the lives of children who could not be vaccinated; it hospitalised several persons, killed numerous … persons who were unvaccinated.”

The lawyer said that as a matter of “policy and common sense”, the Parliament would not be “able to micromanage the ever-changing ebb and tide of the virus and the dangers it poses”.

He said that would have required “consistently” some delegation to Cabinet, “whether through the negative procedure rule or by resolutions to be submitted to Parliament later, to respond to these threats to life and to health. 

“As I said in our opening, this is not a normal case of delegation of power of taxation, or the control of customs … or something else. This is a response put in place to a virus and health emergency that was killing people,” Astaphan said. 

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

Cara Shillingford-Marsh, Jomo Thomas and Shirlan “Zita” Barnwell are representing the public servants.