Appeal Court’s ruling on vaccine mandate still not ready; lawyer disappointed 

Lawyer Jomo Thomas on Monday decried the delay by the Court of Appeal in handing down its decision in the COVID-19 vaccine mandate case.

“…  it’s a very sombre day in St . Vincent, certainly for me as an attorney, and certainly for the workers who are so aggrieved that the court is here again and we have no expectation that in this week there would be a decision,” he said in his “Plain Talk’ commentary on Boom FM.

“So, I just wanted to flag that, and to make that point and to let the workers know that I feel their pain, and I’m in solidarity with them, and I’m hoping that eventually, the decision would come back and that the decision would come back in their favour,” he said.  

The Court of Appeal heard arguments in the case on May 2 but has not indicated that it is ready to give its decision even as it is sitting in St. Vincent and the Grenadines (SVG) this week.

Hundreds of public sector workers, including teachers, nurses, police officers, and customs workers, were dismissed under the mandate, which the Unity Labour Party brought into effect in 2021.

The mandate demanded that workers get vaccinated against the COVID-19 virus or be deemed to have abandoned their jobs and their accumulated benefits.

However, the union representing teachers, police officers and public service workers sponsored a lawsuit that included 165 former workers as complainants. 

On March 13, 2023, Justice Esco Henry ruled in favour of the public sector workers, declaring the vaccine mandate unconstitutional, unlawful, illegal, ultra vires and disproportionate

However, the government appealed that ruling and after some delay, the Eastern Caribbean Supreme Court, in its appellate jurisdiction, heard the arguments on May 2 but is yet to hand down its ruling. 

On Monday, Thomas expressed disappointment that the Appeal Court has not indicated that it will hand down a decision this week.

He said that SVG needs a constitutional court that would hear only cases such as the one challenging the vaccine mandate.

“… a court that would deal specifically, totally and completely with judicial review constitutional matters, because these matters, the court itself tells us, are of paramount importance and should be dealt with with expedition.” 

Thomas outlined the history of the vaccine mandate case.

“The court is sitting in St. Vincent today, this week, but we got no notice that the vaccine mandate matter is listed for decision.”

He said that usually, the court would write when a decision is ready in a particular case.

“… there was case management last week and there was nothing about the vaccine mandate case,” Thomas said.

He noted that the Eastern Caribbean Supreme Court is an itinerant court that serves Grenada, St. Lucia, Dominica, Antigua and Barbuda, St. Kitts and Nevis, Anguilla, the British Virgin Islands and St. Vincent and the Grenadines.

“So, a decision can be rendered in any of those jurisdictions. The sad and unfortunate thing is that after waiting for so long, the workers in St. Vincent, the aggrieved workers, still have to wait to find out what the decision is and that’s why I started by saying we need a constitutional court.” 

Thomas noted that the justices of appeal of the ECSC deal with all of the matters that come before the court, adding, “… it’s a very busy court; very, very busy court”.

He said that whereas the United States Supreme Court may hear 15 cases a year, the ECSC, in its appellate jurisdiction, may hear 40 or 50 cases from each jurisdiction.

“I’m not here beating the court for not doing its work,” Thomas said. 

“I am just speaking for a fact that when you have aggrieved workers who are as aggrieved and who are suffering so egregiously … from November 2021 until now, it’s painful to see them having to sit and wait without a decision, particularly when they had a decision already, they had a decision from the court of first instance.”

He acknowledged the government’s right to appeal but noted the long wait for the decision. 

“…  I’m sure the government is waiting as well to see what the court would say,” he said, noting that the government has said that other capitals across the region were awaiting the decision to find out how they should respond to a public health emergency.

“And you may recall that we have said that that’s a nonsensical position because all of the governments had to deal with the same emergency, and none of them were as draconian as our government in doing what they did to the workers,” Thomas said. 

“But if we have a constitutional court, that constitutional court would hear these matters and it is my hope that they would hear them with volition and that the decisions would come back much sooner than we are seeing.”

The lawyer said a lot of workers who were dismissed under the mandate are “suffering tremendous harm as a result of the fact that since November 2021, they have not received a salary. 

“They have mortgages to pay. They have rent to pay. They have children to send to school. They have food to buy, and so on and so forth. And many of them have been unable to do that, or have been put into serious instances of compromise because of the decision of the government to fire so many of them…”

Thomas said he was confident that the Court of Appeal would also rule in favour of the workers.

“I have always said that Justice Henry’s decision is sound. It’s solid. It is in keeping with the case law. It is in keeping with the Constitution. And it is my hope that eventually, the Court of Appeal would come back with a decision which upholds Justice Henry’s decision,” he said, noting that Justice Henry had ruled against the government on 11 grounds.

“And as I have said before, I would be shocked if it is established that the workers did not have a right to be heard, or if it is said that they abandoned their jobs, or if it is said that the government’s actions were not disproportionate …” Thomas said.