Use of ‘draconian’ causes Astaphan to question dissenting judgment 

The lead lawyer for the government in the “Vaccine Mandate Case” says the use of “draconian” in Justice of Appeal Gerhard Wallbank’s dissenting opinion caused him to question the jurist’s judgment.

“… I began to question the judgment when I read that,” Senior Counsel Anthony Astaphan said on WE FM on Sunday.

“And the other thing that I question, too, is the fact that he spent a considerable amount of time speaking about religious discrimination and freedom of religion, none of which was before the High Court or the Court of Appeal,” Astaphan said.

“Then he was saying, … there should be cross examination of this, or whatever the situation was. I have read the judgment and I do not agree with the judgment. I think the majority is correct,” Astaphan said. 

On Wednesday, Justices of Appeal Eddy Ventose and Paul Webster allowed the government’s appeal, while Wallbank said he would have dismissed it.

Wallbank gave a dissenting opinion in which he described as “draconian” the COVID-19 vaccine mandate that the Unity Labour Party administration implemented in late 2021, resulting in hundreds of public sector workers losing their jobs.

The SVG Teachers’ Union, Public Service Union and Police Welfare Association sponsored a lawsuit challenging the mandate and its effect.

On March 13, 2023, High Court judge Justice Esco Henry — who is now a justice of appeal — ruled in favour of the dismissed workers, finding that the mandate breached natural justice, contravened the Constitution, was unlawful, procedurally improper, and void.

However, in the 2-1 decision on Wednesday the Court of Appeal overturned Henry’s decision.

“Now the dissenting judge spoke about ‘draconian’ but the majority court indicated that that’s not a test for legislation under our constitutional regime,” Astaphan said. 

Astaphan said the test is where the actions taken are “reasonably justifiable in a democratic society, which requires the government to make a decision whether or not the private rights or the adamance of some, to refuse to take the vaccine and still go to work in medical centres, in schools, in customs and immigration and so on, ought to outweigh the public interest rights of the others, including the students, the patients, the tourist, the people that have to deal with them on the front line”. 

The lawyer said the decision was made that the public interest and the public health of the country trump any private rights that the individuals were seeking to claim. 

“Bearing in mind the majority found that the only constitutional provision they were complaining about was section six [of the Constitution of St. Vincent and the Grenadines] in relation to pensions, when there was zero evidence of loss of pension rights,” Astaphan said.

He said that in their lawsuit, the former public sector workers had raised the issue of the right to be heard.

After the government deemed the public sector workers to have abandoned their job, as defined by changes that it made to the law, the public service and police service commission wrote them letters to this effect, formalising the end of their employment status. 

“… they were given the opportunity to be heard, but they didn’t take it. So in these circumstances, we, in summary, again, we succeeded,” Astaphan said. 

He said Justice Wallbank “sought to question the evidence that was accepted … which was uncontradicted from cross examination or medical evidence. 

“And he was questioning the evidence fully aware of the fact that the evidence was not challenged either by direct contrary expert evidence,” the lawyer said on the radio show.

He noted that Justice Henry had thrown out the application by the dismissed lawyers to adduce expert evidence, saying it was not relevant. 

“So they didn’t have any expert evidence to back up what it is the judge is saying that could have been done. And in absolutely any event, there was no cross examination. So the principles of judicial interference, or non-interference was at its highest in this case.”

Astaphan said that rather than seeking to apply “the uncontradicted evidence”, Wallbank sought to question the sufficiency of the evidence.

Astaphan said this is something he took issue with “because you got the impression that he didn’t seem to appreciate the circumstances in St. Vincent and the Grenadines”. 

Astphan noted that Wallbank also contrasted the situation and responses in other Caribbean countries to the pandemic. 

“Other countries had states of emergency, they had prevented citizens from coming back. Others had lockdowns, … others had various different methods of dealing with the situation,” Astaphan said.

“But what the courts, the judgments of the respective courts say, which we submitted to the High Court and the Court of Appeal in these circumstances, you have to give, defer to the opinion of the executive and legislative branches who are better equipped to deal with these medical emergency matters. 

“And unless you can establish some fraudulent conduct or some bad faith — and there was no allegation of bad faith or fraudulent conduct in the case at all — the evidence of the chief medical officer and the ministers have to be accepted.”

Astaphan said he gave “very little weight” Wallbank’s dissenting judgment.

Of the majority judgment, he said:

“I think this judgment reflects the underlying principle of the Constitution: that fundamental rights are subject to limitations provided for the Constitution to protect the rights of others and the public interest. And I think in this case, what happened was that the public interest triumphed over the rights of those, a minority, who wanted to dictate the terms under which they were to operate during the COVID crisis.”