Higher  Court opinion needed to address crisis  situations – Astaphan
Anthony Astaphan SC (Internet photo)
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March 17, 2023

Higher Court opinion needed to address crisis situations – Astaphan

The opinion of a higher court is required in the ‘Vaccine Mandate’ case so that governments would know what should be done when they are confronted by crisis situations like the COVID-19 pandemic.

This is the view of Senior Counsel Anthony Astaphan, who, in a statement issued earlier this week said the lawyers for the defendants have advised the Government that there is considerable merit in an appeal of the decision in the COVID-19 Vaccine Mandate case which was handed down on March 13.

“And we have also advised the government that in the public interest an appeal is required for the very simple reason that the government needs to know and to have the guidance of a higher court about what needs to be done or should be done or ought not to be done when the Executive branch of the government and the Cabinet are confronted with a crisis like an infectious disease that kills and hospitalizes its citizens to say the least.”

Justice Esco Henry ruled on March 13 that government’s vaccine mandate is “unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety”.

Jomo Thomas, part of the claimants’ legal team, however, says he is confident that the ruling delivered by Justice Henry will be upheld on appeal.

Thomas, in an interview with SEARCHLIGHT said he believes the government has a “major challenge” on their hands in trying to have the ruling overturned, noting that they would first need to have Justice Henry’s ruling put on hold.

“What they need to do firstly is to get over the hurdle of having the decision stayed because they can’t just appeal, they have to have the decision stayed. If the decision is not stayed then the government is required in law to carry out all of the orders of the court.”

“… it was such a major victory for the workers, it is unlikely that any court of law would overturn … it is highly unlikely. I don’t know what they are going to appeal, we said that we were strong in the law. We were vindicated today [March 13] by Justice Henry and her decision.”

Thomas said if it so happens that the government’s side is granted a stay in the ruling, he is confident that the judgment will be upheld in the Appellate court.

The notice of appeal and application for stay of execution were filed yesterday, March 16 by lawyers for the defendants.

The application for stay of execution had however not been heard up to press time.

Astaphan said while the defendants respect the right of the High Court to deliver a judgement, they also believe they have a duty, if not an obligation to review the reasons advanced by the judge and advise the government if there is merit in an appeal or whether or not the public interest demands there be an appeal.

“…because of the critical Constitutional issues and issues of law that arose for determination and that will inevitably rise again, whenever one of these countries including St Vincent and the Grenadines is confronted by another crisis such as the Covid-19 crisis that we experienced for the last two or three years.”

He said they have advised the government that an appeal is merited and the Prime Minister has accepted their advice and instructed them to proceed.

The senior counsel advised that the public ought not to lose sight of the context of the case.

He reminded that the case arose because the government of St Vincent and the Grenadines took measures to protect the health of public servants based on the medical advice of the Chief Medical Officer (CMO), which was not contradicted during the trial.

He said the government, the people of St Vincent and the Grenadines and the Caribbean need to know if the judge was correct.

“ We believe that she was not, and we have advised the government to exercise its constitutional right to appeal the matter to the court of appeal.”

Prime Minister Dr Ralph Gonsalves, shortly after the judgement was delivered, said he considered that the ruling in the case too important “for us to just rely on the judgment of one judge in the first instance”, adding “ let’s hear what the Court of Appeal thinks”.

He defended the government’s decision to enact the mandate and he also said the defence team has advised him of a win in the Court of Appeal.

“I’ve been advised by Senior Counsel on this matter, and I’ve accepted the advice that there is a likelihood that this decision will be overturned in the Court of Appeal.”