The rules introduced by the Government in 2021 which made it mandatory for some public servants to take a COVID-19 jab in order to keep their jobs, are “unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety”.
This is the decision of High Court judge, Esco Henry which she delivered on Monday, March 13 via Zoom, in the matter in which nine public servants sought judicial review of the Government’s decision to fire them.
The judge said as a result of her ruling, none of the claimants, who were identified as Shanile Howe, Novita Roberts, Cavet Thomas, Alfanso Lyttle, Brenton Smith, Sylvorne Olliver, Shefflorn Ballantyne, Travis Cumberbatch and Rohan Giles, ceased to be entitled to hold the respective offices to which they were appointed.
The claimants were also entitled to their full pay and all benefits due and payable to them, inclusive of accrued pension and gratuity benefits from the respective dates on which they were deemed to have resigned.
Justice Henry found that the COVID-19 (Miscellaneous Amendments) Act, 2020, which at Section 2(2) gave the minister power to modify any existing law by order, in response to the COVID-19 pandemic, arbitrarily gave the executive “limitless legislative authority”, which she said was inconsistent with the constitutional principle of separation of powers.
The judge said that since Section 2(2) of the Miscellaneous Amendments Act was “void for unconstitutionality and violation of separation of powers”, any order made as a result of the power given by that law is “equally invalidated”.
She also deemed “illegal and disproportionate”, Rule 8(1) and (2) of the Public Health (Public Bodies Special Measures) Rules 2021 (SR&O No 28), which said that an employee who, without reasonable excuse does not take the jab must not enter the workplace and will be considered to be absent from duty without leave.
The judge also declared that the Public Service Commission, the Commissioner of Police and the Police Service Commission, by acting on the minister’s directions that the claimants had resigned their jobs, “acted in a procedurally improper manner or misdirected themselves and acted illegally”.
Justice Henry said while there is no direct evidence of direction or control from anyone, the Public Service Commission (PSC), the Police Service Commission and the Commissioner of Police “demonstrated that they did not address their minds to the reality that they were vested with exclusive authority to make rules governing appointment and termination of employment of the employees”.
She added that in making the regulations they did, the minister and the Minister of National Security had usurped the respective authority of the Public Service Commission and other agencies by purporting to introduce procedural rules, dictating circumstances in which a public officer or police officer is to be deemed to have resigned his office.
Justice Henry said by their own evidence, the Commissioner of Police and the chairman of the Public Service Commission admitted that they ceded that authority of the minister when they applied regulation 8(1) and 8(2) “without debate or challenge”.
This, she said, in her opinion, “can only be characterized as the abdication of the jurisdiction and responsibility in favour of the minister and the Minister of National Security”.
Therefore all letters issued by the Public Service Commission, the Police Service Commission, the Commissioner of Police, the SVG Community College and other line managers violated the Constitution.
The Government argued that Cabinet and the minister approved the special measures as far as they had a duty and authority to do in the public interest.
They contended that in view of the circumstances, existing at the time, it was open to the Chief Medical Officer to make the recommendation she did as a last resort, in view of the ineffectiveness of the measures adopted by Government before then, and the increasing hospitalizations and deaths among the unvaccinated.
The Government also argued that the measures were proportional and were reasonably required to protect the public bodies by seeking to control the spread of the virus and protect the safety and health of the frontline employees and officers.
The judge said the Act does not stipulate that the Chief Medical Officer (CMO) make recommendations to the minister that are “reasonably required in the interest of public health or that she deems reasonably required to effect that purpose”.
The judge said the claimants did not take issue with the recommendations of the CMO in and of themselves in relation to whether they were proportional and or reasonably required to protect public bodies. She therefore did not make a pronouncement in relation to that point.
She said to the extent that any of the laws violate the Constitution, or are otherwise unlawful, they cannot form the basis of an enforceable contract of employment, because it is a trite principle of law, that “an illegality in a contract is not enforceable in a court of law”.
The claimants were therefore not obliged to comply with any unlawful or invalid term or condition set out in the Special Measures SR&O.
In addition to full pay, all benefits due and payable to them, the Government is required to pay the claimants damages for constitutional breaches “inclusive of an additional award to reflect the seriousness of the breaches and to deter any recurrence”, with interest at the statutory rate of 6 per cent per annum.
The claimants are required to file and serve the application for assessment of damages on or before June 14, 2023.
The Government was also ordered to pay the claimants’ costs. The claimants are required to file the application for assessment of costs on or before April 28, 2023.
Attorney Cara Shillingford-Marsh, Jomo S Thomas and Shirlan M Barnwell appeared for the claimants, while Anthony Astaphan SC, Karen Duncan, Cerepha Harper-Joseph and Grahame Bollers represented the defendants.
The defendants are the Minister of Health, Wellness and the Environment; the Public Service Commission; The Commissioner of Police; The Police Service Commission; and The Attorney General.
The Government has signalled its intention to appeal the decision and apply for a stay of execution of the judgement.