Ruling on Covid-19 vaccine mandate case reserved

by Christina Smith

The Eastern Caribbean Court of Appeal reserved judgement in the COVID-19 Vaccine Mandate Case, more than a year after a ruling in favour of the public servants was handed down from the High Court stating that the government’s requirement to take the jab to keep their jobs was unconstitutional.

On Thursday May 2,2024 legal teams representing the Minister of Health and the Environment; the Public Service Commission; the Commissioner of Police; the Attorney General; and the Police Service Commission presented arguments in the appeal with the Appellate Judges saying that time is needed to consider the oral submissions.

For more than five hours legal teams representing the appellants- the Minister of Health, Wellness and the Environment and the Chief Medical Officer; and respondents – the SVG Teachers Union, the SVG Public Service Union, and the Police Welfare put forward their arguments on the Justice Esco Henry ruling of March 2023.

Hundreds of public servants who were dismissed for refusing to take the COVID-19 vaccine were vindicated when Justice Henry ruled that the mandate was “unlawful, unconstitutional, ultra vires, disproportionate and tainted by procedural impropriety”.

She also ruled that the claimants were 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.

Senior Counsel, Anthony Astaphan, in his oral submissions described the case as one of “considerable public importance”. He argued that the government’s decision to enact Statutory Rules & Order (SR&O) No. 28 of 2021, was a necessary step in order to “protect the integrity of the public service” and stem the spread of the virus.

Astaphan noted that there was no medical evidence to show that “lesser measures” would have had an impact in controlling or preventing deaths as a result of the virus.

When questioned by the Appeal Judges as to whether there was any “direct evidence” that the Chief Medical Officer recommended that unvaccinated public servants be “sacked”, Astaphan said that there was none.

In response, he said that the Minister under which the statute applies “has to be invested or to be invested with the authority” to ensure measures are put in place for compliance.

The legal team representing the dismissed workers was led by Dominican lawyer, Cara Shillingford who, in her submissions argued that the Statutory Rules & Order (SR&O) No. 28 of 2021 gave the government unprecedented power to act against citizens.

“…this was a very radical piece of legislation. It authorized any minister to do anything with no guidelines. No, no, no restrictions.”

She argued that the ruling of the previous court be upheld and if the ruling is overturned, it would allow the government to act as it desires against the interest of public servants. She also noted that a global pandemic does not give the government the right to “do away with a large section of the public service.”

Highlighting Regulation 8 of the SR&O – ‘Failure to comply with the rules’ Shillingford submitted to the court that workers did not abandon their jobs as they did turn up for work and “they were told to go home.”

“You cannot tell employees do not come to work and then say they have abandoned their jobs,” she argued.

She emphasized that the Act does not contain “logical interpretation of the word abandonment”.

Shillingford also argued that the government chose to establish “permanent” measure” to deal with a temporary problem to which the Justices questioned the lawyer as to how the government would have known that the COVID-19 pandemic was a temporary medical crisis at the time.

Shillingford also put forward that Justice Henry ruled that the legislation used to enforce the vaccine mandate was unconstitutional, procedurally improper, disproportionate and void.

The Appeal was heard before Justices Eddy Ventose, Gerhard Wallbank and Paul Webster in a virtual sitting.

There was no definitive date given by the Justices for the appeal ruling.