The ball is now rolling as trade unions in St Vincent and the Grenadines (SVG) take the first step to test the government’s COVID-19 vaccine mandate in court.
The senior lawyer leading the firm representing two of the unions involved, the St Vincent and the Grenadines Teachers’ Union (SVGTU), and the Public Service Union (PSU) said at a press conference this week that they have advised their clients as to their chances with this challenge.
“We remain confident that we have an arguable case, we have a good case, we have a winnable case and we are hoping to get past the first hurdle very quickly – the court will grant us leave – and that we will go through a substantive judicial review/constitutional issues in this case,” lawyer, Jomo Thomas said in response to questions from reporters on Monday, December 20.
“We are indeed at a very important juncture in the history of St Vincent and the Grenadines,” Thomas said when he began his initial presentation, echoing and agreeing with the position of SVGTU president, Oswald Robinson who spoke briefly before him.
Thomas explained that they had previously been mandated by the unions to look into the law of SVG and examine the ways in which a claim can be filed to “protect” the union workers and “by extension the rights and freedoms of the people of St Vincent and the Grenadines.”
While Thomas and counsel Shirlan ‘Zita’ Barnwell represent the SVGTU and PSU, counsel Israel Bruce represents the Police Welfare Association (PWA), which is also involved in the claim.
Thomas said, “Today we filed an application for leave to apply for judicial review of the actions which were taken by certain state authorities.”
There are a total of nine claimants attached to the application, which is brought against the Minister of Health, Wellness and the Environment, St Clair ‘Jimmy’ Prince; the Public Service Commission; the Commissioner of Police of St Vincent and the Grenadines, Colin John; and the Attorney General, Jaundy Martin.
Thomas said that they are seeking a review of the decision to make rules under regulation 5(1) 8(1) of Statutory Rules and Orders number 28 of 2021 Public Health (Public Body special measures) rules 2021.
These rules were published in the Government Gazette on October 19. Rule 5(1) stipulates that every employee specified in the schedule included must be vaccinated against the Coronavirus-disease 2019.
Employees included in the schedule are: healthcare employees; permanent secretaries and heads of departments; teachers appointed to public educational institutions, assisted private schools or public schools; ancillary staff employed within public educational institutions or public schools; employees of the SVG Community College; the Royal SVG Police Force; prison staff within the meaning of the Prisons Act; public officers within the Passport and Immigration services department, customs and excise department, House of Assembly and Environmental Health division of the Public Health Department; and those employed at the Port Authority, and airports/seaports.
Regulation 8(1) outlines that any employee who fails to comply with rule 5 and does not have a reasonable excuse, must not enter the workplace and is to be treated as being absent from duty without leave.
Thomas further outlined that they are also looking to review the decision taken by state authorities “to terminate the employment of the fourth, fifth, sixth, seventh, eight and ninth applicants by way of letters, which they received over a certain period.”
They will also be seeking for the court to make a declaration that rules 5(1), 8(1) and 8(2) “of the said SR&O are unlawful on accounts of being ultra vires, disproportionate, unreasonable, and irrational.” Therefore, to quash the decision of the Minister of Health to make rules contained under regulations 5 (1) 8 (1) and 8 (2) of the said SR&O.
Additionally, a fourth declaration is being sought that the decision of the second respondent to terminate the appointment of the fourth, fifth, sixth, seventh, eight and ninth applicants without an opportunity for a hearing is a breach of the principle of natural justice. Therefore, to quash the decision to consider them resigned.
These and any further relief that the court deems fit.
The counsel emphasized that the application is twofold, namely, “that while we are applying for judicial review, we are also alerting the court to the fact that we [are] bringing a constitutional motion which says that all the actions which the government has taken, including the declaration of the Public Health Emergency, is unconstitutional, illegal and void because the government did not follow the proper procedure in keeping with the declaration of an emergency.”
Under section 17 of the Constitution of SVG “it lays out a whole series of procedural actions which must take place and we will proceed to allege that this Government did not follow those and as a consequence it engaged in a fundamental breach of the Constitution of St Vincent and the Grenadines and therefore everything that it has done since it has begun doing these things – and the most egregious acts to fire people and to force them to take vaccines – are in fact unconstitutional and void,” Thomas argued.
Counsel, Barnwell also emphasized for public clarification that the application has two aspects, “One is judicial review which is asking the court for permission to bring that claim to review the decisions counsel Thomas mentioned, and the other aspect of it is that we have a constitutional motion that is joined with it. And we do that in a way so that we do not abuse the court’s time or the court’s process.”
During his contribution, Bruce noted that, “A number of police officers who served this country very well, who provided security for the very ministers of government, who provide security for your brothers and sisters, your mothers, your uncles, your aunts and your grandma – a number of them are now at home because they choose to exercise the right of not subjecting their bodies to what was being dubbed a vaccine.”
He said one of the persons who is front and centre to what will take place with the court is Station Sergeant, Brenton Smith. Smith did not take a COVID-19 vaccine and as such has had to leave his position as a police officer after 27 years.
Bruce explained that there are two sets of officers distinguished in this claim. “There are those who have attained the rank of station sergeant and above who are governed by the Public Service Commission in terms of their management; and those below the rank of station sergeant, that is sergeant of police and below down to constables, are governed and managed by the Police Service Commission.”
He also stated during his presentation: “I know that there are some who will say they had the option of taking the vaccine but they also have their freedom of conscience and we are saying that the process and the procedure used to arrive at these decisions which flow from those processes or procedures, that they were improper…”
President of the PSU, Elroy Boucher stated: “I am confident that having heard the legal explanations that we will prevail in court but with this confidence I’m also reminded from the bible that the battle is not yours, that it is God’s.”
He issued a call to the Christian Community notiing that he believes in the power of prayer.
“…I want to request that even during this period that we’re celebrating the birth of Christ that we remember and we bring them up in our prayers, our lawyers, that God may touch their intellect so that when they deliberate on these matters in the court the best will come out, and the judges who are going to preside – that they will judge justly,” Boucher appealed.
The Rules contained in the SR&O gazetted on October 19 took effect 30 days from the date of publication, and there was a further 10 day grace period during which affected state employees had to stay off their respective work compounds until they received at least one dose of a COVID-19 vaccine.
The unions have staged protests against the government’s vaccine policy but did not succeed in having the measures overturned; now they are taking the matter to the law courts.