Considerable merit in an appeal of the judgement – Senior Counsel
Anthony Astaphan SC (Internet photo)
March 14, 2023

Considerable merit in an appeal of the judgement – Senior Counsel

A notice of appeal and an application for a stay of execution of the judgment in the Covid-19 Vaccine Mandate case which the Government lost will be filed by Wednesday, March 15.

Senior Counsel Anthony Astaphan, part of the legal team representing the Government, said in a statement released on March 13 that the team has advised the Government that there is considerable merit in an appeal.

“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.”

The other members of the legal team representing the government’s side were Karen Duncan, Cerepha Harper-Joseph and Grahame Bollers.

Astaphan said while they 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.

“We intend, by Wednesday at the latest, to file a notice of appeal and an application for a stay of execution of the judgment so that we can proceed with an appeal as soon as possible.”

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

“Decisions were made to protect lives, the health of public servants, and indeed the general health of the public in the midst of a COVID crisis….Ravaging the entire world, with considerable loss of life, infections, long term COVID and a whole variety of other matters including economic and financial.”

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.

While delivering her judgement, Justice Henry said the Claimants did not take issue with the recommendations of the CMO, in relation to whether they were proportional and or reasonably required to protect public bodies.  The judge therefore said it was not necessary for her to make a pronouncement on the recommendations.

Astaphan said the matter at hand is not the “usual allegation” of a breach of the Constitution of the law, “but one that arose and will arise again within the context of a public health crisis.”

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 of appeal as of right to appeal the matter to the court of appeal.”

Prime Minister Dr Ralph Gonsalves, in a call to the Shake Up programme on We FM on Monday, 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.”

Lawyer for the Claimants Jomo Thomas has expressed confidence that the judge’s ruling will be upheld on appeal.