Judicial Review and the Vaccine Mandate Case

by R. T. Luke V. Browne
lukebrowne@yahoo.com

Introduction

I would like to make some comments on what can be considered to be the legal issue of the day – the judgment that was handed down by High Court Justice Esco Henry on 13th March 2023 in what is being called the vaccine mandate case. I speak as a former Minister of Health, Wellness and the Environment, a member and supporter of the ULP, a former public servant, a lawyer and a citizen of St. Vincent and the Grenadines. If I still held the specified ministerial portfolio, I would have been one of the defendants in the case. I also speak as a person who on 4th April 2022 expressed the view that my government would come around to the position of restoring the jobs of the persons who were considered to have abandoned their posts for non-compliance with the vaccine mandate. I made this statement long before that view became the mainstream position of the government. These were my precise words in a facebook post of that date:
Preliminary Matters

I would first of all like to clear away the idea that the decision to apply for a stay and to appeal the judgment amounts to an attempt to brow-beat public servants into submission. I do not believe that this statement is supported by the facts. I saw an NDP flyer for an event which had the following words written on it: “to appeal is to punish workers.” If ever there was a case of mischaracterisation for dramatic political effect, this would be it. I think that the government has a legitimate interest in seeking legal clarity on this matter in light of the importance of the case. The implications are too weighty and significant with long term consequences to be left up to the determination of a single High Court judge.

Moreover, we cannot reasonably say that to appeal is to punish workers because the government a long time ago opened the door for workers to return to their jobs with pension benefits in tact.

I would not be surprised if some people consider the judgment to be a pyrrhic victory in the sense that it has not changed the status quo and does not amount to a final resolution of the matter. Essentially, the decision has no practical moment.

By the way, I heard Jomo Thomas describe the delivery of the judgment as the legal equivalent of a slam dunk in the game of basketball. I am surprised that he would have downplayed the significance of the judgment by describing it in those demeaning terms – a slam dunk is just a 2-point play in a long running basket ball game that has very little bearing on the final outcome of a game. I thought Jomo would have seen the judgment in the same light as perhaps victory in the NBA finals or at least in one of the games in the finals.

Background

I would now like to give you some background on Judicial Review. This is the process by which a person can ask the court to review the decision of a public officer to see if it is lawful or unlawful. If the decision was unlawful, the court could overturn or reverse it and wipe out its consequences. The application for judicial review can be based on the following grounds:

i) Illegality
ii) Unreasonableness; and
iii) Procedural
Impropriety

These grounds overlap.

If a police officer arrests someone for parking in a no-parking zone when the police does not by legislation have a power of arrest in that scenario, this is a case of Illegality. The decision can be declared unlawful and there are other possible remedies. We can also say that the police officer acted ultra vires meaning that he or she exceeded his or her legal powers.

I would also like to give you the benefit of a less straightforward scenario. For example, a Minister may by law have the right to set court fees. However, if the Minister sets the court fees so high that people cannot afford to bring a case in court, then such a decision interferes with an individual’s fundamental right about access to justice. If the right to access justice is protected by the Constitution, the court can also say that the decision is unconstitutional.

The court could declare a decision unlawful on grounds of Unreasonableness if it defies logic or accepted moral standards by virtue of irrationality (failure in reasoning or in the weighing up of relevant factors), has a disproportionate effect on the claimant and his livelihood (oppressive) or violates constitutional principles/principles of the rule of law.

The court could declare a decision to be unlawful on the grounds of Procedural Impropriety if the decision maker failed to follow a prescribed statutory procedure or to act fairly i.e. adhere to the principles of what is called Natural Justice (by for example ensuring that persons affected by a decision have the opportunity for a hearing and are protected against biased decisions). This is especially important when the potential harm to an individual’s interest is serious or significant.

Conclusion

I give you this background to help you navigate the terms that are being bandied about these days. I would continue my treatment of this subject next week.