Guyana’s COVID-19 measures based on int’l best practice – AG tells Cabinet

− justified under laws & circumstances

The myriad of COVID-19 measures that the People’s Progressive Party (PPP) government has implemented over the past few months, are completely justifiable under the existing laws of Guyana and the exigent circumstances.
This is according to the advice that Attorney General and Senior Counsel Anil Nandlall recently presented to the cabinet. He contended in the cabinet document, which was seen by this publication, that for one the measures were made under the Public Health Ordinance, Chapter 1:45.

Nandlall noted that while workers and their unions have contended that the COVID measures violate a number of laws and the Memorandum of Agreement (MOA) on avoiding and settling disputes between the Public Service Ministry and the Guyana Public Service Union (GPSU), nothing could be further from the truth.
“Each of the fundamental rights and freedoms asserted by the workers and their Unions as being trampled upon by the Covid -19 Measures are subject to a list of limitations, including measures taken that are reasonably required in the interest of public health,” Nandlall said in the document.
“So, for example, Article 147 of the Constitution which guarantees the right of freedom of assembly, association and freedom to demonstrate peacefully, as well as, guaranteeing the freedom to strike and the right to enter into collective agreements, is subject to a number of limitations, restrictions or proviso.”
According to Nandlall, there is no legal basis to say that the COVID-19 measures are “unconstitutional” and referred to a previous case, Gobin and another v the Attorney General of Guyana and Others, in which Guyana’s COVID-19 measures were examined by the High Court and found to be “proper, lawful and constitutional”.
He also referred to the recent case brought by the GPSU, the Guyana Trade Union Congress (GTUC) and the Guyana Teachers Union (GTU) against the government of Guyana. While the case has not been fully heard yet, both injunctions that were sought against the state were dismissed after detailed legal arguments.
There are further examples overseas, such as the decision of the European Court on Human Rights, where Sir Dennis Byron, former President of the Caribbean Court of Justice (CCJ) and Professor Rose-Marie Belle issued a joint legal opinion to the Eastern Caribbean governments that the COVID-19 measures do not violate constitutional rights.
“Similarly, on the 2nd day of August, 2021, The United States Court of Appeal, dismissed an application for an injunction, pending the hearing of an appeal against the decision of a Judge in Indiana, who ruled that Covid-19 Measures which state that all students at the Indiana University must be vaccinated Similarly, on the 2nd day of August, 2021, The United States Court of Appeal, dismissed an application for an injunction, pending the hearing of an appeal against the decision of a Judge in Indiana, who ruled that Covid-19 Measures which state that all students at the Indiana University must be vaccinated against Covid-19 unless they are exempt for religious or other reasons, do not violate the due process laws of the Constitution of the United States,” Nandlall stated.
And while Section 47 (3) of the Occupational Safety and Health Act provides for employers to pay for workers to participate in prescribed “medical surveillance programmes” or “medical examination”, the COVID-19 pandemic cannot be considered as such. Moreover, the COVID-19 measures are now law and enforcing it cannot constitute a breach of another law.
Last month High Court Judge Fidela Corbin-Lincoln denied a request by the three public service unions to bar the COVID-19 vaccination and testing policy instituted by the Government in response to the pandemic.
The Unions had asked the court to grant an interim injunction preventing the State from implementing the requirement that public sector workers show proof of vaccination against COVID-19 or produce a negative PCR test result at their own expense.
The Unions also sought an interim injunction requiring the State to bear the cost for regular testing for employees of the State until the determination of the substantive matter – an application challenging the constitutionality of COVID-19 Measures published on March 16, 2020.
The Unions instituted legal action against the State after unvaccinated workers were denied access to their place of employment. The Public Service Ministry has also reminded that all public servants who do not report for duty because of the COVID-19 measures will not be paid.