High Court denies Unions’ bid to block Govt’s COVID-19 policy

…State has a duty to take measures to curtail spread of disease – Justice Corbin-Lincoln

High Court Judge Fidela Corbin-Lincoln on Friday denied a request by three of Guyana’s major public service unions to bar the COVID-19 vaccination and testing policy instituted by the Government in response to the pandemic.
The Guyana Public Service Union (GPSU), the Guyana Teachers’ Union (GTU), and the Guyana Trades Union Congress (GTUC) – which represents thousands of public servants – were seeking several injunctive reliefs against the State of Guyana.
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 contended that former President David Granger exceeded his authority when he issued those COVID-19 measures purportedly in accordance with Section 21 of the Public Health Ordinance. They contended that the President’s act amounts to an unconstitutional delegation of his powers and an infringement of Article 111 of the Constitution of Guyana.
Ultimately, the Unions sought an order of certiorari quashing the COVID-19 Emergency Measures dated March 16, 2020, as it relies on an unconstitutional grant of authority to Granger which, they argued, renders it invalid and void of effect.
While she held that the court has the power to grant interlocutory injunctions against the State, the Judge said that in the case at bar, the Unions failed to provide strong prima facie evidence which is required from a party seeking an injunction to restrain the enforcement of a law.

Serious issues
According to her, the substantive matter raises serious issues to be tried. Among them is whether Granger acted outside of the powers conferred on him under Section 21 of the Public Health Ordinance under which he purportedly acted when he issued the measures.

She said there is also the question of whether COVID-19 is a disease specified under Section 21 of the Public Health Ordinance of which the Board of Health and by extension Granger, using delegated powers, could exercise the powers conferred by that section.
The Judge also said that there is also the issue of whether Granger, using that power, could further delegate it. The former Head of State, in issuing the measures, declared that COVID-19 is an infection, and directed the then Health Minister, Volda Lawrence to take all the necessary measures to control the spread of the disease.

Bring confusion
Pursuant to the presidential directive, the Health Minister has issued numerous COVID-19 Measures, the most recent being COVID-19 Emergency Measures (No 22) which require persons entering a public building to show proof of vaccination or a recent negative PCR test result.
The Emergency Measures specify that a public building refers to a building to which the public has lawful access and includes both privately and publicly-owned buildings. The Emergency Measures that were issued on September 4, remain in effect until September 30.
Justice Corbin-Lincoln reasoned that in considering the grant of the injunctions, the court must consider all the circumstances, including the interest of the public.
“To make an interim order directing the State to pay for PCR test pending the hearing and determination of this matter will do no more than bring confusion to what the [Unions] already contend is already a confusing situation,” the Justice noted.

Stop spread of virus
The High Court Judge pointed out that the world has been severely impacted by the effects of the pandemic. This, she added, has led governments throughout the world to employ various measures to contain and reduce the spread of the virus. These measures include mandatory lockdowns, quarantine, curfews, and mask-wearing, she further added.
She said, “The introduction of vaccines is the most recent effort to address the pandemic. The court is not deaf to the debate raging around the world [concerning] the efficacy or effectiveness of the vaccines, the legality of mandatory vaccination requirements, and whether the implementation of mandatory vaccination is a reasonable infringement on constitutional rights.”
But these matters, she said, are still to be tested in the court. Justice Corbin-Lincoln further related those reports suggest that vaccine hesitancy is a live issue in Guyana for various reasons.
Reminding that the Government has already implemented a vaccine and PCR test requirement for entry into public buildings, Justice Corbin held, “the State has a duty to take measures to [stop] the spread of the disease.”
While the Unions have given evidence of the challenges suffered as a result of the implementation of the policy, the Judge found that there was no evidence of irreparable harm being suffered to warrant the grant of the interim injunctions.
“It would not be in the stability of the public to grant an interim injunction restraining the Government from implementing any future or even the existing vaccination measures when it is yet to determine whether or not [Granger] acted ultra vires,” Justice Corbin-Lincoln underscored.
Attorney General Anil Nandlall, SC, is listed as the lone respondent in the case. The Unions are being represented by lawyers Dane Victor Elliot-Hamilton and Darren Wade

Restricts freedom
General Secretary of the GTU, Coretta McDonald; General Secretary of the GTUC, Lincoln Lewis; and Vice President of the GPSU, Dawn Gardener are the other applicants.
Along with Georgetown Mayor, Ubraj Narine, they have filed affidavits in support of the substantive matter which is expected to be heard sometime soon.
Lewis, in an affidavit, deposed that the Government’s COVID-19 measures impede his access to Government service that he may require from time to time.
According to him, the vaccination and testing mandate, “directly restricts the freedom of movement throughout the country.”
Meanwhile, Gardener deposed that there has been significant confusion in the implementation of the measures, and unless the State is restrained, thousands of workers will be affected.
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.
The Health Minister, Dr Frank Anthony, on the other hand, has defended the updated vaccination requirements as necessary to ensure public safety.