Legal challenge to COVID measures: High Court has no jurisdiction to grant injunction against State – AG

Guyana’s Attorney General, Senior Counsel Anil Nandlall, has contended by way of legal submissions in the case brought against the Government’s COVID-19 measures that the court has no jurisdiction to grant the injunctions being sought against the state.

This is contained in Nandlall’s Notice of Application which was submitted on his behalf on Wednesday. Nandlall was named as the lone respondent in the challenge to the COVID-19 measures, wherein a number of unions are seeking an injunction against the Government implementing measures to keep the population safe, such as mandating unvaccinated persons furnish negative PCR tests.
In addition to pointing out that the court has no jurisdiction to grant an injunction, and that the injunction being sought has been overtaken by the facts, the AG’s submissions stated that “the granting of an interim declaration in this case would violate the presumption of regularity, presumption of constitutionality, and amount to a pre-determination of the substantive issues in the Fixed Date Application.”
The AG addressed the filing of the submissions in an ‘Issues in the News’ programme hosted on Wednesday. According to Nandlall, the applicants have in fact filed an incorrect case, since the State Liability and Proceedings Act stipulates that a coercive order cannot be granted against the state.

“Today we filed submissions in the COVID-19 matter. You will recall that Coretta McDonald, (Dawn) Gardner, Lincoln Lewis, the Trade Union Congress, the Teachers Union and Public Service Union have all joined hands, and they want to stop the COVID measures. In other words, they want the state to do nothing in face of a global pandemic. So that all of us, I suppose, can die like sitting ducks.
“Today I made my submissions to the Judge, outlining the law that you cannot get an injunction against the state, that a conservatory is the remedy to be granted against the state, not an injunction… you can’t stop the measures. To stop the measures would be an injunction. And that is not grantable against the state,” he said.
According to Nandlall, the applicants’ only option is to seek to preserve the measures through the granting of a conservatory order. These submissions, he said, will be presented on Friday, September 17.
“Of course, once we dispose of that issue, we will deal with the substantive issue. And the substantive issue is whether the COVID measures violate the constitution. So, I want to get out that preliminary issue and let us go head on into battle,” he said.
The legal challenge will come up for another hearing on Friday before High Court Judge Fidela Corbin-Lincoln. The Guyana Public Service Union (GPSU), the Guyana Teachers’ Union (GTU), and the Guyana Trades Union Congress (GTUC) are seeking to quash the COVID-19 vaccination and testing mandate in the COVID-19 Emergency Measures dated July 29.
The Unions contend that former President David Granger exceeded his authority when he issued the first COVID-19 measures in March 2020. Contending that the measures are an unconstitutional delegation of the President’s powers and infringe Article 111 of the Constitution, the Unions want them to be quashed.
The Unions are also seeking an order of certiorari quashing the COVID-19 Emergency Measures dated July 29, as well as a declaration that same is unconstitutional. They are also asking the court to grant an injunction preventing the State from implementing the requirement that Government workers show proof of vaccination against COVID-19 or produce a negative PCR test result at their own expense.
The Unions, through their lawyers Dane Victor Elliot-Hamilton and Darren Wade, instituted legal action against the State after unvaccinated workers were denied access to their places of employment.
In response to the rise in COVID-19 deaths and cases, the Government has mandated that any person wishing to enter a public building must be vaccinated. A public building refers to a building to which the public has lawful access, and includes both privately- and publicly-owned buildings.
Any unvaccinated person who wants to enter a public building must make an appointment and present a negative PCR test taken within seven days of the day they want entry. Only tests from a Health Ministry-approved laboratory are accepted. These measures expire at the end of this month.
The Public Service Ministry has also reminded that no public servant who does not report for duty because of the COVID-19 measures will be paid. The Health Minister, on the other hand, has defended the updated vaccination requirements as necessary to ensure public safety. (G3)