Shanile Howe v The Minister of Health and The Environment
| Jurisdiction | St Vincent and the Grenadines |
| Judge | ‘Henry, J.’ |
| Judgment Date | 01 December 2023 |
| Neutral Citation | VC 2023 HC 3 |
| Docket Number | SVGHCV2021/1033 |
| Court | High Court (Saint Vincent) |
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW UNDER PART 56 OF THE CIVIL PROCEDURE RULES 2000 (As Amended) PURSUANT TO LEAVE GRANTED BY THE HONOURABLE JUSTICE ESCO HENRY BY ORDER DATED 10 th MARCH 2022
and
IN THE MATTER OF REGULATIONS 8(1) AND 8(2) OF THE PUBLIC HEALTH (PUBLIC BODIES SPECIAL MEASURES) RULES 2021
and
IN THE MATTER OF THE DECISION OF THE PUBLIC SERVICE COMMISSION TO TERMINATE THE EMPLOYMENT OF THE 1 st, 2 nd, 3 rd and 4 th CLAIMANTS WITHOUT AN OPPORTUNITY TO BE HEARD HAVING DEEMED THE SAID CLAIMANTS TO HAVE ABANDONED THEIR POST AND THEREBY RESIGNED FROM THEIR RESPECTIVE POSTS
and
IN THE MATTER OF THE DECISION OF THE POLICE SERVICE COMMISSION TO TERMINATE THE EMPLOYMENT OF THE 5 th CLAIMANT WITHOUT AN OPPORTUNITY TO BE HEARD HAVING DEEMED THE SAID CLAIMANT TO HAVE ABANDONED HIS POST AND THEREBY RESIGNED
IN THE MATTER OF THE DECISION OF THE COMMISSIONER OF POLICE TO TERMINATE THE EMPLOYMENT OF THE 6 th CLAIMANT WITHOUT AN OPPORTUNITY TO BE HEARD HAVING DEEMED THE SAID CLAIMANT TO HAVE ABANDONED HER POST AND THEREBY RESIGNED
and
IN THE MATTER OF SECTIONS 1, 5, 6, 8, 16, 17, 37, 38, 77,78, 84, 96 and section 101 OF THE CONSTITUTION OF SAINT VINCENT AND THE GRENADINES
and
IN THE MATTER OF COVID-19 (MISCELLANEOUS AMENDMENTS) ACT NO. 5 OF 2020 and SRO NO. 32 OF 2021 ENTITLED THE COVID-19 (MISCELLANEOUS AMENDMENTS) ORDER 2021
CONSOLIDATED WITH
IN THE MATTER OF A CLAIM FOR JUDICIAL REVIEW UNDER PART 56 OF THE CIVIL PROCEDURE RULES 2000 (As Amended) PURSUANT TO LEAVE GRANTED BY THE HONOURABLE JUSTICE ESCO
HENRY BY ORDER DATED 8th JUNE 2022
and
IN THE MATTER OF REGULATIONS 8(1) and 8(2) OF THE PUBLIC HEALTH (PUBLIC BODIES SPECIAL MEASURES) RULES 2021
and
IN THE MATTER OF THE DECISION OF THE PUBLIC SERVICE COMMISSION TO TERMINATE THE EMPLOYMENT OF THE 1 st–265 th CLAIMANTS WITHOUT AN OPPORTUNITY TO BE HEARD HAVING DEEMED THE SAID CLAIMANTS TO HAVE ABANDONED THEIR POST AND THEREBY RESIGNED FROM THEIR RESPECTIVE POSTS
and
IN THE MATTER OF THE DECISION OF THE COMMISSIONER OF POLICE TO TERMINATE THE EMPLOYMENT OF THE 257 th–265 th CLAIMANTS WITHOUT AN OPPORTUNITY TO BE HEARD HAVING DEEMED THE SAID CLAIMANTS TO HAVE ABANDONED THEIR POST AND THEREBY
RESIGNED
and
IN THE MATTER OF SECTIONS 1, 5, 6, 8, 16, 17, 37, 38, 77,78, 84, 88, 96 and section 101 OF THE CONSTITUTION OF SAINT VINCENT AND THE GRENADINES
and
IN THE MATTER OF COVID-19 (MISCELLANEOUS AMENDMENTS) ACT NO. 5 OF 2020 and SRO NO. 32 OF 2021 ENTITLED THE COVID-19 (MISCELLANEOUS AMENDMENTS) ORDER 2021
The Hon. Mde. Justice Esco L. Henry
SVGHCV2021/1033
SVGHCV2022/0053
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
Ms. Cara Shillingford-Marsh with her Mr. Jomo Thomas and Ms. Shirlan Barnwell for the claimants.
Mr. Anthony Astaphan SC, with him Solicitor General Ms. Karen Duncan and Mrs. Cerepha Harper-Joseph for the 1 st, 3 rd and 4 th defendants.
Mr. Grahame Bollers for the 2 nd and 5 th defendants.
Three years ago, much of the world was thrown into a tailspin with the pronouncement by the World Health Organization (WHO) that a pandemic had arisen, attributable to the spread of what has become known as the SARS COVID-19 disease or COVID-19. To curb the spread and the devastating toll on the health of their populations, countries introduced measures ranging from moral suasion to legislation.
In Saint Vincent and the Grenadines (‘the State’), the government implemented a variety of protocols which were revised from time to time as deemed necessary by the authorities. The Legislature enacted amendments to a number or primary legislation in response to the Covid-19 pandemic. On April 9 th 2020 the COVID-19 (Miscellaneous Amendments) Act 2020 (‘the 1st COVID-19 Miscellaneous Act) 1 was passed. It empowered ‘the Minister’ to modify any law by amending the Schedule by Order.
On April 9 th 2020, Parliament also amended the Public Health Act 2 by the Public Health (Amendment) Act No. 6 of 2020 3 (referred to collectively as ‘the Act’). The amendments among other things empowered the Minister of Health, Wellness and the Environment (‘the Minister’) on the recommendation of the Chief Medical Officer (‘the CMO’) to declare that a public health emergency exists in the State if the CMO believes this is the case and that it cannot be mitigated or remedied without the implementation of special measures 4.
On being so advised the Minister may seek to mitigate and remedy the public health emergency by implementing any special measures considered necessary for the protection of public health during the public health emergency 5. Special measures under the Act may include the establishment of a voluntary immunization programme in the State.
Having received advice from the CMO, the Minister on December 3 rd 2020 issued the Public Health Emergency (Declaration) Notice 2020 6 ( ‘the Emergency (Declaration) Notice’) pursuant to
On 19 th October 2021, the Minister made the Public Health (Public Bodies Special Measures) Rules 7 ( the Special Measures SR&O') which among other things mandated the vaccination 8 of frontline public service employees, unless exempted 9 by the employer on medical or religious grounds. By rule 8(1), unvaccinated public officers who did not have an exemption were forbidden from entering the workplace and were to be ‘treated as being absent from duty without leave’. Rule 8(2) provides that regulation 31 of the Public Service Regulations ( ‘PS Regulations’) 10 would apply to such public officers who were deemed by rule 8(1) to be absent from duty without leave.
Regulation 31 of the PS Regulations states that a public officer who is absent from duty without leave for 10 continuous days shall be deemed to have resigned his office, (unless declared otherwise by the Public Service Commission (‘the PSC’)). It provides further that the office thereby becomes vacant and the officer ceases to be an officer. When the Special Measures SR&O were made, no similar provision was in place in respect of members of the police force. However, an amendment was introduced to the Police Act 11 on 12 th November 2021 by the insertion of a new section 73A to such effect, in respect of police officers.
The amendment was effected by the COVID-19 (Miscellaneous Amendments) Order 2021 12 made by the Honourable Prime Minister, who holds the portfolio as the Minister of National Security, with ministerial responsibility for the police force. By that amendment, the authority charged with declaring ‘otherwise’ under section 73A is the Governor-General, the Police Service Commission (‘the Police
The claimants are 271 police officers and public officers (including teachers) to whom the referenced provisions applied. They elected not to take the COVID-19 vaccine. The PSC, the Police SC and the COP decided that the respective officers were thereby deemed to have resigned their offices and posts and that their offices were deemed vacant by operation of law. By letters issued in December 2021 the PSC, the Police SC and the COP so notified all but one of the claimants. In some cases, applications had been made by the officers for exemptions. Those who could not be accommodated elsewhere within the public service or police service were so informed. Mr. Shefflorn Ballantyne, a teacher, did not receive a letter that he was deemed to have resigned or that his office was deemed vacant. However, his access to the online teaching portal was barred. In two separate actions, the claimants applied to the High Court 13 for leave to seek judicial review. Leave was granted.
By Fixed Date Claim Forms filed respectively on March 24 th and June 23 rd 2022, they applied for judicial review of the impugned decisions and for constitutional relief. The claimants sought orders against the Minister, the PSC, the Police SC, the COP and the Honourable Attorney General quashing the impugned decisions, declaring the impugned legislation to be unconstitutional, disproportionate, unlawful and tainted by procedural impropriety. They also claimed damages with interest and costs. On application by the claimants in Claim SVGHCV2022/0053, the Court appointed four 14 of them to represent the entire group. The claims were consolidated and heard together.
The claimants contend that rule 8 of the Special Measures SR&O is unconstitutional, ultra vires, disproportionate and tainted with procedural irregularity as are the PSC's, the Police SC's and the COP's decisions to deem that the respective public and police officers have resigned their offices. They asserted further that...
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