The Full Court is set to rule today on an appeal filed by Kennard Gobin, who has challenged the detention of his son at a government quarantine facility.
Khalil Gobin is one of 43 Guyanese currently quarantined at a government facility as part of measures to prevent community spread of the novel coronavirus disease (COVID-19) and includes passengers of a special flight which arrived in Guyana on March 25 from Barbados, seven days after all international ports were closed.
Kennard, who applied to the High Court for an Order of Habeas Corpus Ad Subjiciendum demanding that government officials explain the lawfulness of his son’s detention, is contending that he is being unlawfully detained.
The family’s attorney, Sanjeev Datadin, said that their main contention is that the conditions of Khalil’s quarantine do not comply with the March 16 Executive Order issued by President David Granger, Guyana’s constitution and the standards published by the World Health Organization (WHO).
He contends that the Executive Order permits quarantining if groups of persons are COVID-19 positive but neither Khalil nor anyone else there has been tested so they should be allowed to self-quarantine.
Last Thursday, however, Justice Brassington Reynolds, who heard and dismissed Gobin’s application, ruled among other things that he was satisfied on the evidence, that when placed in the national context, the measures introduced by the government are not arbitrary, and that they accord reasonably with international guidelines to prevent, detect, contain and eliminate the spread of the deadly virus COVID-19.
He said that in resolving the collision of the constitutional rights contended by the applicant and those of the wider Guyanese community inclusive of his own family, the court had recourse to the proportionality test, a legal method used by courts to decide such cases, where legitimate rights collide.
The judge said it is common in such cases that a resolution necessarily leads to one right prevailing at the expense of another. In order to decide such cases correctly, the court must balance (or weigh) the respective rights against the damage likely to accrue from a judgment resulting in their denial.
In applying the theory of proportionality in that regard, the court said it considered that it was the applicant who first placed himself voluntarily in a small plane with other similarly circumstanced citizens, with limited ventilation and recycled air and traveled together with them in that confined space for close to three hours being fully aware that he and the other passengers would be institutionally quarantined upon arrival in Guyana.
The test discloses that the risk of damage which would accrue to the wider community if the court were to accede to the applicant’s request far outweighs those which would accrue to the applicant were his request to be denied.
Dismissing Gobin’s application, Justice Reynolds said that being satisfied that the terms and conditions under which the applicant is currently institutionally quarantined fall well within the guidelines provided by the World Health Organization for such isolation, rules that the threshold of sufficiency (no prima facie case) has not been achieved by the applicant so as to warrant the issuance of a writ of habeas corpus.
‘Erred’
The elder Gobin is asking the Full Court to set aside Justice Reynolds’ ruling arguing among other things that he erred in law and fact and was plainly wrong in failing to properly construe and interpret Articles 139(1)(g) and 143(3)(9)(b) of the constitution and continued in error by refusing the orders sought by Gobin.
The appellant is of the view that the judge failed to consider and appreciate that these constitutional safeguards afforded him were breached and continue to be breached.
He said, too, that the judge failed to appreciate the distinction of a person who was “exposed to COVID-19,” who should be isolated and a person who had “tested positive for COVID-19,” who should be quarantined.
The elder Gobin is contending that another error made by the judge was the finding that Khalil had disentitled himself to relief by virtue of voluntarily placing himself on a plane for three hours to travel to Guyana.
He is arguing further that the judge failed to consider the evidence before the court, taking into consideration what he says were irrelevant statements and non-existent guidelines from the Ministry of Public Health
The appeal before the Full Court is being heard by Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln.
Khalil Gobin’s court challenge came hours after his brother wrote an open letter to a series of public health officials, including Dr. William Adu-Krow, the Pan American Health Organization/World Health Organization (PAHO/WHO) Representative and Public Health Minister Volda Lawrence.
The brother contended that Gobin is being held in “inhumane conditions.” He said that his brother informed him that he is staying in a room which has no windows and is only equipped with two fans, with 10 persons, some of whom were there before he arrived.
These persons are made to share “the bare necessities to live,” including two bathrooms that they are forced to clean themselves.
He added that the food prepared is not proper and is delivered at “odd times of the day”.
Gobin himself told Stabroek News that the beds within the facility are in a deplorable state and the inmates have not been provided with mosquito nets or new bedsheets, so they had been using the same ones for days.
“The concern about this arrangement is that it defeats the purpose of mandatory quarantine since healthy persons in this facility may become infected with the virus”, he said in the letter, while adding that in those conditions it is difficult for persons to practice the necessary precautions to protect themselves from contracting the virus.
The man further stated that there is no line of communication between the passengers and those persons in authority and while an attempt was made it did not last long as it “descended into arguments”.
If proper communication were established, he noted, those passengers along with their relatives might have been able to propose assistance in having the quarantine exercise flow smoothly and for arrangements to be made for better meals.
He further said that it may be reasonable to think that all healthy individuals in the facility will become infected if just one person has the virus.
Gobin’s family is contending that while the WHO has specifically outlined measures to be used to facilitate quarantining of individuals the government has not complied.
According to the WHO’s ‘Considerations for quarantine of individuals in the context of containment for coronavirus disease (COVID-19)’, before the implementation of quarantine, countries should properly communicate and socialize the measures in order to reduce panic and improve compliance.
The WHO guidelines add that even within the facility social distancing should be maintained among those in quarantine.
Further provisions include adequate food, water and hygiene provisions, appropriate medical treatment for existing conditions and communication inclusive of the explanation of their rights, the provisions that will be made to them, how long they will be made to stay at the facility and what would be the protocols if they are to get sick.
“Any person in quarantine who develops febrile illness or respiratory symptoms, at any point during the quarantine period, should be treated and managed as a suspect COVID-19 case” the article said.
It added that daily follow-ups should be conducted with the persons within the facility for the duration of their stay and that laboratory testing of a respiratory sample from the quarantined persons, irrespective of symptoms is advised at the end of the period of quarantine.
