Ruling among other things that the law leans in favour of limiting fundamental rights in the interest of public health to detect, prevent, contain and eliminate infectious diseases, the Full Court on Tuesday dismissed an appeal filed by Kennard Gobin, who challenged the detention of his son at a government quarantine facility.
Gobin’s attorney, Sanjeev Datadin, has said that though Khalil Gobin is expected to be released today, the matter will still be appealed since the issues complained of still have utility.
Khalil is one of the Guyanese who were detained at a government quarantine facility after returning on a special flight which arrived in Guyana on March 25th from Barbados, seven days after all international ports were closed.
The World Health Organization (WHO) has recommended a 14-day quarantine period for persons who may have been exposed to the infectious disease.
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 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 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.
Gobin’s action was brought against Attorney General Basil Williams, Chief Medical Officer Shamdeo Persaud and Guyana Defence Force Chief of Staff Brigadier Patrick West.
He appealed 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.
He argued that the judge failed to consider and appreciate that these constitutional safeguards afforded him were breached and continued to be breached.
Affirming Justice Reynolds’ decision, however, the Full Court, comprising Justices Priya Sewnarine-Beharry and Fidela Corbin-Lincoln, found no merit in the grounds of appeal cited.
“This court does not find that the learned judge erred in refusing the order sought in the interest of the public health,” the judges asserted, declaring Gobin’s detention to be lawful.
Datadin expressed regret that the matter took place without a hearing on the submission and had to be disposed of instead on the written submissions, given its urgency and considerations of the court’s COVID-19 protocols.
He said he believes the Court misunderstood his client’s submissions regarding what he said was the inapplicability of the statute relied on by the President when he issued the executive order.
Apart from that he said that the President delegated statutory responsibilities to the Minister of Public Health that only he could perform in order to activate protocols in her discretion regarding the disease.
‘Not absolute’
While recognizing Khalil’s fundamental rights as guaranteed by Articles 139 and 148, Justice Sewnarine-Beharry pointed out that they “are not absolute.”
She said that these rights may be curtailed in the case of Article 139(1) (g) by a law authorized to prevent the spread of an infectious disease and in the case of Article 148, a law that provides for the imposition of restrictions of movement reasonably required in the interest of public health.
The Public Health Ordinance, she said, is a law which authorizes the imposition of restrictions on movement reasonably required in the interest of public health and deprivation of personal liberty to prevent the spread of infectious diseases.
Article 139(1) (g) provides that no person shall be deprived of his personal liberty save as may be authorized by law for the purpose of preventing the spread of an infectious or contagious disease.
Article 148 provides that no person shall be deprived of his freedom of movement. Article 148(3)(b) further provides that nothing contained in or done under the authority of any law shall be inconsistent with or in contravention of this article to the extent that the law in question makes provision for the imposition of restrictions on movement within Guyana that are reasonably required in the interests of public health.
The Ordinance establishes a Central Board of Health. Section 19 of the Ordinance defines the expression “infectious disease” and mentions specific diseases (not Covid-19).
The court pointed out, however, that it extends the definition therein to include any other disease the Board may declare to be an infectious disease.
Section 21 further provides that the Board shall have the direction of all measures dealing with certain infectious diseases and may make regulations regarding the control of any such disease for the purpose of restraining, segregating and isolating persons suffering from such a disease or likely from exposure to infection to suffer from any such disease.
This section, Justice Sewnarine-Beharry said, contains a proviso which allows the President to exercise powers of the Board as it relates to the direction of measures if necessity arises.
The court said that although the Appellant stated in the lower court that the Order of the President was made under an inapplicable statute, he abandoned this argument in his submissions concentrating solely on the issue of whether group quarantining breached the President’s order and the WHO guidelines.
Sewnarine-Beharry said that in his written submissions to the court Gobin sought to impugn the validity of that order by arguing that it was not validly made pursuant to the Public Health Ordinance. He argued that pursuant to the Ordinance the President could only assume the powers of the Board to issue directions for measures after the Board declared COVID to be an infectious disease.
Justice Sewnarine-Beharry said the appellant had submitted that the substance of the President’s order was that “suspected cases of the coronavirus would be subject to self-isolation and confirmed cases would be quarantined in groups at designated centres” and that the order speaks to quarantine for persons who are COVID positive.
The judge said that upon reading the order, it is apparent that those words and or the effect of those words do not appear anywhere in the order and averments in those paragraphs were clearly a manifestation of the appellant’s subjective interpretation.
The thrust of the appellant’s complaint is that the facilities at which his son is quarantined do not meet international standards which require persons who are suspected to have been exposed to the coronavirus to be individually isolated and not group quarantined as the latter puts the appellant at greater risk for contracting the disease.
According to the WHO, the ideal quarantine arrangement is to place an individual in a single room. If this is not practical, it recommends that beds are placed one meter apart and social distancing of more than one meter be observed.
The court said it fails to see how the quarantine setting at which Khalil is being kept fails to meet the minimum WHO standards.
The judge said that, for example, the bunk beds appear to be in excess of three feet apart in height and width. The judge said further, “the room is without the usual comforts and fineries one would expect at home and I do not know if the black and white images deceive the court but the room appears to be clean, well ventilated and uncrowded.”
She pointed out, too, that the appellant himself said in his affidavit that he was required to share a room with four persons. The court said it is noteworthy that there is no medical evidence called on the part of the appellant that suggests that his health is put at risk by being in this setting.
The judge noted that Khalil travelled from countries hit by coronavirus and he knew prior to coming to Guyana that he had to obey all recommendations as published by the Ministry of Public Health. In fact, she said before his arrival the Ministry of Public Health published preventative measures from 17th to 20th March.
It advised “No more self-quarantine,” and that all suspected probable and confirmed cases of COVID-19 will be quarantined at a Ministry of Public Health facility.
According to the WHO, quarantining involves the restriction of movement or separation of healthy individuals who may have been exposed to the virus from the rest of the population with the objective of monitoring symptoms and the early detection of cases and is different from isolation which is the separation of ill or infected persons from others so as to prevent the spread of the infection or contamination.
Justice Sewnarine-Beharry said it is not in dispute that quarantine is a public health measure to prevent the introduction of the disease to new areas or to reduce human-to-human transmission in areas where the virus is already circulating.
The judge said that while the court is in no way attempting to usurp the functions of the executive by making policy decisions, it was encouraging that when implementing quarantine, the relevant authorities should provide the public with clear, comprehensive and consistent guidelines, which are fully respectful of the dignity, human rights and fundamental freedoms of persons.
These guidelines, she said, should be communicated effectively to reduce panic and promote compliance.
Concurring with Justice Sewnarine-Beharry, Justice Corbin-Lincoln said the assertion by Gobin that his quarantine is unlawful because he has not tested positive for COVID-19 and because he has been subject to group quarantine, which is outside the scope of the order by the President is without merit.
She said, too, that he failed to establish even a prima facie case that his detention was unlawful or unjustified and consequently the learned trial judge did not err in refusing the application.
Refusing the appeal, the court imposed costs on the appellant in the sum of $250,000, which he has to pay to the state.
