The High Court yesterday denied the granting of an interim injunction sought by unions against measures restricting access to public spaces by persons who have not been vaccinated against the COVID-19 virus.
This means that government’s vaccination policy requiring proof of vaccination or a negative test before entry to all places to which the public has access will continue pending the hearing of the substantive case brought by the unions.
In her ruling yesterday morning, Justice Fidela Corbin-Lincoln said that the State has a duty to take steps to avert the spread of the disease and found on this ground that the balance-of-convenience in the interest of the wider public far outweighs the grant of the interim injunction, thus resulting in the Court not exercising its discretion against the COVID measures.
While their substantive application is yet to be heard, the Guyana Teachers’ Union (GTU), the Guyana Public Service Union (GPSU) and umbrella body the Guyana Trades Union Congress (GTUC) had asked the Court to grant interim injunctive relief and declarations against the State, by lifting the measures which their attorney had described as harsh.
The Fixed Date Application predates the most recent COVID measures which counsel for the unions, Darren Wade was seeking to have lifted.
Citing what he said was hardship faced by many who are being locked out of their places of employment and worship, and face risk of arrest for breach of the measures, Wade had asked for the measures to be lifted, at least until the hearing and determination of his clients’ substantive claim.
The current COVID measures see unvaccinated public servants, including front-line healthcare workers, denied access to the Georgetown Public Hos-pital Corporation (GPHC) and other places of employment.
Unvaccinated teachers are also not allowed in classrooms. The measures extend to places of worship; and also oust the unvaccinated from entering commercial banks, malls, supermarkets and other spaces to which the public has access.
Wider public interest
Referencing a plethora of case law authorities in her ruling denying the injunction, Justice Corbin-Lincoln said that the interest of the wider public has to be considered. It is upon this that her decision not to grant the injunction was hinged.
On this point she said that the applicant seeking the grant of an interim injunction must show: 1) that there is a serious issue to be tried; and 2) before moving on to consider whether it is just and convenient for the Court to grant an injunction.
She then highlighted that it must further be considered whether there would be adequate remedy in damages, and secondly—if that stage did not provide an answer—the balance of convenience would have to be assessed.
She said that in cases involving the public interest such as the one filed by the unions, damages are not an adequate remedy which makes it necessary for the Court to then examine the balance of convenience.
Citing precedent, she said that in this context particular attention should be placed upon the importance of upholding the law in the public interest, bearing in mind the need for stability in society and the duty placed on certain authorities to enforce the law in the public interest. This she said is an important factor to be weighed in the balance when assessing the balance of convenience.
She reasoned that if a public authority seeks to enforce what is prima facie the law, and the person against whom such action is taken challenges the validity of the law, then matters of considerable weight would have to be put into the balance to outweigh the desirability of enforcing in the public interest.
Justice Corbin-Lincoln said she found the claim does raise serious issues to be tried regarding whether the President of Guyana acted outside of the powers conferred under Section 21 of the Public Health Ordinance.
One, she said, is specifically the question of whether COVID-19 is a disease specified under Section 21 as one of the infectious diseases which the Board of Health and by extension the President, using the delegated powers, could exercise the powers conferred by that section.
In her examination of the balance of convenience and its implications, Justice Corbin-Lincoln said that in respect of whether the Court should restrain the State from instituting any further vaccination requirement pursuant to any regulation issued by the Minister of Health and issue an interim injunction and/or prohibitory order requiring the State to bear the cost of COVID-19 testing until the substantive case is heard, the Court must consider all the circumstances including the interest of the public.
The Judge pointed out that the affidavit in support of the application filed by the unions stated that the vaccination requirement has been used by the State to justify exclusion from work of public sector employees and that no system has been established by the government to bear the cost of the PCR test mandated while further advancing that unless restrained, persons would be affected for an indeterminable period until the substantive claim is determined and that there has been “confusion” in the implementation of the directive.
The Judge said that the directive is indeed silent on who should bear the cost of testing and adds that to make an interim order directing the State to pay for the testing “will do no more than bring further confusion to what the applicants contend is already a confusing situation.”
She said the Court is not satisfied that its discretion should be exercised in favour of making such an order.
Justice Corbin-Lincoln said that the world has been severely impacted by the effects of the COVID-19 pandemic and that governments throughout the world have employed various measures to contain and reduce the spread of the virus, including mandatory lock-downs, quarantine, curfews and mask-wearing.
The introduction of vaccines, she noted, is the most recent effort to address the pandemic even as she added that “the Court is not deaf to the debate raging around the world with respect to the efficacy or effectiveness of the vaccines, the legality of mandatory vaccination requirements and whether implementation of mandatory vaccination is a reasonable infringement on constitutional rights.”
She said reports suggest that vaccine-hesitancy is a live issue in Guyana for various reasons. She added that as part of its efforts to combat the pandemic, the government has already implemented a requirement for proof of vaccination or negative testing to enter public buildings, even as she underscored that the State has a duty to take measures to avert the spread of the disease.
The issue, she said, of whether the President rightfully exercised the powers he purported to exercise under section 21 is still to be determined in the substantive case but noted that while the applicants have given evidence of the inconvenience and challenges suffered as a result of the implementation of the vaccination requirements she does not find that there is any evidence of such “irreparable harm” being suffered so as to weigh in favour of the grant of an interim injunction.
The Judge said, “in my view” it would not be in the interest of stability of the public to grant the injunction restraining the government from implementing any future or even the existing vaccination measures when it is yet to be determined whether or not the President acted ultra vires.”
“I therefore find that the balance of convenience weighs against the grant of the interim injunction,” Justice Corbin-Lincoln said in her ruling.
Given the public interest nature of the case, the Court made no orders as to costs.
A date will now have to be fixed for the hearing of the substantive claim.
Court has power to grant injunction against state
While Justice Corbin-Lincoln refused to grant the injunction, she did, however, find that the Court has the power to grant an injunction against the State. Attorney General Anil Nandlall SC in previous submissions had argued that the Court did not have the power to grant injunctive relief against the State.
His contention was that in accordance with the State Liability and Proceedings Act (SL&PA), injunctions could not be granted against the State to prohibit it from taking an action or to mandate it to perform an action.
Justice Corbin-Lincoln in her assessment of legal authorities concluded that the SL&PA did not apply and that the Court could in fact issue injunctive relief against the State.
Contending that then President David Granger exceeded his authority when he issued the first COVID-19 emergency measure in March, 2020, the unions are now calling for the measures to be quashed. They have also asked 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 recent negative PCR test result at their own expense. They have asked that the court order the government to stand the cost for regular COVID-19 testing of public servants.
The applicants want the COVID-19 emergency measures requiring proof of vaccination or a negative test to be provided by public servants before they can access their workplace be declared unconstitutional.
The action was instituted after unvaccinated public servants, including front-line healthcare workers, were denied access to the Georgetown Public Hospital Corporation (GPHC) and other healthcare facilities.
Minister of Health Dr. Frank Anthony has told reporters that these workers will be marked absent and not paid for those days they were locked out of the hospitals. The Ministry of Education has also announced that all teachers will be required to provide proof of vaccination or a weekly negative PCR test before being allowed into the classroom.
