Acting Chief Justice Roxane George SC will on January 20, 2022 commence hearing the action filed by the Guyana Teachers’ Union (GTU), the Guyana Public Service Union (GPSU) and umbrella body the Guyana Trades Union Congress (GTUC), which are all contending that former President David Granger acted outside powers conferred under Section 21 of the Public Health Ordinance when he issued the first COVID-19 emergency measure back in March, 2020.
At a case management conference (CMC) on Thursday morning, Chief Justice George set timelines by which the parties are to file and serve submissions and announced that she will commence hearing arguments on January 20.
The unions along with GTU General Secretary Coretta McDonald, GTUC General Secretary Lincoln Lewis and GPSU Vice President Dawn Gardener have approached the Courts with the argument that the President exceeded the powers granted him under Section 21 and via Article 111 of the Constitution.
The contention is rooted in the specific wording of Section 21, which empowers the Central Board of Health to create regulations to manage the treatment and spread of specific diseases, namely, yellow fever, small-pox, alastrim, cholera, plague and typhus.
According to the application the President is only empowered to make such regulations that the Central Board of Health is itself empowered to make. “The Coronavirus-2019 is not listed as a disease under the referenced section and [therefore] the Direction of the President insofar as it relates to the Coronavirus-2019 is made in excess of the jurisdiction granted to the President to make subsidiary legislation,” the application explains.
The application specifies that in the absence of action by the National Assembly, which could add COVID-19 to the list of diseases in the section, the Central Board of Health is not empowered under section 21 (1) to make regulations in relation to its management.
Further they argue that by continuing to delegate to the Ministry of Health the power to create regulations in relation to COVID-19, the President has violated the legal principle of “delegatus non potest delegare”.
In its defending affidavit, however, the State through Attorney General Anil Nandlall SC has argued that given the ravaging effects of the pandemic around the world, it has been necessary that the President’s authority under Section 21 to be exercised, to delegate the powers of the Board of Health. In so doing, the State argues that this allows Government, through the President’s delegated powers, to continue to take immediate action as needed, and as has been needed since March 2020.
Against this background, the State has called the Fixed Date Application (FDA) filed by the unions “frivolous, vexatious, and without merit” and is asking that it be dismissed.
The action was only instituted a little over two months ago and the request for an injunction came after the implementation of more recent COVID measures requiring unvaccinated public servants, including front-line healthcare workers, being denied access to the Georgetown Public Hospital Corporation (GPHC) and other healthcare facilities.
The measures effectively restrict access to public spaces by persons who have not been vaccinated against the COVID-19 virus.
It was against this background that the unions sought an injunction against measures requiring proof of vaccination or a negative test to be provided by public servants before they can access their workplace be declared unconstitutional.
Back in September, however, Justice Fidela Corbin-Lincoln denied the interim injunction.
In her ruling, the judge 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.
The denial of the injunction has allowed for the continuation of government’s vaccination policy requiring proof of vaccination or a negative test before entry to all places to which the public has access.
To those more recent COVID measures, the unions through their attorney Darren wade, had asked for the injunction, citing hardships faced by many who were being locked out of their places of employment and worship, and face risk of arrest for breach of the measures.
