Trade unions ask High Court to quash latest COVID-19 vaccination measures

Last Updated on Tuesday, 31 August 2021, 17:08 by Denis Chabrol

The Guyana Teachers’ Union, Guyana Public Service Union and their umbrella Guyana Trades Union Congress on Tuesday  asked the High Court to quash government’s vaccination policy that they say amount to coercion to take the jab against the viral disease.

Also named as applicants are GPSU Vice President Dawn Gardner, GTU General Secretary Coretta Mc Donald and GTUC General Secretary Lincoln Lewis. The lone respondent is the Attorney General Anil Nandlall.

The trade union organisations and unionists in particular want the High Court to quash the Covid-19 Emergency Measures (No. 20) Notice dated the 29^th day of July, 2021 and published in the Extraordinary Publication of the Official Gazette dated the 29^th day of July, 2021.

Pending the hearing of the  substantive case, they want the High Court to grant an interim injunction prohibiting the State of Guyana, its agents and authorised entities from implementing section 17 of the Covid-19 Emergency Measures (No. 20) Notice until the determination of the Fixed Date Application.

Further, they are asking that the State to bear the cost of a COVID-19 testing regime for employees of the State of Guyana until the determination of the Fixed Date Application.

Those measures require government workers and public transportation providers, among others, to be vaccinated or have in their possession a recent negative PCR test before they can enter their workplaces, transact business with government agencies or provide transportation services.

The High Court has been asked by Ms. Gardner, whose GPSU represents 19,000 workers, to stop government from preventing unvaccinated workers from entering their workplaces. “While section 17 appears to apply to members of the general public who wish to attend government departments and agencies for access to government services, the State appears to be applying it to employees of the State who work at these departments. The rule of law demands certainty in the application of laws on the citizens of Guyana.  I am advised by my attorneys-at-law that it is just and convenient that an interim injunction should be issued restraining the government from implementing section 17 of the Covid-19 Emergency Measures (No. 20) Notice,” she said.

Through their lawyers Darren Wade and Dan Victor Elliott-Hamilton, they want the High Court to declare that a direction by the President March 16, 2021 was made in excess of his jurisdiction under section 21 of the Public Health Ordinance, and was an unconstitutional  and improper delegation of the President’s powers.

Further, they are asking the High Court to declare that the Covid-19 Emergency Measures (No. 20) dated the 29^th day of July, 2021 is invalid having been made without jurisdiction given the unconstitutional and/or improper delegation of the President’s powers.

“The regulation is unreasonable and arbitrary as it makes no provision for its termination in the event that the Central Board of Health is in a position to convene a meeting to make regulations; or be expressed to be for a specific and defined reasonable period of time which would allow the Central Board of Health to convene a meeting,” the applicants said.

The GPSU, GTU and GTUC and their officials also want the High Court to declare that the Direction by the President  is unreasonable and arbitrary and that a section of it is disproportionate. “The regulation is disproportionate as it goes beyond what is reasonably required in the interim to allow for the convening of a meeting of the Central Board of Health convenes and seeks to extend the effect of the directive until such time that the President deems fit,” they say in court papers.

They want the High Court to  quash a Direction by the President dated the 16^th day of March, 2020 and published in the Extraordinary Official Gazette dated the 16^th day of March, 2020 Legal Supplement B.

The trade unionists in their personal capacities say they are “directly affected by the imposition of the Covid-19 Emergency Measures (No. 20) Notice which restricts their freedom of movement within the State and which imposes conditions on their ability to carry out daily activities.  “The First and Third Applicants are employed by various arms of the government who have imposed work restrictions by virtue of the provisions contained in the Covid-19 Emergency Measures (No. 2) Notice.”

The GPSU, GTUC and GTU say they are the  “most representative organization of public service employees in Guyana.”

The applicants say that nothing has stopped the Central Board of Health from convening to make regulation, adding that the Regulatory Powers of the President should only be exercised for such time that it is reasonably necessary until a meeting of the Central Board of Health can be convened. ”

The unions and the unionists say there is no emergency currently prohibiting the Central Board of Health from convening a meeting and issuing regulations under section 21 as the primary public authority empowered to make regulations under the Act.

In her affidavit, Ms. Mc Donald , whose union represents, about 6,800 teachers, said that City Mayor Ubraj Naraine, informed her that the Central Board of Health still sits and sits every month on the first Wednesday of the month but over the past 3 months sits twice per month. “In the circumstances it cannot be said that the President’s powers to make regulations under the section can be exercised until further notice as such a regulation is unreasonable and disproportionate given that the Central Board of Health is properly constituted and can sit to make regulations as envisioned by the Public Health Ordinance,” she said.