Dissenting Judge in the St Vincent vaccine mandate case Justice of Appeal Gerhard Wallbank stated that in his respectful judgement the appeal should have been dismissed and the judgement of the learnt judge Esco Henry affirmed.
Justice Wallbank said the learned judge in the court below, in his respectful judgment, delivered a judgment which was, for the most part, carefully and closely reasoned.
“It was, in my view, open to her to reach most of the conclusions she did and I see no reason for this Court to disturb her findings and her ultimate decision. There are, in my respectful judgment, two areas in which it is particularly clear to me that her conclusions were correct: (1) (2) key parts of Public Health (Public Bodies Special Measures) Rules, 2021 SR&O No. 28 of 2021 were unconstitutional because they were disproportionate; and the decisions of the Public and Police Service Commissions that the respondents had remained unvaccinated without reasonable excuse and were thus to be treated pursuant to SR&O 28 as having resigned their positions were invalidated by reason of elementary principles of natural justice or fairness”.
Justice Wallbank said it should also be recalled that constitutions and legal safeguards of a State are important.
“They are typically expressed to embody the supreme law of a State already subject to the absolute rule of law. Constitutions have only one function: to protect the residents of a State from abuses of power and excess of authority by those who are supposed to serve them. Constitutions are not some pious symbol adorning the facade of an independent nation-state; constitutions are there to protect the residents of a state, including and especially when times are difficult – and that includes in that period of recent history often referred to as ‘during COVID’”.
Justice Wallbank said the magnitude and gravity of COVID, as perceived by many, including the decision-makers in government, did not and cannot trump the application of constitutional and legal safeguards..
“It would set an extremely dangerous precedent if governments can assume they will not be held by the courts to adhere to the demands of a constitution or of the law if a situation is represented by the government and the media as sufficiently serious to warrant this. If a measure breaches legal or constitutional principles, then the gravity of a situation cannot save it. Constitutions typically contain mechanisms for dealing with emergency situations. AAs we will see, the Constitution of Saint Vincent and the Grenadines is no exception. Where, as in this case, such mechanisms have not been used, the full force of constitutional and legal protections continue to apply,” Justice Wallbank stated.