Devastatingly disappointing decision
Last Wednesday’s decision of the Eastern Caribbean Court of Appeal was devastatingly disappointing to the hundreds of public workers who depended on our courts and constitutions to protect us at all times, most notably during times of turmoil, distress and emergency.
No other court decision in Vincentian legal history was more eagerly awaited by citizens at home and abroad. If this decision is allowed to stand, it will radically enlarge the government’s power. It will, in turn, make a mockery of the fundamental rights and freedoms enshrined in the Constitution and case law whenever governments invoke emergency powers.
In her March 13, 2023 decision, Justice Henry found the COVID mandate invoked by the government to confront the Plandemic unconstitutional, unlawful, ultra vires, disproportionate, and procedurally improper. The appellate court’s decision, with Justice Ventose and Webster in the majority, agreed with the government and reversed every finding and order of Justice Henry.
In a powerful dissenting opinion, Justice Wallbank argued that the dismissed workers presented enough facts and law for the court to dismiss the appeal. The decision will be dissected in the weeks and months ahead, but after reading the judgment, I am convinced that the appellate court got it wrong for the simplest reasons. It grants too much power and authority to the government the moment it claims that there is an emergency.
Justice Wallbank sets the stage for his dissenting opinion with the following:
“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’. 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. As we will see, the Constitution of Saint Vincent and the Grenadines is no different. Where, as in this case, such mechanisms have not been used, the full force of constitutional and legal protections continue to apply.”
Among other observations, Justice Wallbank noted that SVG was the only country in the Caribbean region to take such draconian measures. The government’s COVID policies were particularly noteworthy, especially when an analysis of the infection, hospitalisation, deaths, and recovery numbers was conducted. The dissenting justice also found that by its decision, the court was rewriting long-established law on what constituted abandonment of one’s job.
Having aggressively pursued, mocked, smeared and scorned workers who had genuine concerns about the efficacy and safety of the COVID-19 vaccine with the mantra “No Jab, no Job”, the government has adopted a policy to encourage dismissed workers to reapply for their jobs. Prime Minister Gonsalves repeated his call within hours of the court’s division. No reinstatement; reapply and beg Papa for a bly.
The government’s plea to dismissed workers is not grounded in compassion or respect for human rights. The frantic call for dismissed employees to reapply for their jobs comes from a position of political necessity. Gonsalves and his clansmen knew the vaccine mandate was incredibly unpopular. He knows that his government has won the ire of not only dismissed workers but a large group of public employees and their families who were forced to take the vaccine and have since experienced serious health complications and death. Other citizens, including many party supporters who succumbed to a combination of blind loyalty to their leader and fear, have openly expressed “buyer’s remorse”. In addition, many party insiders openly fear that the COVID mandate and Gonsalves’ dictatorial implementation may be the “Achilles heel” in his bid for a sixth term.
Vincentians owe it to themselves not to be taken by Gonsalves’ newfound expressions of compassion. Even as workers move to appeal this decision to our highest court, the triumph handed to the government for its draconian mandate must be turned into a pyrrhic victory. This disappointing court decision must catalyse citizens to renew their commitment to remove Gonsalves from the seat of power.
The people can vindicate themselves whenever the next elections are called. Every honest Vincentian knows that apart from the deadly gun violence that kills primarily young men annually, the COVID-19 injection created a new and dangerous situation where never in the history of this country has so many parents buried their children. There is now an explosion of aggressive cancers that are occurring mainly among the vaccinated.
Dismissed workers have suffered with their jobs and livelihoods. Vaccinated citizens have experienced deteriorating health and other strange occurrences in their bodies. Others have tragically died.
The crisis of confidence confronting this government is profound and fundamental. This problem runs deeper than ULP and NDP. This sad reality calls for a reset and recharting of our national trajectory.
This government deserves to be punished in the next elections. Only the people can fail themselves. All of us concerned about SVG must use our influence to ensure that our nation delivers a decisive defeat to the ruling Unity Labour Party.
