Appeal launched against COVID emergency directives

After their challenges to Government’s COVID-19 directives were thrown out by the High Court early last month, the parties will be back to court in another four months seeking to have that decision overturned.

Tuesday, March 29, 2022 has been set by the local Court of Appeal to hear why it should quash the October 8 decision of Madame Justice Jacqueline Cornelius who dismissed the four lawsuits brought by Opposition Senator Caswell Franklyn, shopkeeper Adrian Kellman and minimart owner Benson Straker who are challenging the constitutionality of the COVID-19 directives.

But attorney for the claimants Neil Marshall said on Thursday he and his clients are upset at not being able to lodge their appeal on substantial grounds because they do not have the benefit of the more detailed written court decision which had been promised by Madame Justice Cornelius within 30 days of the oral truncated version.

Marshall, who is working in association with Hal Gollop, Q.C. said he lodged the appeal on November 25 on “bare bones” grounds after efforts failed to secure a recording of the ruling and in the absence of the written judgment.

“That [appeal] has been lodged on some very basic grounds. I can say to you that ‘the learned judge erred in law and failed to give any or sufficient considerations to the many principles of law adduced and legal arguments. That is what you call a bare bones appeal,” the attorney told Barbados TODAY.

“And the reason it has been done like that is simply because, to date, despite requests, I have not had a recording of the decision that was delivered on October 8 and that is a request made so far to the Registrar of the Supreme Court who has acknowledged receipt of it. I had asked for it as a matter of urgency to formulate the grounds of appeal,” he said.

He added: “Today is now 30 plus days, and I am yet to receive a written decision in the matter. Now that is all bearing in mind that the time period for filing an appeal is 28 days. So we are now well into 30 plus days. Of course, I can’t state to you what the full extent of the grounds of appeal would be until I get a chance to examine the basis for the decision of the judge.”

Marshall is baffled by the unusually long time for the judgment to be made available.

In her near two-hour decision last month, Justice Cornelius told a virtual sitting that the directives of the Government were a proportionate response to the pandemic and not a breach of any fundamental rights.

Senator Franklyn had challenged the manner in which the Emergency Management legislation, crafted by the Government to help to control the spread of the virus in the island, was imposed.

He charged that Government was illegally enforcing directives that did not have Parliament’s approval.

Kellman’s court action stemmed from the COVID-19 Monitoring Unit’s closure of his popular Kermit’s Bar on Thornbury Hill, Christ Church, while Straker and his business Benson’s Minimart sued Attorney General Dale Marshall and then Commissioner of Police Tyrone Griffith, alleging that they acted unlawfully and beyond their legal power of authority in enforcing the Emergency Management (Amendment) Act which governs the directives.

In her decision, the judge refused the claimants’ request for declarations that the actions of the defendants were ultra vires, unconstitutional, discriminatory, null and void, or of no effect in law.

The claimants have already stated their intention to take their case right up to the Caribbean Court of Justice (CCJ), Barbados’ final appellate tribunal, if necessary. emmanueljoseph@barbadostoday.bb