The High Court has thrown out challenges brought by an Opposition Senator and two businessmen to Government’s COVID-19 directives, but the losing parties have indicated they will take their fight as far as the Caribbean Court of Justice (CCJ).
Madame Justice Jacqueline Cornelius on Friday threw out all submissions which formed the core of four lawsuits brought by Senator Caswell Franklyn, shopkeeper Adrian Kellman and minimart owner Benson Straker, challenging the constitutionality of the COVID-19 protocols.
In a near two-hour truncated oral decision, the judge told a virtual sitting that the directives were a proportionate response to the pandemic and not a breach of any fundamental rights.
But attorney for the claimants, Neil Marshall told Barbados TODAY that his clients have already given him “firm” instructions to start the process of appeal which would go as far as the CCJ, the island’s final appellate court, if necessary.
Senator Franklyn had challenged the manner in which the Emergency Management legislation, crafted by the Government to help to control the spread of COVID-19 on 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 in Thornbury Hill, Christ Church; while Straker and his business, Benson’s Minimart, sued Attorney General Dale Marshall and 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, Madame Justice Cornelius 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 court also turned down an application by the defendants for a judicial review of the actions of the Commissioner of Police as head of the constabulary when one of his officers ordered the closure of Kermit’s Bar during curfew.
“The court accepts the evidence of the police officer Babb who directed officer Kevin Durant to order the claimant to close his establishment and rejects the argument that he did not have the authority to so do,” the judge said in the ruling delivered from her office instead of the courtroom, due to the heightened spread of COVID-19 which prompted a decision to place staff on a rotation shift.
“The court is of the view that under the Police Act Chapter 167, Section 90, it shall be the duty of all members of the Police Force to preserve the peace and detect crime and other contraventions of the law. The society would be in a certain matter of disarray if this was not so.”
She added: “The fact that in this particular legislation, the power is also given to the COVID Unit does not oust the power of the police who also have a general power to close premises [which are] in contravention of the directive and not appearing on the exempted list.
“With regard to the argument that the failure to give reasons was an error on the face of the record, the court notes that this point was not properly addressed in the evidence of either party.”
The judicial officer said that even though there is a duty for the authorities to give reasons if required within the statutory period, in this case, “the court declines to make any order in respect of this as the issue has been overtaken by this case and events”.
Madame Justice Cornelius pointed out that in any event, the court did not accept that the failure to give reasons is an error which would impugn the decision.
She dismissed all the claims against the Commissioner of Police and the Attorney General and declined to award damages to the plaintiffs as part of their requested relief.
“With regard to the issue of uncertainty, the court holds that the directives are not void for uncertainty. It cannot seriously be argued that in the ordinary meaning of the word shops, commonly called corner shops, rum shops and village shops, that there can be any dispute as to their nature and their distinction from the larger supermarkets. I reject the argument that these directives are therefore void for uncertainty,” the presiding judicial officer ruled.
Having challenged the penal section of the Emergency Management (Amendment) Act, the contention by the defendants that it was ultra vires also did not receive the approval of Justice Cornelius.
“In relation to penalties and fines, whether they are ultra vires through 35 of the Emergency Management (Amendment) Act, the court accepts the argument of the defendants in this matter and finds that the questioned sections are intra vires,” she declared.
The court also rejected a submission by the plaintiffs that it was unconstitutional and discriminatory for the Prime Minister to issue a curfew order that imposes fines of between $50,000 and $500,000 or jail time for contravention.
“In view of the findings of the court, the claims of all four claimants, fail in their entirety and the orders prayed for are declined,” Justice Cornelius concluded.
She informed the parties that the question of costs would be argued in a separate hearing before her, after she had shared her much lengthier written ruling with counsel on both sides within the next 30 days.
But Marshall, who is being assisted by Queen’s Counsel Hal Gollop, said he has already identified a number of broad grounds of appeal. He said they would be fine-tuned and potentially expanded once the written decision was received.
“Once we get that decision in hand we will examine it against law and the evidence and we will adduce further grounds. Of course, we have a time limit within which to do it. We have about 14 days to file our appeal and we will file several of the grounds that were easily identifiable from the oral aspect of the decision that was given today,” he said.
“This matter is now beginning for us. We still have about two more rounds to go – that is the local Court of Appeal and if we still find no good satisfaction [the CCJ]. It is not just about not having a decision in your favour and running off and filing an appeal because you feel aggrieved. When the judge gives certain decisions, you have to review that decision and see the soundness of that decision.”
Asked to share some of the grounds of appeal which would be submitted, Marshall said Madame Justice Cornelius did not give enough weight to the evidence presented by the claimants and defendants as it related to the law.
Referring to Cabinet delegating authority to the Prime Minister to make certain emergency orders in the public interest, the attorney also suggested that the judge failed to apply the Carltona Doctrine where the delegation of authority is concerned.
Attorney-at-law Gregory Nicholls, who was part of the legal team representing all the government agencies and officials involved, said he was not surprised at the court’s decision.
“We never doubted the case that we were asked to meet, so the decision is not surprising. We thought that the claims were very, very weak, and although they raised very interesting novelty areas of law, the alleged breaches of the Constitution, those claims were never very strong,” he told Barbados TODAY.
Nicholls said the court did not have to go into any new areas of law to resolve the matters since these areas had already been well navigated.
“This follows a long line of decisions that have reviewed COVID restrictions in a lot of Commonwealth jurisdictions across the world. And it only goes to show you that in emergency times… restrictions on people’s rights in emergencies in of itself is not unconstitutional,” he argued.
The man who led the team for the State, Leslie Haynes, QC., said the judge gave the correct decision by dismissing every legal argument that claimants presented to the court.
But he was even stronger in his comments when it came to the manner in which he said the taxpayers money was spent on this case.
“It is a great pity that the resources of the Crown, the limited resources of the Government were wasted on this when people could do things that are more constructive and beneficial to Barbados,” Haynes contended.
emmanueljoseph@barbadostoday.bb
