Three of the trade unions which represent workers in the public service have approached the High Court in an attempt to have the COVID-19 emergency measures requiring that proof of vaccination or a negative test be provided by public servants before they can access their work-place declared unconstitutional.
According to a Fixed Date Application made on behalf of the Guyana Teachers’ Union (GTU), the Guyana Public Service Union (GPSU) and umbrella body the Guyana Trades Union Congress (GTUC) then President David Granger exceeded his authority when he issued the first COVID-19 emergency measure in March 2020. They have therefore called for the measures to be quashed.
In the interim they have asked the Court to grant an injunction preventing the state from implementing the vaccination require-ment and to order the government to stand the cost for regular COVID-19 testing of public servants.
The action filed by attorneys Darren Wade and Dane Victor Elliot-Hamilton was instigated after unvaccinated public servants including front-line healthcare workers were denied access to the Georgetown Public Hospital Corporation (GPHC) and other healthcare facilities. Minister of Health Dr Frank Anthony has told reporters that these workers will be marked absent and not paid for those days they were locked out of the hospitals. The Ministry of Education has also announced that all teachers will be required to provide proof of vaccination or a weekly negative PCR test before being allowed into the classroom.
The unions along with GTU General Secretary Coretta McDonald, GTUC General Secretary Lincoln Lewis and GPSU Vice President Dawn Gardener have approached the Courts with the argument that the President has exceeded the powers granted to him via Article 111 of the Constitution and Section 21 of the Public Health Ordinance.
The contention is rooted in the specific wording of Section 21 which em-powers the Central Board of Health to create regulations to manage the treatment and spread of specific diseases, namely, yellow fever, small-pox, alastrim, cholera, plague and typhus.
According to the application the President is only empowered to make such regulations that the Central Board of Health is itself empowered to make.
“The Coronavirus-2019 is not listed as a disease under the referenced section and [therefore] the Direction of the President insofar as it relates to the Coronavirus-2019 is made in excess of the jurisdiction granted to the President to make subsidiary legislation,” the application explains.
The application specifies that in the absence of action by the National Assembly, which could add COVID-19 to the list of diseases in the section, the Central Board of Health is not empowered under section 21 (1) to make regulations in relation to its management.
Further they argue that by continuing to delegate to the Ministry of Health the power to create regulations in relation to COVID-19 the President has violated the legal principle of “delegatus non potest delegare”.
“A power granted to a public authority cannot be delegated to another person or body unless expressly authorised by the enabling statute in question. In exercising his powers under the second proviso to section 21 (1), the President is exercising a delegated power of legislation… Section 21 (1) does not empower the Central Board of Health to delegate their regulation making powers to any third party,” they stress.
The application is supported by the orders themselves and affidavits filed by Gardener, McDonald and Lewis.
In her affidavit Gardener explains that GPSU represents about 19,000 employees within the State of Guyana employed in the public sector all of whom are affected by the restrictions imposed by section 17 of the COVID-19 measures.
In arguing for the interim injunction Gardener stresses that unless restrained, thousands of members of the GPSU would be affected for an indeterminate period until the determination of the Fixed Date Application.
“The public interest favours the granting of an injunction, as there has been significant confusion in the implementation of the policies stemming from section 17, as the Minister of Health has not clearly delineated its ambit. 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,” she maintains.
