A HIGH COURT judge has ruled as unlawful, covid19 regulations which make it a criminal offence if someone breaches the guidelines for places of worship. But he also dismissed a claim that people’s rights to practise their religions were being affected by the guidelines.
The ruling was made on Friday by Justice Ronnie Boodoosingh on two constitutional claims which challenged the validity of the coronavirus public health regulations.
Before him were two separate claims – one brought by Pundit Satyanand Maharaj
and another by five men – Dominic Suraj, Marlon Hinds, Christopher Wilson, Bruce Bowen and Collin Ramjohn – who were arrested at Alicia’s Guest House in St Ann’s at an alleged covid19 party on April 9. They were later charged with breaching the regulations. These were the first cases to test the covid19 regulations.
In his decision, Boodoosingh held that the regulations made by the minister were permissable under the public health ordinance.
“It also seems to me that public health regulations to prevent the spread of infectious and dangerous diseases fall within a narrow compass of exceptional laws which permit a minister leeway to restrict certain rights and freedoms under the Constitution,” he said.
Maharaj, however, was only successful in one aspect of his claim.
Boodoosingh said, “Making the breach of the Ministry of Health guidelines a criminal offence, in my view, is outside of the ambit of the powers given to the minister under the (Public Health) Ordinance.
“This amounts to the minister authorising regulations which criminalise conduct which, in several instances, are uncertain and vague or expressed as non-mandatory practices. Such a provision is not a valid or legitimate exercise of the powers under the ordinance.”
Although he granted Maharaj that declaration, Boodoosingh dismissed the other aspects of the pundit’s legal challenge, in which he argued that his right to practise his religion was being affected by the guidelines which prohibit gathering in large numbers.
“I can discern no fundamental threats in these measures which curtail his constitutional right to practise his religion or challenges his right to religious belief or conscience.
“There are restrictions on gathering of persons, but there is nothing that strikes at the core of his freedom to practise his religion. He has to do it in the physical company of fewer people. All religious groupings have been affected when the gathering provisions are considered,” Boodoosingh said.
In his ruling on the validity of the regulations, the judge said it appears that the measures in the regulations were precisely what were found, and are considered necessary, to prevent and check the spread of the virus.
“These decisions have been taken based on the expertise available to the minister and guided by WHO (World Health Organization) advice. There is nothing which contradicts this. “It is often necessary in these matters to act quickly and efficiently to ensure that the spread of the disease is contained as much as possible.”
However, Boodoosingh suggested there be some form of parliamentary oversight of the regulations, urging the Attorney General to consider “at minimum, some form of appropriate Parliament scrutiny for regulations made by the executive where normal everyday freedoms are affected, as has occurred here.”
He said his decision should not be taken as encouragement to expand the areas of law where such regulations restrict rights and freedoms of individuals without parliamentary scrutiny or without considering whether a special majority is needed.
“It cannot become the norm for laws, in my view, especially with significant penalties attached, to be made without parliamentary input.”
In dismissing the constitutional claims of the five alleged covid19 partygoers, who claimed that the guesthouse was private property, not a public area, and they had permission to be there, Boodoosingh acknowledged the evidence which alleged confusion by police, overreach, and even abuse on how the regulations were being enforced. But he said the five could challenge these in their respective matters.
As he dealt specifically with the guidelines, Boodoosingh said they could not be subject to criminal penalties, as they were not incorporated as law. “A guideline cannot be a mandatory requirement. It may be seen as something being strongly urged; it is there for assistance; it is there to encourage a particular kind of conduct. But it is not prohibited with the sanction of a punishment and not one of imprisonment as is the case here.
“The risk is that even if there may not be prosecutions for violations like this, it makes someone potentially liable at the hands of a zealous police officer.
“It makes the situation confusing for a police officer to discern what constitutes an offence and what does not. It can lead to confusion or uncertainty among citizens about what is being urged and what is prohibited.”
Boodoosingh added it is not good enough to say that if people comply with the guidelines they will not be prosecuted. He said this approach does not distinguish which aspects of conduct are prohibted and could result in criminal prosecution from those which people are simply being urged to adhere to.
“This creates uncertainty and lack of clarity for everyone. None of this is consistent with the proper application of the criminal law.”
Within the last week, there has been heated debate on covid19 regulations as they relate to private property/spaces after partygoers at Bayside Towers, Cocorite were let off with a warning by police.
Commissioner of Police Gary Griffith on Thursday called for clarity on the regulations as they relate to gatherings on private property.
Representing the State in the two claims were Senior Counsel Reginald Armour, Rishi Dass, Raphael Ajodhia, Svetlana Dass, Savi Ramhit, Diane Katwaroo and Lianne Thomas.
Representing the five men and the pundit were Anand Ramlogan SC, Renuka Rambhajan, Douglas Bayley, Jared Jagroo, Che Dindial, Ganesh Saroop and Vishaal Siewsaran.