Court upholds Government's closed-border policy

A mother of eight from east Port of Spain, who was left stranded abroad for almost six months on her first trip outside TT, has lost her challenge to the constitutionality of the Government’s closing the borders.

On Monday, Justice Eleanor Donaldson-Honeywell dismissed Takeisha Clairmont’s constitutional claim, filed by her attorneys Anand Ramlogan SC, Renuka Rambhajan, Che Dindial, Alana Rambaran and Ganesh Saroop in November last year.

The judge found the covid19 public health regulations, which allowed for the closure of the borders and introduced an exemption process, were within the powers of the public health ordinance 1940 “to guard against the ravaging effects of public health risks caused by infectious disease.

That legislation, she said, served to protect the public interest in avoiding extensive illness and deaths due to infectious disease, and was saved law.

She held once the regulations were within its powers, they too were saved law, meaning they were not open to constitutional challenge.

“It is well established that the rights under the Constitution are not absolute," she said. “They carry reciprocal duties and responsibilities and may be subject to such restrictions as may be necessary in a democratic society in the public interests of national security, public safety and to protect the rights of other persons.”

She said the regulations constituted proportionate interference with the affected constitutional rights because of the global pandemic.

She also noted that the court exercised judicial restraint "in relation to the public policy management (by the Executive) of the health risks and resource allocation decisions associated with the covid19 pandemic, which is based on expert medical advice,” she ruled.

In dismissing the claim, Donaldson-Honeywell said the policy was proven by the uncontradicted evidence to be a phased repatriation of nationals who apply for permission.

The regulation "may be somewhat lacking in expression of sensitivity to the rights of nationals," she said, but did not debar them from entry.

“Both nationals and non-nationals can and have been permitted entry on a managed basis wherein entry for nationals, including the claimant, is prioritised.”

She said the evidence was that there was a critical public-interest basis for managing the repatriation of nationals on a phased basis in order to avoid the risk of many people with possible covid19 infections returning immediately, "thereby engulfing the population with deadly contagion risk for which public health resources may not be readily available unless managed effectively."

Furthermore, “Judicial notice can be taken of potential outcomes should there be unrestricted entry of nationals bringing increased covid19 risk.

“These include further business closures, curfews due to increased infection rates, further negative impacts on the economy and the prospect of TT residents succumbing to the illness in large numbers.”

Perhaps, she said alternative wording of the regulations could have been used to indicate that citizens were excluded from the border closure. But, she said, it might have been appropriate so as not to open the floodgates of re-entry.

She ordered Clairmont to pay 25 per cent of the State’s legal costs.

Donaldson-Honeywell disagreed with the State’s contention that Clairmont’s case was academic because she had been permitted entry and returned home before filing her claim.

Litigating matters of public concern, she said, "forms a critical pillar in upholding the rule of law particularly in novel areas of potential breaches of human rights. The clarification of areas of law in such matters serves the public interest.”

She added that it was appropriate for Clairmont to raise her concerns about the regulations, since border closures were a drastic measure that affects the lives of citizens.

The Attorney General was represented by Reginald Armour SC, Vanessa Gopaul, Raphael Ajodhia, Savitri Maharaj and Kadine Matthew.

In a release, the AG said he was pleased that the court upheld the Government’s decision to close the borders and manage the re-entry of citizens.

In her lawsuit, Clairmont, 41, of East Dry River, contended the Government acted illegally and breached her constitutional rights by closing the borders under public health regulations for the pandemic since March 2020.

Clairmont’s legal team claimed the Government was required to amend the immigration laws to effect the change, as opposed to using the regulations, which are made without parliamentary scrutiny.

The lawsuit argued there was no power to refuse a citizen the right to enter the country, saying immigration laws provided for foreigners with infectious diseases being barred entry, but not locals.

In her affidavit, Clairmont said fellow stranded citizens started a GoFundMe account to raise the $33,000 she needed to travel to Barbados before coming to TT.

A part-time Unemployment Relief Programme (URP) worker, she claimed the situation also affected her financially, as her husband had to leave his job as a security guard to care for their children in her absence. She also said furniture she had bought on hire purchase was repossessed.

She had been stuck in the British Virgin Islands after going to visit her brother at the end of January. She was scheduled to return home on March 24 – two days after TT’s borders were closed. She was three months pregnant, but miscarried in the BVI.

She eventually returned home last September .