Privy Council reserves decision on challenge to public health regulations

FIVE Privy Council judges have reserved their ruling on two challenges against the Government’s public health regulations.

On Wednesday, at the resumption of the hearing which began on Monday, Lords Reed, Briggs, Sales, Hamblen and Lady Rose said they will take time to consider their judgment in what were important appeals.

At Monday’s hearing, the judges heard from attorneys representing the State and five men who were arrested at Alicia’s Guest House on April 9, 2020, and charged under regulations that limited gatherings to groups of no more than five people.

On Wednesday, they also heard from the State and attorneys for Pundit Satyanand Maharaj, who challenged the regulations on the basis that the prohibition on gatherings did not apply to religious gatherings and was vague and uncertain, as it criminalised breaches of the guidelines for places of worship.

In September 2020, then High Court judge Justice Ronnie Boodoosingh dismissed the challenge of Dominic Suraj and the others, while partially upholding Maharaj’s challenge involving the regulations over criminal sanctions for breaches related to places of worship.

In April 2021, the Court of Appeal, comprising Chief Justice Ivor Archie and Justices of Appeal Mira Dean-Armorer and James Aboud, dismissed the appeal of the five men, ruling that the regulations passed under the colonial-age Public Health Ordinance (PHO) were not unconstitutional.

Dean-Armorer, who wrote the judgment, said the regulations were sufficiently clear. The court also upheld a counter-appeal brought by the Office of the Attorney General to Maharaj’s challenge, reversing Boodoosingh’s decision on the issue.

In its ruling, the Court of Appeal held the decades-old public health ordinance was protected by the Constitution, and the regulations made under it were also protected from challenge by the savings clause, which insulates colonial legislation from review except by Parliament.

The hearings on both days were held in hybrid mode, with Anand Ramlogan, SC, who represents Suraj and the others, appearing from his chambers in Trinidad. Also representing the group are Peter Knox, QC, who was in the UK, Vishal Siewsaran, Adam Riley and Ganesh Saroop.

Appearing for the State are Thomas Rowe QC, Fyard Hosein, SC, Adaam Hosein and Natasha Jackson and John Almeida, all of whom were at the Supreme Court in the United Kingdom.

Ramlogan’s argument was that the regulations were inconsistent with the fundamental human rights protected by the Constitution, including the right to respect for private and family life and freedom of movement.

Knox argued on Wednesday that an unsupervised power to pass stringent regulations without parliamentary supervision was inconsistent with the notion of parliamentary sovereignty, adding that the minister was accountable to the Parliament. He said as it stood, the minister had too much power, and any interference with the rights afforded by the Constitution must be reasonable.

It is the State’s contention, argued by both Rowe and Hosein, that the minister had the power under the ordinance to make the regulations and this right was saved by the Republican Constitution. Hosein said if the ordinance was saved, then the minister’s power to make regulations under the ordinance must also be saved, otherwise it would make nonsense of the ordnance.

On Monday, Rowe said in the present case, everyone agreed that the minister had the power to make the regulations, as there was no challenge that it was ultra vires.

He said the appellants’ challenge could not be sustained unless the reason the minister could not make the regulations was that he did not have the power to do so.

“But he had the power, when you look at the 1940 ordinance, and once that has been accepted, it must be constitutional. Has he lost that power? And how did he lose the power he had up until the new Constitution? Section 6 (of the Constitution) protects existing law, and this precludes section 4 from nullifying existing law,” Rowe countered.

This is one of at least four cases in which the savings-law clause is being challenged.