A High Court Judge has suggested that there should be no objection to some Parliamentary oversight in evolving measures to address the COVID-19 pandemic.
Delivering a judgement in two cases challenging the Public Health Ordinance and corresponding ongoing Regulations, yesterday Justice Ronnie Boodoosingh generally upheld the current measures but ruled that the aspects which criminalise certain activity at places of worship are unlawful.
Boodoosingh noted that the regulations create an offence for failing to abide by the Ministry of Health’s guidelines for places of worship, which in turn does not adequately define what constitutes a breach.
“That in itself puts someone in peril of being brought to court to answer an uncertain offence,” Boodoosingh said.
He suggested that the required definitions should be placed in the regulations.
“Certainty and clarity are more likely to be so satisfied,” he said.
Breaches under the regulations carry a maximum penalty of a $50,000 fine and up to six months in prison if convicted but exact penalty will be determined by judicial officers based on the unique circumstances of the case.
While Boodoosingh noted that his judgement was mostly a legal victory for the Government, he said that it should not empower it to widen the scope of the measures with criminal sanctions for non-compliance, without involving Parliament.
“This decision should therefore not be taken as encouragement to expand the areas of law where regulations made by the executive restrict rights and freedoms of individuals without Parliamentary scrutiny or without considering whether a special (majority) is needed,” Boodoosingh said.
He went on: “It cannot become a norm for laws, in my view, especially with significant penalties attached, to be made without Parliamentary input.”
In one of the cases pundit Satyanand Maharaj, who was never arrested for a breach, was claiming that the regulations restricted his constitutional right to freedom of conscience and religious belief and observance.
The other was brought by Dominic Suraj, Marlon Hinds, Christopher Wilson, Bruce Bowen, and Collin Ramjohn, who were arrested at Alicia’s Guest House in St Ann’s on April 9 and charged under the regulations for gathering in a group of more than five.
All except Ramjohn claimed to have been doing charity work by cooking a meal for a group of Venezuelan friends, who were in need.
Ramjohn, a fisherman, claimed he went to collect money for a car he rented to a friend, who works at the establishment.
In the judgement, Boodoosingh noted that he was not required to analyse their claims over their arrests as they are still facing the charges.
“It is not for me at this stage to examine their defence or pronounce on it,” Boodoosingh said.
In the cases, Boodoosingh said that the regulations conformed with the colonial-age ordinance and were warranted in the current global circumstances.
“It seems to me that Public Health Regulations to prevent the spread of infectious and dangerous disease fall within the narrow compass of exceptional laws which permit a minister leeway to restrict certain of the rights and freedoms under the Constitution,” he said.
He also suggested that the group that was charged could challenge whether police misapplied the regulations when their cases come up for trial.
“Nothing prevents them from challenging the conduct of the police,” Boodoosingh said.
He also noted that variation of the regulations based on fluctuations in the situation locally over the past few months demonstrated that consideration was being given to the impact on citizens.
In Maharaj’s case, Boodoosingh rejected his claim that the regulation infringed on his right to worship.
“There are restrictions on gathering of persons, but there is nothing that strikes at the core of his freedom to practice religion. He has to do it in the physical company of fewer persons,” he said.
While the group that was charged lost their claim, Boodoosingh only ordered them to pay half of the State’s legal costs for defending the lawsuit as it was not frivolous and raised important issues of public interest.
The State was ordered to pay half of Maharaj’s legal costs as he was partially successful.
The claimants were represented by Anand Ramlogan, SC, Reunka Rambhajan, Douglas Bayley, Jared Jagroo, Che Dindial, Ganesh Saroop, and Vishaal Siewsaran.
Reginald Armour, SC, Rishi Dass, Raphael Ajodhia, Svetlana Dass, Savi Ramhit, Diane Katwaroo, and Lianne Thomas represented the State.