Minister of Health et al v Howe et al - Court of Appeal Judgement PDF

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT VINCENT AND THE GRENADINES SVGHCVAP2023/0003 BETWEEN: THE MINISTER OF HEALTH AND THE ENVIRONMENT THE PUBLIC SERVICE COMMISSION...

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL SAINT VINCENT AND THE GRENADINES SVGHCVAP2023/0003 BETWEEN: THE MINISTER OF HEALTH AND THE ENVIRONMENT THE PUBLIC SERVICE COMMISSION THE COMMISSIONER OF POLICE ATTORNEY GENERAL POLICE SERVICE COMMISSION Appellants and SHANIEL HOWE NOVITA ROBERTS CAVET THOMAS ALFONZO LYTTLE BRENTON SMITH SYLVORNE OLLIVER SHEFFLORN BALLANTYNE TRAVIS CUMBERBATCH ROHAN GILES Respondents Before: The Hon. Mr. Eddy D. Ventose Justice of Appeal The Hon. Mr. Paul Webster Justice of Appeal [Ag.] The Hon. Mr. Gerhard Wallbank Justice of Appeal [Ag.] Appearances: Mr. Anthony Astaphan SC with him Ms. Karen Duncan, Mrs. Cerepha Harper- Joseph and Ms. Franeek Joseph for the First, Third and Fourth Appellants Mr. Grahame Bollers for the Second and Fifth Appellants Mrs. Cara Shillingford-Marsh, Mr. Jomo Thomas and Ms. Shirlan Barnwell for the Respondents _______________________________ 2024: May 2; 2025: February 12. _______________________________ 1 Civil Appeal - COVID-19 pandemic – Rule 8 of the Public Health (Public Bodies Special Measures) Rules 2021 (“Special Measures”) – COVID-19 vaccine mandate – All employees identified in the Schedule to the Special Measures were to be vaccinated - Unvaccinated public and police officers not to enter workplace – Regulation 31 of the Public Service Commission Regulations – Section 73A of the Police Act - Respondents deemed to have vacated their posts by being absent for 10 continuous working days - Whether Rule 8 of the Special Measures is unlawful and or unconstitutional and void – Whether Minister of Health failed to act on the advice of the Chief Medical Officers in promulgating the Special Measures as required by section 43B of the Public Health Act – Whether Minister of Health usurped the functions of the Public Service Commission in making Rule 8 - Pensions benefit - Whether Rule 8 contravened the respondents’ constitutional rights to protection from deprivation of property and protection of pension right – Proportionality test – Whether the termination measure should be found unlawful on account of being disproportionate - Natural justice – Procedural fairness - Whether the Commission, the Police Service Commission and the Commissioner of Police acted unlawfully and contrary to the rules of natural justice in failing to give the respondents an opportunity to be heard before issuing the letters to the respondents – Whether the Minister of Health in making Rule 8 usurped the authority of the Commission, the Police Service Commission and the Commissioner of Police to make rules governing the appointment and termination of their employees – Whether the COVID-19 (Miscellaneous Amendments) Act is unconstitutional for contravening the separation of powers doctrine. In the year 2020, the world was thrown into a tailspin. The World Health Organisation declared the outbreak of the novel coronavirus SARS-CoV-2 (“COVID-19”) to be a pandemic. Saint Vincent and the Grenadines (“SVG”), like many other Commonwealth Caribbean states and countries in the world, was not spared. By March 2020, SVG was caught up in the ravages of the COVID-19 pandemic. Many persons were falling gravely ill, being hospitalised, and in many cases dying. There was disruption to society and the economy. In response to the COVID-19 pandemic, to prevent the spread of the COVID-19 virus, serious hospitalisation and to save lives, the Parliament of SVG enacted various laws and implemented measures and protocols to deal with the public health emergency as deemed necessary by the public health officials from time to time. In April 2020, the Parliament passed the COVID-19 (Miscellaneous Amendments) Act, 2020 (the “Amendments Act”) which gave to the Minister the power to modify by Order any existing law by amending the Schedule to the Amendments Act. Also in April 2020, the Parliament amended the Public Health Act. The amendments, among other things, empowered the Minister of Health, Wellness and the Environment (the “Minister of Health”) on the recommendation of the Chief Medical Officer (the “CMO”) to pass or implement special measures to mitigate or remedy the public health emergency. In December 2020, the Minister of Health declared a public health emergency for SVG caused by the COVID-19 pandemic. In October 2021, the Minister of Health promulgated the Public Health (Public Bodies Special Measures) Rules, 2021 (“the Special Measures” or “SR&O 28”). The Special Measures, among other things, required frontline public officers to be vaccinated (Rule 5) unless they were exempted on medical or religious grounds (Rule 7). Those public officers to whom Rule 5 applied and who 2 failed to comply without reasonable excuse, were not to enter the workplace and were to be treated as being absent without leave (Rule 8(1)). Regulation 31 of the Public Service Commission Regulations which speaks to abandonment of office was to apply to the public officers to whom Rule 8(1) applied (Rule 8(2)). In November 2021, the Police Act was also amended to insert a new section 73A which provides for the application of Rule 8 of the Special Measures to the Royal Saint Vincent and Grenadines Police Force and contains provisions similar to Regulation 31. The respondents were healthcare workers, teachers, police officers, and other public officers to whom Rule 5 applied. The respondents did not take the COVID-19 vaccine as required by Rule 5, so they were unable to lawfully attend work while unvaccinated as mandated by Rule 8. The medical exemption found in Rule 7 did not apply to them and where the religious exemption only applied to some, the employer was not able to make suitable arrangements to accommodate them elsewhere in the public service. By failing to comply with Rule 5, the respondents ceased to be public officers by the application of Rule 8 and Regulation 31. Consequently, the Public Service Commission (“the Commission”), the Police Service Commission, and the Commissioner of Police wrote to all the respondents, except one, informing them that they were deemed by operation of law to have resigned from their offices which became vacant and that they ceased to be public officers. The respondents denied that they had abandoned their jobs and claimed that they reported to work but were prevented from fulfilling their duties. Consequently, the respondents pursuant to leave previously granted by the learned trial judge brought constitutional and judicial review proceedings in the High Court challenging legislation made by the Parliament of SVG, and rules and decisions made by the appellants in response to the COVID-19 pandemic. After a trial in the High Court, the learned High Court judge ruled in the respondents’ favour. The learned trial judge in a judgment dated 13th March 2023 declared as unlawful, unconstitutional, and void, various rules, regulations, legislation passed, and decisions made, by officials in the Government and by the Parliament of SVG in response to the COVID-19 pandemic. The appellants, dissatisfied with the judgment of the High Court, appealed. The respondents resisted the appeal. The following issues arose for consideration in the appeal based on the grounds of appeal: (i) whether Rule 8 of the Special Measures was unconstitutional and or unlawful because: (a) the Minister of Health did not act on the advice or recommendation of the CMO as required by section 43B of the Public Health (Amendment) Act in making Rule 8; (b) in making Rule 8, the Minister usurped the functions of the Commission under sections 77(13) and 78(1) of the Constitution; and (c) Rule 8 contravened the respondents’ constitutional rights under sections 6 (protection from deprivation of property) and 88 (pension law and protection of pension right) of the Constitution; (ii) whether the Commission, the Police Service Commission and the Commissioner of Police: (a) acted unlawfully and contrary to the rules of natural justice in failing to give the respondents an opportunity to be heard before issuing the letters to the respondents; and (b) contravened sections 77(12) and 84(6) and (7) of the Constitution by acting under the directions of the Minister of Health; and (iii) whether the Amendments Act is unconstitutional for contravening the separation of powers doctrine. Held: (Per Ventose JA and Webster JA [Ag.], Wallbank JA [Ag.] dissenting) allowing the appeal and setting aside the declarations, orders of certiorari, order for costs, and other 3 orders and directions for assessment of damages made by the learned judge, and making no order as to costs in the court below and on the appeal, that: 1. An appellate court ought first to be satisfied that the trial judge was ‘plainly wrong’ before interfering with the trial judge’s findings of fact or his or her evaluations of facts. In the case at bar, the trial judge’s finding that the Minister of Health acted ultra vires in that he did not as a matter of fact act on the advice of the CMO in making Rule 8, is contrary to the uncontroverted evidence of the CMO and the Minister of Health. There was no cross examination of either the Minister of Health or the CMO on this issue which meant there was no basis for the learned trial judge to reject the evidence of the CMO and the Minister of Health. Furthermore, the advice of the CMO was only relevant to the first part of Rule 8(1), that is, that an employee who without reasonable excuse fails to comply with Rules 4 or 5 must not enter the workplace. No such advice was required from the CMO before the Minister of Health could include the second part of Rule 8(1) and Rule 8(2) in the Special Measures. The second part of Rule 8(1) states that an unvaccinated public officer who cannot enter the workplace will be deemed absent from duty without leave and, Rule 8(2) merely states that Regulation 31 applies to such a public officer. These could not be and were not part of the advice given by the CMO to the Minister of Health. Regulation 31 would in any event apply to unvaccinated public officers to whom the first part of Rule 8(1) applied. Rule 8 of the Public Health (Public Bodies Special Measures) Rules, 2021, Act No. 28 of 2021 considered; Regulation 31 of the Public Service Commission Regulations SR&O No. 48 of 1969 as amended, considered; Shaista Trading Company Limited d.b.a. Diamond Republic v First Caribbean International Bank (Barbados) Ltd ANUHCVAP2018/0021 (delivered 26th April 2021, unreported) followed; Biogen Inc v Medeva Plc RPC 1 applied. 2. For those rules that were not made on the advice of the CMO as per section 43B of the Public Health Act, the Minister had the lawful power to make them under section 147 of the Public Health Act. Section 147 states that the Minister shall have power ‘to make rules generally for the carrying out of the purposes of this Act’. There can be no doubt that the Special Measures, including Rules 8(1) and 8(2), were properly made by the Minister pursuant to section 147 of the Public Health Act. In addition, having regard to section 39 of the Interpretation and General Provisions Act, the Minister in any event has the implied power to enforce compliance with the requirement under Rule 8 that public officers must not enter the workplace while unvaccinated. This is a basis founded in law that grounds the powers of enforcement of the Minister. The learned trial judge was therefore wrong to conclude that Rules 8(1) and 8(2) are unlawful, unconstitutional, and void on this basis. Sections 147 and 43B of the Public Health Act, Cap 300 of the Laws of Saint Vincent and the Grenadines, as amended by the Public Health (Amendment) 4  Act, 2020 considered; Section 39 of the Interpretation and General Provisions Act Cap 14 of the Revised Laws of Saint Vincent and the Grenadines, 2009. 3. Section 77(13) of the Constitution provides that in the exercise of its functions the Commission shall not be subject to the direction or control of any person or authority. Section 78(1) gives the Commission the power to appoint, discipline, and remove persons who hold or act in offices in the public service. It is clear that these powers are vested exclusively in the Commission. The critical aspect of Rule 8 is that an employee who without reasonable excuse fails to comply with Rules 4 or 5 must not enter the workplace. The words in Rule 8(1) ‘and is to be treated as being absent from duty without leave’ merely reflect a fact that would exist if an employee failed to get vaccinated and was unable to enter the workplace to fulfil their contractual obligations for ten days or more. Moreover, Rule 8(2) merely makes clear the application of Regulation 31 to Rule 8(1). Rule 8 does not usurp any of the functions of the Commission and the learned trial judge also erred in finding that it did. Sections 77(13) and 78(1) of the Constitution of Saint Vincent and the Grenadines Cap 10 of the Revised Laws of Saint Vincent and the Grenadines, 2009 considered; Thomas v Attorney-General of Trinidad and Tobago A.C. 113 followed. 4. Section 88 of the Constitution protects the pension benefits of persons who are entitled by law to a pension from any change in law that affects the grant of such pension benefits, or any law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended, and the law regulating the amount of any such benefits. The only constitutional right that is protected by section 88 is a pension to which a person is lawfully entitled. This Court has made plain that in order for pension benefits to be protected as a property right under section 6 of the Constitution of SVG, the applicant must either qualify for or be entitled to the pension benefit as a matter of law. Therefore, assuming the respondents are correct in their assessment that a person who has abandoned their office under Regulation 31 would not be eligible for a pension, there would be no deprivation of any property because that deprivation would arise from a lack of qualification or entitlement to the pension benefit. The fact that a person may fall generally under a category of persons who are not entitled to a pension under the pensions law, assuming this to be true, cannot be a basis for a finding that the law is unconstitutional for creating the circumstance within which a person may fall that would disentitle them to a pension. Sections 6 and 88 of the Constitution of Saint Vincent and the Grenadines Cap 10 of the Revised Laws of Saint Vincent and the Grenadines, 2009 considered; Elvis Daniel et al. v Public Service Commission et al SVGHCVAP2016/0007 (delivered 29th January 2019, unreported) considered. 5 5. In the case at bar, there was no evidence that any of the respondents had earned the right to a pension that is protected under section 88 of the Constitution. In other words, the respondents had not shown that they had qualified for or were otherwise entitled by law to (and had lost) any pension benefits. Since the respondents have not provided any evidence of any ‘pension benefit’ which is protected by section 88 of the Constitution, they are therefore not able to establish that any ‘property right’ protected by section 6 of the Constitution. Further, there is nothing in Rule 8 which regulates in any way the ‘pension benefit’ to which section 88 refers such that the respondents’ right to property in the ‘amount of such benefits’ have been contravened contrary to section 6 of the Constitution relating to protection from deprivation of property. Consequently, section 6 of the Constitution cannot be invoked to challenge the constitutionality of Rules 8(1) and 8(2). However, this does not prevent an affected employee from applying to the Government for their vested pension entitlements in accordance with the pensions laws of SVG. Once that legal entitlement is determined (as of the date of the deemed resignation), the relevant party must simply comply and apply in the normal way for any pension that is due to them from the date of the deemed resignation of any of the respondents. 6. In determining whether a law or measure infringes any of the fundamental rights or freedoms in Caribbean Constitutions, the proportionality test is used. In applying this test, it is necessary to determine: (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. When the proportionality test is applied to Rule 8(1) and Rule 8(2), both of which incorporate directly and indirectly Regulation 31 and section 73A of the Police Act, having regard to all the circumstances and the uncontradicted evidence of the appellants, including the evidence of the CMO, bearing in mind the seriousness and severity of the COVID-19 pandemic, the nature of the COVID- 19 virus and the ever changing variants, the emergence of COVID-19 vaccines that would prevent the spread of the COVID-19 virus and assist in preventing severe illness, hospitalisations and any loss of life of residents, particularly children, the elderly and those persons who were immunocompromised, Rule 8 was plainly a proportionate means of protecting the public health interest in the circumstances of a dangerous COVID-19 virus. For these reasons, the respondents’ claim for constitutional relief fails in limine and should have been rejected by the learned trial judge. de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing 3 WLR 675 followed ; Huang v Secretary of State for the Home Department 2 AC 167 followed; Bank Mellat v Her Majesty's Treasury (No 2) AC 700 followed; Suraj and others v Attorney General of Trinidad and Tobago and Maharaj v Attorney General 6  of Trinidad and Tobago AC 337 followed; GF v Minister of COVID-19 Response NZHC 2526 considered. 7. The issue of natural justice does not arise on the operation of Regulation 31 because the deeming of an officer to have resigned from his office is triggered immediately by that officer absenting himself from duty without leave for a continuous period of ten working days. The consequence occurs automatically on the occurrence of the triggering event. The issue in question is whether Regulation 31 satisfies the requirements of fairness. The insertion of the words ‘unless declared otherwise by the Commission’ in Regulation 31 allows the Commission to hear the officer, either in writing or orally, who can then explain to the Commission why the consequences of Regulation 31 should not apply to him or her. This provision in Regulation 31 allows for any person who is deemed to have abandoned his or her office by the operation of the regulation to seek to have the Commission subsequently modify its decision. None of the respondents made any request to the Commission for a review of their case. Having not availed themselves of the option of seeking from the Commission a modification of the communication concerning their abandonment of their offices, the respondents cannot now argue that there was a breach of natural justice. Felix DaSilva v Attorney General of Saint Vincent and the Grenadines et al Suit No. 356 of 1989 (delivered 31st July 1997, unreported) considered; R v Secretary of State for the Home Department, ex p. Doody UKHL 8 (24th June 1993) applied; Endell Thomas v Attorney-General of Trinidad and Tobago AC 113 considered. 8. It cannot be said that either the Commissioner of Police or the Commission acted on the authority of the Minister of Health in applying Regulation 31 which was only triggered by non-compliance with Rule 8 by the officers to which it was applicable. The application of Regulation 31 in the case of any officer does not involve acting on the instructions of, or the dictates of, neither the Commissioner of Police nor the Chair of the Commission. Rule 8 was not a directive by the Minister of Health to the Commission or the Police Service Commission. The Commission, in issuing letters reflecting the deeming effect of Regulation 31, namely, that the officer is deemed to have resigned their office and that their office becomes vacant and that the officer ceases to be an officer, was doing no more than communicating the effect of Regulation 31. It was a directive to public and police officers concerning their terms and conditions of employment. The Executive was merely laying down additional terms of service for public officers and police officers pursuant to their contracts of employment. There was no control by the Minister of Health or anyone else of any of the functions of the Commission or the Police Service Commission. The learned trial judge was wrong to conclude that the letters issued to the respondents for breaching Regulation 31, for failing to comply with Rule 8, contravened sections 77(12), 77(13), 84(6) and 84(7) of the Constitution. 7  Endell Thomas v Attorney-General of Trinidad and Tobago AC 113 followed. 9. The separation of powers doctrine is a fundamental pillar of constitutional law in the Commonwealth Caribbean. This Court has made clear that for any delegation of legislative power to be lawful the legislature must retain effective control over the delegated power by either: (1) circumscribing the power; or (2) by prescribing guidelines or a policy for the exercise of the power. In the context of the COVID- 19 pandemic, the Amendments Act was made during a period of emergency for the purpose of delegating authority on the Minister to amend certain laws to swiftly respond to the ever-changing and fluid COVID-19 pandemic. Parliament retained control by: (1) restricting the application of the Amendments Act to responses to the COVID-19 pandemic, and (2) confining the Minister’s power to amend laws for the sole purpose of responding to the COVID-19 pandemic. Only on a strained reading of the Amendments Act could one conclude that the Legislature gave the Minister of Health the power to amend laws passed by Parliament carte blanche. It would rather be contrary to common sense if such a power could not be delegated in such a time of a public health emergency and serious danger, subject to Parliamentary control, that was occasioned by the onset of the COVID-19 pandemic. These factors constitute sufficient Parliamentary control for the purpose of circumscribing the power delegated to the Minister by Parliament. The learned trial judge was wrong to hold that the Amendments Act was unlawful for contravening the separation of powers doctrine. Section 2(2) of the COVID-19 (Miscellaneous Amendments) Act, Act No. 5 of 2020 considered; J. Astaphan and Co. (1970) Ltd v the Comptroller of Customs and The Attorney General of the Commonwealth of Dominica Civil Appeal No. 8 of 1994 (delivered 28th May 1996, unreported) followed; Kwok Wing Hang & Ors v Chief Executive in Council and another HKCFA 42 applied. Per Wallbank JA [Ag.] (dissenting): 10. Abandonment of employment is a voluntary relinquishment of the employment through non-user with the actual or imputed intention on the part of the office holder to abandon and relinquish that office. The combined effect incorporating Regulation 31 by way of Rule 8(2) and the deeming provision in Rule 8(1) was to redefine what had been considered ‘abandonment of office’. It was not simply the case of the Minister merely repeating what was already the law. The deeming provision was not ‘mere surplusage’ neither was the inclusion of reference to Regulation 31 in Rule 8(2). It was a new measure that changed the meaning of a legal concept. In laying down that an officer who has not taken the vaccine and who has not presented proof of vaccination ‘is to be treated as being absent from duty without leave’, Rule 8(1) had the effect of disapplying the common law criteria for abandonment of office, including the requirement that absence should be voluntary. Rule 8(1) has the effect of imposing a completely different set of artificial criteria for resignation from employment through abandonment and 8  overrides the well and long-established law as to what constitutes abandonment of employment, as a form of resignation. 11. Moreover, the prohibition in Rule 8(1) from entering the workplace does not automatically entail absence from duty. Whether or not such an officer indeed went absent from duty without leave is a question of fact within the context of the particular case. In this case, the evidence showed that although restricted from entering the workplace the respondents continued to perform their duties until they received their letters of termination. It was not the failure to present themselves for work, but non-vaccination, that earned the respondents their termination letters. Similarly, Regulation 31 would not ‘automatically’ apply to unvaccinated public officers to whom the first part of Rule 8(1) applied had it not been inserted in Rule 8(2), because mere non-vaccination and inability to show proof of vaccination, and prohibition to enter the workplace, do not of themselves equate to absence from duty without leave. Huggins Neal Nicholas v Attorney General & The Teaching Service Commission St Lucia Civil Appeal HCVAP 2008/018 (delivered 22nd March 2010, unreported) followed; Seetohul v Omni Projects Ltd UKPC 5 distinguished. 12. The application of SR&O 28 did not offend against the right to a fair hearing within a reasonable time pursuant to section 8(8) of the Constitution. That is because, in taking the entire procedure of the application of SR&O 28 as a whole, the respondents did not avail themselves of the entirety of the in-built opportunity to be heard. The respondents were not precluded from making representations to the Commissions, which could have changed the overall result after they received their termination letters. However, the Public and Police Service Commissions’ decision-making process was flawed in that they prejudged the factual issue of whether the respondents, in each individual case, had a reasonable excuse for non-vaccination against them, without affording the respondents an opportunity to be heard. Those bodies simply assumed from the fact of non-vaccination that the respondents had no reasonable excuse. It was not open to them to state unconditionally and definitively, as they did, that the employees had no reasonable excuse when those bodies did not know and could not have known that without conducting an inquiry into the fact-specific question and without affording the respondents an opportunity to be heard before pronouncing their decision. This was inherently a breach of fundamental principles of natural justice and rendered the decisions of the Public and Police Service Commissions void and of no effect. Bank Mellat v Her Majesty's Treasury (No. 2) UKSC 39 applied; Ridge v Baldwin et al AC 40 applied. 13. There is no scope for the court below, or this Court, to consider the proportionality of the measure introduced by Rule 8 of SR&O 28 divorced from the protection of a fundamental right. The four-step proportionality test cannot 9  be used without reference to a fundamental right. Pension rights are a form of personal property protected under section 6 of the Constitution. Loss of the respondents’ pension rights was a form of deprivation of property without compensation, triggering the court’s powers of intervention because a constitutionally protected right is arguably being infringed. The uncontradicted evidence is that the respondents’ deemed resignation deprived them of their accrued entitlement to be paid a public service pension, i.e. that their deemed resignations cancelled their accrued pension entitlements. That evidence of the respondents could have been contradicted by the appellants with reference to factual matters (i.e. evidence) and/or the law on pensions, but it was not. The Court therefore has sufficient jurisdiction to consider the proportionality of the impugned termination measure in so far as it affected those respondents who had accrued pension rights. Elvis Daniel et al v Public Service Commission et al SVGHCVAP2016/0007 (delivered 29th January 2019, unreported) followed. 14. The impugned termination measure in the present case, i.e. giving public and police service employees an ultimatum that if they did not get vaccinated, they would lose their jobs, was draconian. It deprived employees of their employment, of their livelihoods for themselves and their dependents, of their financial benefits, socially marginalised them and traumatised them. There were less intrusive measures which could have been used without unacceptably compromising the objective of SR&O 28. 15. Section 6 of the Constitution permits limitation of property rights but draws the line that if property rights are removed, then adequate compensation within a reasonable time must be paid. That line is absolute and cannot be crossed. There is no evidence the Government intended to compensate any of those terminated for loss of their pension rights. The impugned termination measure therefore crossed the line drawn by section 6 of the Constitution, was too intrusive, and consequently was inherently disproportionate. Additionally, SR&O 28 already contained an adequate solution to achieve the stated legislative purpose. Two such measures were already included in SR&O 28 itself – prohibition from entering the workplace and disciplinary action in misconduct for failure to comply with that prohibition. The addition of the impugned termination measure exceeded what was necessary and did not strike a fair balance between the rights of the individual and the interests of the community. For all these reasons, the decisions made by the Public and Police Service Commissions to treat the respondents as having resigned their positions pursuant to SR&O 28 were void and of no effect. de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing 3 WLR 675 followed; Bank Mellat v Her Majesty's Treasury (No. 2) UKSC 39 applied; Suraj and others v Attorney General of Trinidad and Tobago AC 337 followed. 10  JUDGMENT VENTOSE JA: This is an appeal against the decision of the learned trial judge dated 13th March 2023 in which she declared as unlawful, unconstitutional, and void various rules, regulations, legislation passed, and decisions made, by officials in the Government and by the Parliament of Saint Vincent and the Grenadines to contain the spread of the novel coronavirus (SARS-CoV-2) (the “COVID-19 virus”) and to preserve the life and health of the residents and citizens of the State of Saint Vincent and the Grenadines. The Constitution of Saint Vincent and the Grenadines (the “Constitution”),1 like the constitutions of other Commonwealth Caribbean states, establishes the three branches of Government, namely the Executive, Parliament, and the Judiciary, each with its own functions and responsibilities in the constitutional democracy that is approaching its 45th anniversary this year. The limits of those functions were tested in the period commencing in or around March 2020 with the onset of the COVID-19 pandemic that brought the world to its knees, damaged economies, and not to mention the significant loss of life of approximately 7 million worldwide with approximately 700,000,000 persons contracting the COVID-19 virus over the globe. To say the world was not prepared for a pandemic would be a gross understatement. Commonwealth Caribbean states with limited financial or other resources had to ensure that they did the best they could to save the lives of all citizens, particularly the elderly, children and those who were immunocompromised. In the early stages of the COVID-19 pandemic, there was no vaccine, and the race had started for one to be developed, providing the only hope to ensure that hospitalisations and contraction of the COVID-19 virus were kept low and that lives were saved, and that some semblance of normality would eventually return to the society and economy. 1 Cap 10 of the Revised Laws of Saint Vincent and the Grenadines 2009. 11  Background The respondents, who were the claimants in the court below, were healthcare workers, teachers, police officers, and other public officers. Saint Vincent and the Grenadines was no exception to the loss of life and the disruption to society and the economy caused by the COVID-19 pandemic. In response to the COVID-19 pandemic, to prevent the spread of the COVID-19 virus, and serious hospitalisation and to save lives, the Parliament of Saint Vincent and the Grenadines enacted various laws and implemented measures and protocols to deal with the public health emergency as deemed necessary by the public health officials from time to time, to deal with the ever-changing public health emergency. In April 2020, the Parliament passed the COVID-19 (Miscellaneous Amendments) Act, 20202 (the “Amendments Act”) which gave the Minister the power to modify by Order any existing law by amending the Schedule to the Amendments Act. Also in April 2020, the Parliament amended the Public Health Act.3 The amendments, among other things, empowered the Minister of Health, Wellness and the Environment (the “Minister of Health”) on the recommendation of the Chief Medical Officer (the “CMO”) to declare that a public health emergency exists in Saint Vincent and the Grenadines if the CMO believes this is the case and that it cannot be mitigated or remedied without the implementation of special measures (section 43B(1) of the Public Health Act). In December 2020, the Minister of Health, acting on the advice and recommendations of the CMO and pursuant to section 43B(1) of the Public Health Act published the Public Health Emergency (Declaration) Notice, 20204 in the Official Gazette in which he declared a public health emergency for Saint Vincent and the Grenadines caused by the COVID-19 pandemic. The disruption to the society and economy included disruption to public services, including in the health sector, the police force, and the education sector. Consequently, in October 2021, the Minister of Health 2 Act No. 5 of 2020. 3 By virtue of the Public Health (Amendment) Act, 2020, Act No. 6 of 2020. 4 SR&O No. 38 of 2020. 12  promulgated the Public Health (Public Bodies Special Measures) Rules, 20215 (the “Special Measures”) pursuant to section 43B(2) and section 147 of the Public Health Act. In the preamble to the Special Measures, it is expressly stated as follows: “NOW THEREFORE, IN EXERCISE of the powers conferred by sections 43B and 147 of the Public Health Act, Chapter 300, the Minister makes the following Rules –” The power to make the Special Measures was stated expressly by the Minister to be made by the powers conferred on him by both section 43B of the Public Health Act and section 147 of the Public Health Act,6 which provides as follows: “General power to make rules. 147. The Minister shall have power to make rules generally for the carrying out of the purposes of this Act.” Section 43B of the Public Health Act provides as follows: “43B. (1) Where the Chief Medical Officer believes that a public health emergency exists in Saint Vincent and the Grenadines and believes that the public health emergency cannot be mitigated or remedied without the implementation of special measures under this section, the Chief Medical Officer shall recommend to the Minister that a public health emergency be declared for all or part of Saint Vincent and the Grenadines and the Minister may, by Notice, declare a public health emergency for all or part of Saint Vincent and the Grenadines. (2) Where the Minister has declared a public health emergency, the Minister, on the advice of the Chief Medical Officer, may implement special measures to mitigate or remedy the emergency including – …” The Special Measures, among other things, required frontline public officers to be vaccinated (Rule 5) unless they were exempted on medical or religious grounds (Rule 7). Those public officers to whom Rule 5 applied and who failed to comply without reasonable excuse, were not to enter the workplace and were to be treated as being absent without leave (Rule 8(1)). Regulation 31 of the Public Service Commission Regulations7 which speaks to abandonment of office was to apply to 5 SR&O No. 28 of 2021. 6 Act No. 9 of 1977. 7 SR&O No. 48 of 1969 as amended. 13  the public officers to whom Rule 8(1) applied (Rule 8(2)). In November 2021, the Police Act8 was also amended to insert a new section 73A which provides for the application of Rule 8 of the Special Measures to the Royal Saint Vincent and Grenadines Police Force and contains provisions similar to Regulation 31. The respondents did not take the COVID-19 vaccine as required by Rule 5, so they were unable to lawfully attend work while unvaccinated as mandated by Rule 8. The medical exemption found in Rule 7 did not apply to them and where the religious exemption only applied to some, the employer was not able to make suitable arrangements to accommodate them elsewhere in the public service. By failing to comply with Rule 5, the respondents ceased to be public officers by the application of Rule 8 and Regulation 31. Consequently, the Public Service Commission, the Police Service Commission, and the Commissioner of Police wrote to all the respondents, except one, informing them that they were deemed by operation of law to have resigned from their offices which became vacant, and that they ceased to be public officers. The respondents denied they had abandoned their jobs and claimed that they reported to work but were prevented from fulfilling their duties. Consequently, the respondents pursuant to leave previously granted by the learned trial judge brought constitutional and judicial review proceedings in the High Court challenging legislation made by Parliament, and rules and decisions made by the appellants in response to the COVID-19 pandemic. The context of the issues raised in this appeal is aptly described by the learned trial judge as follows: “ The claimants have outlined certain details about the financial, emotional and psychological hardship they and their families have endured since they were deemed to have resigned their offices. In a word, it has not been easy for any of them. However, their contention that they were forced to take the Covid vaccine does not accord with reality. The very reason why this case is ongoing is because they elected not to take the vaccine as a matter of principle or conscience related to their claim to bodily autonomy and that the ‘vaccine mandate’ in the Special Measures SR&O was illegal and unconstitutional. The fact that they declined to take it is itself 8 Cap 391 of the Revised Laws of Saint Vincent and the Grenadines, as amended. 14  evidence that they retained the choice to opt out of taking it, albeit being fully aware of the stated consequences which were operationalized by the Minister, the PSC, the Police SC and the COP.” (Emphasis added) The decision of the court below The learned trial judge in a lengthy written judgment dated 13th March 2023 found in favour of the respondents on most of their grounds of challenges. The learned trial judge held, among other things, that: (1) the Amendments Act was unconstitutional because it contravened the separation of powers doctrine by giving the Minister limitless legislative authority to arbitrarily or otherwise amend ‘any existing law’. This meant that section 73A which was inserted in the Police Act by order made under section 2(2) of the Amendments Act was null and void; (2) the Minister did not act on the advice of the CMO as required by section 43B of the Public Health Act thereby exceeding his authority and acting unlawfully. Rules 8(1) and 8(2) were therefore void; (3) Rule 8 was unconstitutional because the Minister of Health in promulgating them usurped the powers and functions of the Public Service Commission (the “Commission”) under section 77(13) and 78(1) of the Constitution; (4) the Commission, the Police Service Commission and the Commissioner of Police: (a) acted unlawfully and contrary to the rules of natural justice in failing to give the respondents an opportunity to be heard before issuing the letters to the respondents; and (b) contravened sections 77(12) and 84(6) and (7) of the Constitution by acting under the directions of the Minister of Health. This meant that the decisions taken by the Commission, the Police Service Commission, and the Commissioner of Police pursuant to Regulation 31 were unlawful and unconstitutional. The learned trial judge accordingly made fourteen declarations and granted three orders of certiorari to reflect her decisions on the judicial review and constitutional claims. The Appeal The appellants filed an appeal on 29th March 2023 against the decision of the learned trial judge dated 13th March 2023 advancing 17 grounds of appeal. The following issues arise for consideration based on the grounds of appeal: (1) whether Rule 8 of 15  the Special Measures was unconstitutional and or unlawful because: (a) the Minister of Health did not act on the advice or recommendation of the CMO as required by section 43B of the Public Health Act in making Rule 8; (b) in making Rule 8, the Minister usurped the functions of the Commission under sections 77(13) and 78(1) of the Constitution; and (c) Rule 8 contravened the respondents’ constitutional rights under sections 6 (protection from deprivation of property) and 88 (pension law and protection of pension right) of the Constitution; (2) whether the Commission, the Police Service Commission and the Commissioner of Police (a) acted unlawfully and contrary to the rules of natural justice in failing to give the respondents an opportunity to be heard before issuing the letters to the respondents; and (b) contravened sections 77(12) and 84(6) and (7) of the Constitution by acting under the directions of the Minister of Health; and (3) whether the Amendments Act is unconstitutional for contravening the separation of powers doctrine. Issue (1) - Whether Rule 8 of the Special Measures is unlawful and or unconstitutional Rules 4, 5, and 7, as applicable, of the Special Measures, provide as follows: “4. (1) Subject to rule 6, every employee must, at the times or periods as may be determined by the Chief Medical Officer and notified in writing to the employee by his employer, present to his employer a negative rapid test or PCR test on reporting to work. (2) A determination by the Chief Medical Officer under sub-rule (1) may be made in relation to different categories of employees. … 5. (1) Subject to rule 7, every employee specified in the Schedule must be vaccinated against the coronavirus-disease 2019. (2) … (3) An employee must provide proof of vaccination by submitting his vaccination card to his employer. … 7. (1) An employer may exempt an employee to whom rule 5 applies from the requirement for vaccination- (a) if the employee provides a written certificate from a medical practitioner approved by the Medical Officer of Health certifying that 16  vaccination is not advisable on the medical ground stipulated in the certificate; or (b) on religious grounds if the employer is able to make alternative arrangements to accommodate the employee. (2) In determining whether to grant an exemption under sub-rule (1) (a), an employer may submit a request for exemption to the Chief Medical Officer for review and advice and for this purpose the Chief Medical Officer may seek the advice of one or more medical practitioners. (3) An employee who is exempted under this rule must comply with rule 4. (4) An exemption may be given on conditions and if so, the person given the exemption must comply with the conditions. (5) The written certificate referred to in sub-rule 7 (1) (a) must be in a form approved by the Chief Medical Officer. (6) The application for exemption on religious grounds must be in a form approved by the Cabinet.” Also forming part of the Special Measures are Rules 8(1) and 8(2), which are at the heart of this appeal, that state as follows: “8. (1) An employee who without reasonable excuse fails to comply with rule 4 or 5 must not enter the workplace and is to be treated as being absent from duty without leave. (2) Regulation 31 of the Public Service Commission Regulations applies to a public officer who is absent from duty without leave under subrule (1).” Regulation 31 of the Public Service Commission Regulations states that: “Determination of Appointments 31. Abandonment of office An officer who is absent from duty without leave for a continuous period of ten working days, unless declared otherwise by the Commission, shall be deemed to have resigned his office, and thereupon the office becomes vacant and the officer ceases to be an officer.” It must be noted at the outset that, in the proceedings in the court below, there was no challenge to any of the other rules contained in the Special Measures. Rule 5 17  which required every employee specified in the Schedule to be vaccinated against the COVID-19 virus, except if exempted on medical and religious grounds in accordance with Rule 7, was not challenged in these proceedings. Consequently, it remained a legal, and presumptively constitutional, requirement for all such public officers to be vaccinated. This appeal, it must be emphasised, does not concern the mandatory requirement for public officers to be vaccinated against the COVID-19 virus. This judgment therefore is not concerned with the arguments for and against mandatory or compulsory COVID-19 vaccination found in Rule 5. Since the purpose of the Special Measures were to combat the spread of the COVID-19 virus, Rule 5 would be made redundant if it was not accompanied by Rule 8 which required all employees not to enter the workplace while unvaccinated. Similarly, Regulation 31 has existed as part of the law of Saint Vincent and the Grenadines since 1969 and has also not been challenged in these proceedings. The same analysis below in respect of Rule 8 and Regulation 31 therefore applies to section 73A of the Police Act which expressly applies Regulation 31 to police officers. In the court below, the respondents did not argue that they were not absent from duty for a period of ten working days or more without leave to engage the application of Regulation 31 to them. The uncontroverted evidence of the Commissioner of Police is that he determined that the unvaccinated police officers should be deemed to have resigned their posts having been absent from their posts without leave for a period of 10 consecutive days. It was on that basis that police officers were issued with letters from the Commissioner of Police informing them that they were deemed to have resigned from office under section 73A of the Police Act. Similarly, the uncontroverted evidence of the Commission was that the Commission granted approval for the unvaccinated public officers to be deemed to have resigned from their posts having been absent from their posts without leave for a continuous period of 10 days in accordance with Rule 8(2). The factual basis for the determinations by the Commissioner of Police and the Commission was not challenged by the respondents. In the court below, the respondents chose not to cross-examine any of the witnesses for the appellants. The respondents’ case was that Rule 8, by deeming 18  them to have vacated their office, is unlawful for reasons accepted by the learned trial judge that will be explored fully later in this judgment. Rule 8 must be read in the context of Regulation 31 to which it impliedly and expressly refers. It is pellucid that the drafters of Rule 8 wanted to make certain that Regulation 31 applied to the situation where an employee is absent from duty because they are unvaccinated. The drafters did so in two ways. Rule 8(1) The first was by stating expressly in Rule 8(1) that an employee who fails to present to his employer a negative rapid test or PCR test on reporting to work or who is unvaccinated and therefore cannot enter the workplace ‘is to be treated as being absent from duty without leave’. Noncompliance with Rule 5 and the inability to enter the workplace is the basis for the second part of Rule 8(1). As the uncontradicted evidence of the Commission shows, a person who is unvaccinated but is on sick leave, maternity leave, or vacation leave would not contravene Rule 8(1) because they would not be absent from duty without leave. Noncompliance with Rule 5 must be followed by inability of that officer to enter the workplace for that reason alone, and therefore absent from duty without leave for a period of ten working days or more. The second part of Rule 8(1) was inserted arguably to remind public officers that if they are unable to enter the workplace to perform their duties, they will be treated as absent from duty without leave. It seemingly borrows language from Regulation 31. Unless that unvaccinated public officer has official leave (sick leave, vacation leave, or maternity leave) he or she would, as a matter of fact, be absent from duty without leave if they are unable to enter the workplace to perform their duties for a period of over 10 days. Following a line of questioning from myself at the hearing of the appeal, counsel for the appellants accepted that these additional words in Rule 8(1) – ‘and is to be treated as being absent from duty without leave’ – are mere surplusage. I completely agree. They do not add or subtract from the core public health measure designed to mitigate or remedy the public health emergency. In my view, nothing in 19  law turns on these additional words when Regulation 31 is engaged by Rule 8(2) to which I now turn. Rule 8(2) The second way in which the drafters of Rule 8 made clear that Regulation 31 applied to an employee who contravened Rule 5 and was consequently not able to enter the workplace for a continuous period of 10 working days was by stating expressly in Rule 8(2) that Regulation 31 of the Public Service Commission Regulations applies to a public officer who is absent from duty without leave under subrule (1). In my view, the insertion of Rule 8(2) in the Special Measures was not necessary because Regulation 31 applies to every situation where an employee so absents himself or herself from duty without leave for at least ten working days. These situations, for good reason, were not spelt out in Regulation 31. As mentioned above, it may be that reference to Regulation 31 was stated expressly in Rule 8(2) to make it plain to any officers who do not comply with Rule 5, that if they do not get vaccinated and were therefore absent from work for a period of ten working days or more without leave, then, Regulation 31 would be applied with the consequence that: (1) the officers shall be deemed to have resigned from their office; (2) the offices that they hold shall become vacant; and (3) those officers shall cease to be officers. In the end, although unnecessary, it made practical sense to alert officers to the consequences of their non-compliance with Rule 8 and their consequential inability to perform their duties to their employer for the relevant period without leave so that those officers could make informed decisions if they wished to continue to be officers or remain steadfast in their noncompliance with Rule 5 with the result that they cease to be officers. Summary of effect of Rules 8(1) and 8(2) The first part of Rule 8(1) prohibits public officers from entering the workplace while unvaccinated. That is the critical and important part of Rule 8(1). It was this measure recommended by the CMO that was designed to mitigate or remedy the public health emergency brought about by the spread of the COVID-19 virus. The effects of the 20  second part of Rule 8(1) and Rule 8(2) are as follows. First, the second part of Rule 8(1) borrows language from Regulation 31 stating that an unvaccinated public officer who cannot enter the workplace will be absent from duty without leave and, second, Rule 8(2) merely states that Regulation 31 applies to such a public officer. If the Commission had applied Regulation 31 to any public officer who had been absent from duty without leave for a period less than ten working days, the Commission would have acted unlawfully for Regulation 31 would simply not have applied. Since none of the respondents have argued that they had not been absent from duty without leave for a period of less than ten working days, I will proceed on the basis that Regulation 31 was properly engaged by the Commission, the Police Service Commission, and the Commissioner of Police in relation to the respondents. The learned trial judge held that Rule 8 is unconstitutional and/or unlawful for at least three main reasons as follows. Issue (1)(a) – The Minister of Health and the advice of the CMO The first reason was that the Minister of Health did not act on the advice of the CMO in making Rule 8 of the Special Measures as is required under section 43B(2) of the Public Health Act. Section 43B(2) states as follows: “(2) Where the Minister has declared a public health emergency, the Minister, on the advice of the Chief Medical Officer, may implement special measures to mitigate or remedy the public health emergency including – … (i) any other measure the Minister, on the advice of the Chief Medical Officer considers necessary, considers necessary for the protection of public health during the public health emergency.” Of critical importance is the uncontroverted evidence of the Minister of Health at paragraph of his affidavit9 that the CMO advised that frontline public officers must be vaccinated against COVID-19 to work in their workplaces and should not enter 9 Affidavit of Mr. St. Clair Prince, Minister of Health, filed 11th October 2022. 21  the workplace because if an unvaccinated worker entered the identified high-risk workplace, they would present a risk of infection to others or risk being infected. I note that the CMO at paragraph of her affidavit10 expressly stated that she advised the Minister of Health that essential workers like the respondents should not enter the workplace because they would present a risk of infection to or risk being infected by patients, students, prisoners, travellers etc. The same recommendation was also made in paragraph in relation to all health care workers in order to work in a Government health care facility. These are clear references to the first part of Rule 8(1). The principles that guide an appellate court in affording particular respect or deference to the decision of a trial judge on findings of fact are plainly applicable here since the affidavits of the deponents stood as their evidence in chief and there was no cross-examination on any of the witnesses for the parties. In Shaista Trading Company Limited d.b.a. Diamond Republic v First Caribbean International Bank (Barbados) Ltd,11 this Court, after quoting from the well-known passage in Biogen Inc v Medeva Plc12 stated that: “ Lord Hodge, in the judgment of the Board in Beacon Insurance Company Limited v Maharaj Bookstore Limited, cautioned that the Court of Appeal ought first to be satisfied that the trial judge was ‘plainly wrong’ before interfering with the judge’s findings of primary fact or his or her evaluation of facts. His Lordship explained that the issue of whether the trial judge was ‘plainly wrong’ directs the appellate court to consider whether it was permissible for the trial judge to make the findings of fact which he or she did in the face of the evidence as a whole. In other words, the court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his or her conclusions. Indeed, a quintessential example of circumstances in which the appellate court ought properly to interfere with the trial judge’s findings of fact is where the judge failed to properly analyse the entirety of the evidence.” There was no cross-examination of either the Minister of Health or the CMO on this issue which meant there was no basis for the learned trial judge to reject the evidence 10 Affidavit of Dr. Simone Keizer- Beache, Chief Medical Officer. 11 ANUHCVAP2018/0021 (delivered 26th April 2021, unreported) at paragraph 33. 12 RPC 1. 22  of the CMO and the Minister of Health. Consequently, the trial judge was incorrect to state that the Minister of Health did not as a matter of fact act on the advice of the CMO in making Rule 8. This finding is contrary to the uncontroverted evidence of the CMO and the Minister of Health and there was no basis for the learned trial judge not to accept it. It seemed that the learned trial judge failed to make a proper distinction between, on the one hand, the prohibition of unvaccinated public officers to enter the workplace found in the first part of Rule 8(1) and, on the other hand, the reference to treating those unvaccinated public officers as absent from duty without leave (the second part of Rule 8(1)) and the express reference in Rule 8(2) to Regulation 31. The advice of the CMO was only relevant to the first part of Rule 8(1). No such advice was required from the CMO before the Minister of Health could include the second part of Rule 8(1) and Rule 8(2) in the Special Measures. The factual findings on this issue by the learned trial judge at paragraphs , -, -, , and , that the Minister did not act on the advice of the CMO in respect of Rule 8 contradict, without any foundation, the uncontradicted evidence of the Minister of Health found at paragraph of his affidavit mentioned above and that of the CMO at paragraph of her affidavit also mentioned above. Consequently, I am satisfied that the learned trial judge was plainly wrong in finding otherwise Minister acting on the advice of CMO for some but not all rules in the Special Measures The respondents misunderstand the issue in this appeal. Contrary to their submission, the question is whether the CMO advised the Minister of Health that unvaccinated persons should not enter the workplace rather than whether the CMO advised the Minister of Health that Regulation 31 should apply to such persons. I agree that the Minister of Health is required to act on the advice of the CMO for some, but not all of the rules contained in the Special Measures. However, one must carefully scrutinise any rule to determine whether it is one that can properly be considered a measure that was designed to mitigate or remedy the public health emergency, namely, the spread of the COVID-19 virus or whether it is one that includes a deeming provision or merely refers to existing law. As concluded above, and accepted by the appellants, the second part of Rule 8(1) and Rule 8(2) merely 23  do just that – first, the second part of Rule 8(1) states that an unvaccinated public officer who cannot enter the workplace will be deemed to absent from duty without leave and, second, Rule 8(2) merely states that Regulation 31 applies to such a public officer. These could not be and were not part of the advice given by the CMO to the Minister of Health. There was no need for them to form part of that advice because the first uses language borrowed from Regulation 31 and the second merely references existing law (Regulation 31) that would apply to that circumstance once it exists. The deeming aspect of Rule 8(1) uses language borrowed from Regulation 31 and is arguably narrower than the scope of Regulation 31. For Regulation 31 to apply, a public officer must have absented themselves from duty without leave for a period of 10 days or more. Rule 8(1), by its curious drafting deems an unvaccinated public officer who cannot enter the workplace as being absent from duty without leave. However, one cannot lose sight of the fact that Rule 5 makes clear that for public health all public officers must be vaccinated against the COVID-19 virus, and Rule 8 effectively states that any unvaccinated public officer must not enter the workplace. Importantly, the respondents have not challenged the application of Regulation 31 to any unvaccinated public officer who absented themselves from duty without obtaining leave for a period of 10 days or more. Similarly, while the respondents challenge Rules 8(1) and (2) their main challenge is essentially to the deeming aspect found in Rule 8(1). As I mentioned earlier, the application of Regulation 31 to any unvaccinated public or police officer who was not able to enter the workplace for a period of 10 days or more would be unassailable, for the deeming provision would apply and that unvaccinated public or police officer would be deemed to have resigned from office. It must be noted that while Rule 8(1) states that such an unvaccinated public officer who must not enter the workplace will be absent from duty without leave, it was no part of the respondents’ case that, apart from Rule 8(1), they did not absent themselves from duty without leave for a period of 10 days or more, thereby engaging 24  Regulation 31 by virtue of Rule 8(2). Even if the deeming aspect of Rule 8(1) was unlawful, that would not avail the respondents as Regulation 31 would still be engaged and the result would be the same. Merely stating that they were available to work, or that they did not abandon their jobs, cannot be a sufficient answer to the requirement that all public officers must be vaccinated in accordance with Rule 5, and a failure to be vaccinated meant that they must not enter the workplace pursuant to Rule 8(1). It is true that Regulation 31 speaks of being ‘absent from duty’; while Rule 8(1) refers to not entering the workplace. However, as a practical matter, it hardly needs explaining that a public officer who is unable to enter the workplace by virtue of Rule 8(1) for noncompliance with a valid Rule 5 which required him or her to be vaccinated, would not be able to report to his or her workstation and would therefore be ‘absent from duty’ for the purposes of Regulation 31. More importantly, it was not part of the mandate of the CMO under section 43B(2) of the Public Health Act to advise the Minister of Health in respect of anything other than providing the Minister of Health with advice relating to measures designed to mitigate or remedy the public health emergency. Neither the evidence of the CMO nor the Minister of Health mentioned any advice given by the CMO in relation to the second part of Rule 8(1) or Rule 8(2). The uncontradicted evidence of the Minister of Health was that the CMO advised that frontline public officers must be vaccinated against the COVID-19 virus to work in their workplaces and should not enter the workplace if unvaccinated. It is arguable that the inclusion of the second part of Rule 8(1) or Rule 8(2) in the Special Measures was done out of an abundance of caution or were mere surplusage as the counsel for the appellants put it at the hearing of the appeal. While some parts of Rules 8(1) or 8(2) were not based on the advice of the CMO, it is not doubted that they were measures to mitigate or remedy a public health emergency by ensuring compliance with the requirement in that police officers and public workers must be vaccinated before entering the workplace. The appellants submit that Rule 8 was a reasonably necessary rule to ensure the efficacy of the mandatory vaccination rule found in Rule 5. As mentioned earlier, the 25  prohibition on unvaccinated public officers from entering the workplace was one of the measures recommended by the CMO to the Minister of Health to mitigate or remedy the public health emergency brought about by the spread of the COVID-19 virus. Rule 8 is not an enforcement mechanism for Rule 5 per se. It is the application of Regulation 31 to an unvaccinated public officer who is unable to enter the workplace that ensures the efficacy of the first part of Rule 8(1). Regulation 31 would in any event apply to unvaccinated public officers to whom the first part of Rule 8(1) applied. The enforcement of Rule 8 is achieved through the operation of Regulation 31. Without the enforcement mechanism of Regulation 31, Rules 5 and 8 would have been rendered meaningless by those public officers who were adamant that they would not get vaccinated and wish to continue to be able to enter the workplace to perform their duties. The learned trial judge was wrong to conclude that the Minister of Health was required to act on the advice given or the recommendation made to him by the CMO before making Rule 8 when the uncontroverted evidence of the Minister of Health was that he so acted in making the first part of Rule 8(1). The second part of Rule 8(1) and Rule 8(2) do not form part of the recommendation of the CMO and for reasons already explained and for the additional reasons below, there was no need for them to have been. The deeming aspect of Rule 8(1) Rule 8(1) purports to be a deeming provision. While we do not hear argument on this point, what is the effect of this aspect of Rule 8(1)? In Fowler v Revenue and Customs Commissioners,13 the United Kingdom Supreme Court provided some guidance on how deeming provisions are to be interpreted and applied as follows: “Deeming provisions 27 There are useful but not conclusive dicta in reported authorities about the way in which, in general, statutory deeming provisions ought to be interpreted and applied. They are not conclusive because they may fairly be said to point in different directions, even if not actually contradictory. The relevant dicta are mainly collected in a summary by Lord Walker of 13 1 WLR 2227 at 2236, paragraph 27. 26  Gestingthorpe JSC in DCC Holdings (UK) Ltd v Revenue and Customs Comrs 1 WLR 44, paras 37–39, collected from Inland Revenue Comrs v Metrolands (Property Finance) Ltd 1 WLR 637, Marshall v Kerr 1 AC 148 and Jenks v Dickinson STC 853. They include the following guidance, which has remained consistent over many years: (1) The extent of the fiction created by a deeming provision is primarily a matter of construction of the statute in which it appears. (2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes. (3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made. (4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language. (5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. As Lord Asquith memorably put it in East End Dwellings Co Ltd v Finsbury Borough Council AC 109, 133: “The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”” It seems to be that in so far as Rule 8(1) states that an unvaccinated person must not enter the workplace and “is to be treated as being absent from duty without leave”, it is a deeming provision. Rule 8(1), therefore, deemed an unvaccinated person as being absent from duty when absence from duty is a matter of fact. In my view, this aspect of the deeming provision of Rule 8(1) should not be applied insofar as it may produce unjust, absurd or anomalous results. Something is missing from the last part of Rule 8(1). It should read as follows: “and [if any employee is consequently unable to enter the workplace, they are] to be treated as being absent from duty without leave”. This, to my mind, resolves the absurd result that may be occasioned without the insertion of those words. However, I prefer the guidance provided by the UKSC in Fowler to the effect that the deeming aspect should not be 27  applied where it leads to the result that is unjust, absurd or anomalous as in the case here. Rule 8(2) as I have earlier explained merely, out of an abundance of caution, states that Regulation 31 applies any unvaccinated employee who is unable to enter the workplace. Minister’s general power to make rules As mentioned above, in the preamble to the Special Measures, it was stated that the Minister in the exercise of the powers conferred by both sections 43B of the Public Health Act and section 147 of the Public Health Act made the rules contained in the Special Measures. As explained above, section 147 states that the Minister shall have power ‘to make rules generally for the carrying out of the purposes of this Act’. There can be no doubt that the Special Measures, including Rules 8(1) and 8(2), were properly made by the Minister pursuant to section 147 of the Public Health Act. It matters little that not every rule in the Special Measures were not made by the Minister based on the advice of the CMO, because the Minister had the general power under section 147 of the Public Health Act to make the Special Measures without reference to section 43B(2) of the Public Health Act. It is not doubted that the Minister acted on the advice of the CMO in making most of the Special Measures. However, for those rules that were not made on the advice of the CMO, the Minister had the lawful power to make them under section 147 of the Public Health Act. It is not the case that the Special Measures were made pursuant to section 43B(2) of the Public Health Act, and the Minister now submits that he could have made them pursuant to section 147. In the Special Measures, it is expressly stated that the Minister made them pursuant to section 43B and section 147 of the Public Health Act. I agree that the source of the power of the Minister is statutory and that he does not have any inherent power to make rules. The source of the power of the Minister to make any rule in the Special Measures that were not based on the advice of the CMO is section 147 of the Public Health Act. There is no limit on the wider powers granted to the Minister under section 147 of the Public Health Act and there is 28  nothing in section 43B that limits that power. To the contrary, section 43B merely provides additional powers to the Minister but it does not in any way limit his general rule making power in section 147 of the Public Health Act. The learned trial judge at paragraph accepted that the Minister would have the power under section 147 of the Public Health Act to implement the Special Measures, stating that: “ Section 43B of the Act empowers the Minister to among other things ‘implement special measures to mitigate or remedy the emergency’. It is worth noting that s 147 (that also predated s 43B) of the Act empowers the Minister to make rules generally for the carrying out of the purposes of the Act. This would include implementation of special measures. In fact, the Special Measures SR&O was made pursuant to ss 43B and 147 of the Act.” The learned trial judge appreciated that the wide powers granted to the Minister under section 147 of the Public Health Act were in fact used to make the Special Measures. Having noted this, the learned trial judge was wrong to conclude that Rules 8(1) and 8(2) were not made under the advice of the CMO and for that reason were unlawful. The Minister lawfully exercised his rule making power under section 147 of the Public Health Act in respect of any matter found in the Special Measures that the CMO did not advise him directly on. In my view, there is no need to reconcile the rule-making powers of the Minister under section 43B and section 147 of the Public Health Act. The respondents have not challenged the power of the Minister to make any of the Rules, including Rules 8(1) or 8(2), or any part therefore, under section 147 of the Public Health Act. In making the Special Measures under both sections the Minister lawfully made Rules 8(1) and 8(2) under the power conferred on him generally under section 147 and based on the advice of the CMO under section 43B of the Public Health Act. In addition, one must also have regard to section 39 of the Interpretation and General Provisions Act14 (“the Interpretation Act”) which provides as follows: “39. Construction of enabling words Where any written law confers power upon any person to do or enforce the doing of any act or thing, all such powers shall be deemed to be also 14 Cap 14 of the Revised Laws of Saint Vincent and the Grenadines,2009. 29  conferred as are necessary to enable the person to do, or to enforce the doing of, that act or thing.” Therefore, in exercising his power under section 43B, the Minister would also have the power to enforce compliance with the part of Rule 8 which was based on the advice of the CMO. I also agree with the appellants’ submission that under section 39 of the Interpretation Act, the Minister in any event has the implied power to enforce compliance with the requirement under Rule 8 that public officers must not enter the workplace while unvaccinated. This is a basis founded in law that grounds the powers of enforcement of the Minister. Regulation 31 not challenged It is not in dispute that the application of Regulation 31 requires a fact-specific inquiry. However, the respondents have not challenged Regulation 31 in their constitutional and judicial review proceedings. Their challenge is to the lawfulness of Rule 8(1) and Rule 8(2) which, out of an abundance of caution, state that Regulation 31 applies to a public officer who fails to be vaccinated in accordance with Rule 5 and is deemed to be absent from duty. The effect of Regulation 31 is to deem anyone who has absented themselves from duty without leave for a period of 10 working days to have resigned from office. This requires three factual determinations. The first is the person has absented themself from duty. Second, the absence from duty lasted for at least 10 days. The third is they did not obtain leave before being absent from duty. As I mentioned earlier, none of the respondents challenged the factual bases for the application of Regulation 31 in their respective cases. Their challenge to Rules 8(1) and Rule 8(2) were broadly stated and seemingly applied in respect of each of the respondents. In the letters to the public officers, it was stated expressly that by failing to comply with Rule 5 that they were absent from duty without leave pursuant to Rule 8 and that in accordance with Regulation 31 they ceased to be an officer. Similarly, in the letter to police officers, it was stated expressly that section 73A of the Police Act provides that a police officer who is absent from duty without leave for ten (10) consecutive 30  days is deemed to have resigned from his or her office. This makes pellucid that Regulation 31 is the lawful basis on which the appellants were deemed to have resigned their offices. A failure to comply with Rule 5 and Rule 8 is the factual background which provided the context in which they were deemed to have resigned from their offices. In my view while it is arguable that Regulation 31 would apply in any event, what is clear is that Regulation 31 was the driving force behind the letters received by the respondents for failing to be vaccinated in accordance with Rule 5, and being unable to enter the workplace pursuant to Rule 8, and by satisfying the requirements, according to the appellants , of Regulation 31. Having not challenged the application of Regulation 31 to them, it is not open to this Court in this appeal to entertain any argument as to whether the requirements were satisfied for its deployment in the case of each respondent. That was not their pleaded case in the court below and cannot be their case on this appeal. For the purposes of this appeal, Regulation 31 must be taken to be valid and properly applied in the case of the respondents. None of them challenged the constitutionality of Regulation 31 or its application to any of them. On this appeal, it would not be appropriate for this Court to make pronouncements on a law that has not been challenged in the court below. Our remit in this appeal is confined to a determination of the lawfulness or otherwise of Rules 8(1) and 8(2). Any concerns that might be had with Regulation 31 must wait another day when its constitutionality is properly before this Court for determination. In any event, it is for the respondents to prove that the requirements of Regulation 31 were not satisfied in each case. In the proceedings in the court below the respondents have not challenged the application of Regulation 31 to them. To do so, I accept would require a factual enquiry as to whether the requirements of Regulation 31 have been satisfied. It is improper on this appeal where the learned trial judge has made no findings of fact in respect of whether the requirements of Regulation 31 and where the respondents do not challenge the application of Regulation 31 to them, for this Court to embark on a factual determination as to whether the requirements were satisfied in the case of one or two respondents and make generalisations therefrom. 31  It is important to make pellucid that it is the relevant body or person that made the decision concerning the application of Regulation 31 or section 73A of the Police Act. In the letter to the public officers from the Chief Personal Officer it was stated that “I have to inform you that the Public Service Commission has noted that …” and “[a]ccordingly, on behalf of the Public Service Commission, I have to inform you that you are deemed to have resigned your office …”. This makes clear that it is the Commission, and not any person or body, that made the determination concerning Regulation 31. The letter to the police officers was directly from the Commissioner of Police and it is not doubted that it was the Commissioner of Police who made the decision. In light of this, it cannot reasonably be disputed that the Commission and the Commissioner of Police made the decisions concerning the application of Regulation 31 and section 73A respectively. There is nothing in the evidence to show that the Commission and the Commissioner of Police did not exercise their independent judgment concerning whether the requirements of Regulation 31 and section 73A of the Police Act were satisfied. Abandonment at common law irrelevant The decision of this Court in Huggins Neal Nicholas v Attorney General & The Teaching Service Commission15 is not material to a resolution of any of the issues in the court below or in this appeal because in that case this Court was not there dealing with the application of an equivalent deeming provision such as Regulation 31 and section 73A of the Police Act. It concerned whether the trial judge misdirected himself and therefore erred in law by finding that the appellant resigned his post and abandoned his post when he went abroad to study which created the cause of action and the running of time leading to the prescription of his action for recovery of salary due to him. The Court in Nicholas had to consider the meaning of abandonment of office and accepted at paragraph that abandonment connotes a voluntary relinquishment of the performance of the duties of an office with the actual or imputed intention on the part of the office holder to abandon and relinquish that 15 SLUHCVAP 2008/018 (delivered 22nd March 2010, unreported). 32  office. Regulation 31 and section 73A of the Police Act makes provision for when a public officer or police officer is deemed to have abandoned his or her office. Once the requirements of Regulation 31 and section 73A of the Police Act have been satisfied, the public officer or police officer is deemed to have abandoned his or her office. There is no room for the secondary question of whether the public officer has in fact abandoned his or her office at common law. The decisions cited by the respondents concerning abandonment of office do not plainly apply where the abandonment of office is covered by Regulation 31 and section 73A of the Police Act. It is not the respondents’ case in the court below that Regulation 31 unlawfully disapplied the criteria for abandonment at common law. Conclusions on Issue 1(a) In my view, Rule 8 was made on the advice of the CMO in accordance with section 43B of the Public Health Act. The additional words in Rules 8(1) and 8(2) were not needed to be made on the advice of the CMO as they either merely repeated language already used in Regulation 31 (Rule 8(1)) or made express reference to the application of Regulation 31 (Rule 8(2)). Even if I am wrong on this, there can be no doubt that the Minister also made the Special Measures, of which Rule 8 is a part, under the powers granted to him by section 147 of the Public Health Act. This means that Rules 8(1) and 8(2) in full were also lawfully made under section 147 and for the avoidance of doubt, any part of Rules 8(1) and 8(2) that the CMO did not advise the Minister on were properly made by the Minister under section 147 of the Public Health Act. The Minister therefore had the: (1) express power under section 147 to make Rules 8(1) and 8(2); and (2) the implied power under section 43B of the Public Health Act and section 39 of the Interpretation Act to make Rules 8(1) and (2). The learned trial judge was therefore wrong to conclude that Rules 8(1) and 8(2) made pursuant to the purported power of the Minister under section 43B of the Public Health Act are unlawful, unconstitutional and void. 33  Issue (1)(b) – Minister of Health usurping the functions of the Commission The second reason given by the learned trial judge to hold that Rule 8 is unconstitutional and/or unlawful was that Rule 8 is contrary to: (1) section 77(13) of the Constitution which states that in the exercise of its functions the Commission shall not be subject to the direction or control of any person or authority; and (2) section 78(1) which gives the Commission the power to appoint, discipline and remove persons who hold or act in offices in the public service. It cannot be doubted that these powers are vested exclusively in the Commission: Thomas v Attorney- General of Trinidad and Tobago.16 Without adequate explanation, the learned trial judge concluded at paragraph that the Minister of Health trespassed on the exclusive jurisdiction of the Commission when he made Rule 8 of the Special Measures. In this regard, it is important to remember what Rule 8 really does. Rule 8(1) states that an employee who without reasonable excuse fails to comply with Rules 4 or 5 must not enter the workplace and is to be treated as being absent from duty without leave. It is doubtful whether the words ‘and is to be treated as being absent from duty without leave’ adds anything to Rule 8(1) because any employee who is unvaccinated cannot enter the workplace and consequently cannot perform their duties and as such would be absent from duty without leave. As already noted, counsel for the appellants at the hearing of the appeal accepted that these additional words are mere surplusage. These words merely reflect a fact that would exist if an employee failed to get vaccinated and was unable to enter the workplace to fulfil their contractual obligations for ten days or more. Rule 8(2) states that Regulation 31 of the Public Service Commission Regulations applies to a public officer who is absent from duty without leave under subrule (1). As I explained earlier, Rule 8(2) merely makes clear the application of Regulation 31 to Rule 8(1). The critical aspect of Rule 8 is therefore that an employee who without reasonable excuse fails to comply with Rules 4 or 5 must not enter the workplace. The rest operates as a matter 16 A.C. 113. 34  of fact and law by the operation and application of Regulation 31. The decision in Thomas is not relevant to the analysis. It is difficult to see how Rule 8 usurps any of the functions of the Commission. The learned trial judge also erred in so finding.5 Issue (1)(c) – Rule 8 and the alleged deprivation of property and pension rights The third reason given by the learned trial judge to hold that Rule 8 is unconstitutional and/or unlawful was that Rule 8 was not proportionate because of the loss of pension rights which are entitled to constitutional protection under sections 6 (protection from deprivation of property) and 88 (pension law and protection of pension right) of the Constitution. It is important to note that this is the only constitutional right that the respondent alleged was contravened by Rule 8. No evidence of a constitutional infringement I am of the view that, first, the only constitutional right that is protected by section 88 is a pension to which a person is lawfully entitled. In the application by way of originating motion and judicial review application, the respondents sought a declaration that Rule 8 insofar as it has the effect of providing for the deprivation of the respondents’ accrued benefits associated with their employment, infringes the rights of the respondents to protection from deprivation of property without compensation under sections 1 and 6 of the Constitution and contravenes section 88 of the Constitution which protects pension rights and is therefore void. In the grounds in support of the declarations sought, the respondents stated that Regulation 31 has the effect of depriving them of their accrued pension rights arising from decades of service, pursuant to section 6 of the Pensions Act,17 contrary to sections 1, 6 and 88 of the Constitution. The affidavit evidence of Brenton Smith, a former police officer, states that he is ‘going to lose out on [his] social benefits in both [his] pension and gratuity benefits because of losing [his] job’ because of Rule 8. Nothing is found in the affidavit of Cavet Thomas, a former customs officer, about loss of pension except that in his 17 Cap 272 of the Revised Laws of St. Vincent and the Grenadines. 35  appointment letter dated 23rd July 2010, it is stated that the post Senior Customs Officer to which he was appointed was pensionable. Shaniel Howe, a former primary school teacher, made no mention of loss of any pension rights in her affidavit evidence. Alfanso Lyttle, a former public officer, averred that because of his termination, he ‘will also lose [his] pension and gratuity benefits accrued over his years of dedicated service to his employer’. In his undated appointment letter as Assistant Supervisor, Customs and Excise Department, it is stated that the post is pensionable. In the affidavit of Sylvonne Olliver, former police officer, she states that the decision of the Commissioner of Police to terminate her under the guise that she had resigned from her job in accordance with Rule 8 and section 73A of the Police Act means that she ‘may be denied [her] social security benefits in terms of [her] pension of gratuity’. In the joint affidavit of Shefflorn Ballantyne, Travis Cumberbatch and Rohan Giles, they state that there exists the ‘probability that [they] stand to lose benefits such as pension and gratuity’ and that the loss of these ‘is a most painful thought given that many of [them] have given longstanding committed service to [their] respe