…AG tells court in Khalid Gobin detention lawsuit case
THE Ministry of Public Health’s decision to quarantine overseas-based Guyanese student Khalid Gobin upon his arrival here from Barbados was in keeping with the directives issued by President David Granger, pursuant to the Public Health Ordinance.
The objective of taking such a decision is to stem the spread of the novel Coronavirus (COVID-19), which has claimed the lives of thousands globally, among them three here in Guyana to date.
This was the line of argument taken by Solicitor-General Nigel Hawke as he defended the State’s position in a case brought by Kennard and Khalid Gobin for an order of Habeas Corpus ad Subjiciendum that Khalid Gobin is being unlawfully held by the State.
In the proceedings brought against the Attorney-General, the Chief Medical Officer, and the Chief of Staff of the Guyana Defence Force, Gobin is contending that the State has breached his fundamental right to free movement and liberty, and subjected him to inhumane conditions.
In his written submission to Justice Brassington Reynolds, the Solicitor-General, before addressing the facts of the matter, drew the High Court’s attention to the facts surrounding COVID-19, a global pandemic.
“On the 11th March, 2020, the World Health Organisation (WHO) declared the novel COVID-19 a global pandemic. The WHO pointed to over 118, 000 cases of the Coronavirus in over 110 countries and territories around the world and the sustained risk of further global spread,” the Solicitor-General said in his submission. To date, there has been over 244,000 cases and more than 10,000 deaths the world over. Here in Guyana, the cases are climbing, with a number of deaths recorded.
The Solicitor-General told the Court that it was against that background that President Granger, on March 16, 2020, issued directives pursuant to the Public Health Ordinance, in which he empowered Minister of Public Health Volda Lawrence to take strategic actions so as to maintain the wellbeing of the nation.
Based on the orders issued by the Head of State, the Public Health Minister is empowered to transform one or more hospitals or camps, in any part of the country, for the reception, isolation and treatment of persons suffering from COVID-19.
The President also declared: “The Minister of Public Health shall take measures to (a) restrain, segregate and isolate persons suffering from the disease, or who may be likely, from exposure to the infection, suffer from the disease.”
Further to that, the Solicitor-General pointed to the fact that on March 18, 2020, the Guyana Civil Aviation Authority (GCAA) closed both international airports. Approximately eight days after the closure of the border, permission was granted for a plane to enter Guyana from Barbados, but on condition that its passengers be subjected to institutional quarantine, as required by the Public Health Ministry. Khalid Gobin and a number of other Guyanese nationals who were on the flight, were placed on mandatory institutional quarantine.
Hawke said that while Khalid Gobin alleges unlawful detention, he did not challenge the orders issued by President Granger under the Public Health Ordinance as being unconstitutional. “It is our respectful submission that there is a presumption of constitutionality,” the Solicitor-General told the Court, as he referenced the cases of Surratt v The Attorney-General of Trinidad and Tobago; and the Attorney-General v Antigua Times Limited.
LIMITATION OF FUNDAMENTAL RIGHTS
On the issue of the limitation of fundamental rights, the Solicitor-General drew the Court’s attention to the approach taken by the South African Court to COVID-19, whereby it dismissed the case of an applicant who was seeking permission to travel during travel restrictions for COVID-19. In that matter, the applicant had informed the court that he had not contracted the virus, nor had he been exposed to it, but the Court, in handing down its ruling, said it could not accede to the relief of the applicant, as to do otherwise would be to authorise the breach of the law.
Having made his point, Solicitor-General Hawke said: “It is our respectful submission that this Honourable Court should apply the same approach taken by the South African Court and follow the law that the Executive has passed restriction, in the case at bar, instructional quarantine, which has to be obeyed in order to limit the spread of the deadly COVID-19 virus in the interest of the Public.”
He said the fact that the Supreme Court of Guyana has suspended matters until April 20, 2020, with the exception of urgent cases, speaks to the severity and seriousness of the global pandemic.
He further submitted that the State’s use of its powers to preserve Public Health is reasonably and fairly exercised, and in no way amounts to an abuse. “There is no evidence of ill intent or arbitrary conduct perpetuated by the Executive against Khalid Gobin,” Hawke said.
AFFIDAVIT IN DEFENCE
Referencing the Affidavit in Defence of the Deputy Chief Medical Officer (DCMO), Dr. Karen Gordon-Boyle, the Solicitor-General said the process of quarantining or isolating an individual is in accordance with the established guidelines of the WHO. According to the world health authority, institutional quarantining must last for a minimum of 14 days, provided that no symptoms are detected following continuous observation.
“It is submitted that institutional quarantine serves the dual purpose of protecting against potential risk and spread of COVID-19 to the population of Guyana, and provides a secure, healthy environment in which suspected persons could be observed,” Hawke put to the Court.
More importantly, it was noted that Khalid Gobin is still within the 14-day incubation period, as sanctioned by the Public Health Ministry, and as such remains under observation.
