Court cannot grant injunction against the State – Attorney General argues

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In his arguments in defence of the government’s COVID -19 emergency measures which impose a number of restrictions for unvaccinated Guyanese, Attorney General Anil Nandlall, SC, has argued that the High Court cannot stop the implementation of those measures by granting an injunction.

“The Honourable Court has no jurisdiction to grant an injunction against the State,” Nandlall expressly noted in his written submissions. He further reasoned that the granting of any interim declaration, in this case, would violate the presumption of regularity, presumption of constitutionality, and will amount to a pre-determination of the substantive issues in the Fixed Date Application.

Nandlall, in his attempts to dissuade the Court from granting any interim orders that would set aside the imposed restrictions, pointed out that the injunction sought has been overtaken by facts (meaning the implementation of the measures have occurred) and is now merely academic.

Backed by political activists Corretta McDonald, Lincoln Lewis and Dawn Gardener, the Guyana Teachers’ Union (GTU), the Guyana Trades Union Congress (GTUC) and the Guyana Public Service Union (GPSU) want the High Court to declare all the protocols and guidelines issued by the government are unlawful.

In the application to the High Court, they asked for an injunction against the State, stopping the implementation of all the COVID-19 measures.

Nandlall said that while the Court is allowed to grant injunctions, that power under the High Court Act is expressly circumscribed by Section 16 of the State Liability and Proceedings Act, Chapter 6:05 of the Laws of Guyana.

In plain terms, it prohibits the Court from granting injunctive/coercive orders against the State.

The said Fixed Date Application challenges the measures issued by former President David Granger on March 16, 2020. The applicants contend that all the monthly measures issued since then under the Public Health Ordinance are unlawful.

Specific umbrage was taken with the vaccination restrictions which prohibits unvaccinated persons from visiting government agencies and ministries unless they make an appointment or produce a negative PCR COVID-19 test; the same applies for public servants and other employees.

The Applicants sought several declarations and orders of certiorari seeking to quash the measures altogether. But with his focus on the interim orders, Nandlall says “in so far as the Urgent Notice of Application seeks to injunct statutory provisions which have already been implemented, it amounts to locking the barn doors after the horses have already bolted.”

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