Dominic Suraj v The Attorney General of Trinidad and Tobago
| Jurisdiction | Trinidad & Tobago |
| Judge | M. Dean-Armorer |
| Judgment Date | 20 April 2021 |
| Neutral Citation | TT 2021 CA 11 |
| Docket Number | CIVIL APPEAL NO. S-246 of 2020 CIVIL APPEAL NO. S-248 of 2020 CLAIM NO CV 2020-02223 |
| Court | Court of Appeal (Trinidad and Tobago) |
IN THE COURT OF APPEAL
I. Archie CJ
M. Dean-Armorer JA
J.C. Aboud JA
CIVIL APPEAL NO. S-246 of 2020
CLAIM NO CV 2020-013708
CIVIL APPEAL NO. S-248 of 2020
CLAIM NO CV 2020-02223
Mr. Anand Ramlogan S.C. leads Ms. Renuka Rambhajan & Mr. Jared Jagroo instructed by Mr. Ganesh Saroop & Mr. V. Siewsaran on behalf of Appellants
Mr. Reginald T.A. Armour S.C. leads Mr. Rishi P.A. Dass & Mr. Raphael Ajodhia instructed by Ms. Savi Ramhit. Ms. Svetlana Dass & Ms. Diane Katwaroo on behalf of Respondents
Delivered by Justice of Appeal M. Dean-Armorer
These two appeals arise out of restrictions imposed by the Public Health [2019 Novel Coronavirus Regulations [2019-nCoV] 2020] 1 which were made by the Minister of Health pursuant to powers conferred by s.105 of the Public Health Ordinance 2.
It is now a matter of history that in early 2020, all of mankind was plagued with an unknown and highly infectious disease, Coronavirus, which came to be known by the acronym, Covid—19. On January 30, 2020, the World Health Organisation (‘WHO’) declared the virus to be a pandemic. On the following day, January 31, 2020 Her Excellency, the President of Trinidad and Tobago, declared Covid-19 to be a dangerous infectious disease, under the Public Health Ordinance. 3
Pursuant to her Excellency's declaration, the Government of the day published Regulations with a view to suppressing the spread of the virus. The Regulations were replaced in quick succession by others, which, in turn contained an adjusted response, appropriate to the prevalence of the virus at the particular time.
Associated with the Regulations were Guidelines for Places of Worship (“ the Guidelines”). These did not form part of the Regulations, but were separately issued by the Ministry of Health, notably on their website. They provided guidance for the conduct of religious services, including directions on the need for social distancing, the use of religious paraphernalia and proper sanitisation of worshippers, upon their entry into the venue of religious services.
It was against Regulations (No. 9) and (No. 23), that the Appellants in both appeals have mounted their constitutional challenge. The Appellants in the first appeal, Dominic Suraj
and his co-appellants, contend that the Regulations (No. 9) were unconstitutional and ought to be struck out as suchThe second Appellant, Pundit Satyanand Maharaj launched a narrower attack on the Regulations (No. 23). He contended that the imposition of a criminal sanction, for the contravention of the Guidelines was unconstitutional.
Pundit Maharaj was partially successful before the Trial Judge (the Judge). Consequently, the Attorney-General filed a Counter Notice of Appeal. 4 Suraj and his co-appellants were however, altogether unsuccessful in their claim. What follows therefore, is our decision in respect of two appeals and a counter — appeal.
In arriving at our decision, we considered the ambit of the saving law clause and whether the Regulations (No. 9), which were otherwise intra vires the enabling statute, could be struck down as unconstitutional. We also considered whether the Regulations (No.23) had breached the second Appellant's fundamental rights.
For reasons that will be fully explained below, we have held that the Public Health Ordinance 5 was protected by section 6 of the Constitution, as a saved law. Further, the Regulations (No. 9) and (No. 23), being intra vires the Public Health Ordinance were also protected from challenge.
Finally, we held that a literal interpretation of regulations 2(2) and 2(3) of the Regulations (No. 23), did not have the effect of criminalising breaches of the Guidelines and the Judge was plainly wrong so to find.
We therefore dismissed both appeals and allowed the counter-appeal.
Dominic Suraj, a financial forensic investigator, was involved in charitable work. He ministered in particular to Venezuelan refugees and did so through his church Avivamiento Church of Trinidad.
On April 9, 2020, while Covid-19 was raging worldwide, and Trinidad and Tobago was subject to restrictions imposed by the Regulations, Suraj, in furtherance of his mission to the refugees, visited the Alicia's Guest House, St. Anns, for the purpose of preparing a meal for the refugees who were housed there.
At various times during the course of that evening, Suraj was joined by each of his four friends, the other appellants in the first Appeal. At 11pm, police officers entered, arrested them and took them into custody. They were charged for having breached Regulation 3(1)
Suraj and the other appellants insisted that they were not partying. They alleged that there was no loud music and that they were appropriately socially distanced. They contended, as well, that the Alicia's Guest House is private property and not a public place for the purpose of the Regulations (No.9).
These are issues which the Judge did not consider. In our view, he was correct in his approach, since the question whether Suraj and his friends were in breach of the Regulations ought properly to have been considered and determined before the Magistrate, who was seized of the case.
In fact, the charges were heard by her Worship Sarah de Silva and were dismissed in November, 2020. The State filed an appeal on November 3, 2020. That appeal is now pending before the Court of Appeal.
Dominic Suraj filed his Originating Motion on August 15, 2020, together with Marlon Hinds, Christopher Wilson, Bruce Bowen and, Collin Ramjohn. They applied for these items of relief:
“1. A declaration that the Public Health [2019] Novel Coronvirus (2019 Regulations, 2020 (“the Regulations”) made pursuant to the Public Health Ordinance are unconstitutional null and void and of no effect.
2. A declaration that the arresting charging and prosecution of the Claimants for a breach of Regulation 3(1) (b) of the Regulations on April 14, 2020 was unlawful and in breach of the Claimant's constitutional rights.
The Claimants also applied for damages and costs.
Satyanand Maharaj, the Appellant in the second appeal, is a practicing pundit. He is the spiritual leader of the Satyanand Ashram of No. 9 Chootoo Trace, Aranguez. Prior to the onset of the Covid-19 Pandemic, Pundit Maharaj conducted religious services every Thursday at his Ashram. He also offered classes in classical dance, music and Hindi.
Pundit Maharaj initially instituted his claim by seeking leave to apply for judicial review pursuant to Part 56.3 CPR. That application which was filed on August 5, 2020, was subsequently withdrawn on August 14, 2020. Upon granting permission to Pundit Maharaj to withdraw his application for leave to apply for Judicial Review, the Judge also ordered that Mr. Maharaj be at liberty to pursue his constitutional claim. The order of the Judge noted that the Defendant reserved all rights and made no admissions in respect of the merits of the constitutional claim.
By his claim, Pundit Maharaj took issue with the Guidelines for Places of Worship. He recounted that, following the onset of the pandemic, regulations were promulgated under the hand of the Minister of Health. At first, these had no effect whatsoever on religious services or religious gatherings until March 22, 2020 when religious gatherings were restricted to 10 persons. To exceed that number would be to commit an offence which would attract criminal sanction.
It was, however, in the amendment of June 10, 2020, that the Regulations first made reference to the Guidelines. Pundit Maharaj was aggrieved by the substance of the Guidelines. He stated that his Ashram lacked the capacity to afford each worshipper a space of 36 square feet. He stated as well that the Guidelines did not cater for the intricacies of Hinduism, which required him to perform pujas at specific times and places and that he could not shorten his worship time, as required by the guidelines, to 45 minutes.
Pundit Maharaj took greater issue with the procedural aspects of the Guidelines. They were not part of the Regulations and had not been published in the Gazette. They appeared on the website of the Ministry of Health and were removed whenever an updated version was published. They were prepared by unknown public servants and not by Parliament. It was the essence of Pundit Maharaj's case that sub-regulations 2(2) and (3) of the Regulations (No. 23), were in breach of his fundamental rights, in so far as they criminalised noncompliance with the Guidelines.
In answer, the Minister of Health, by his affidavit filed on August 18, 2020 reiterated the seriousness of the pandemic, its danger to lives and its capacity to overwhelm the health system with the potential to render it inaccessible to persons with other life-threatening conditions.
The testimony of the Minister of Health was supported by that of the Chief Medical Officer (‘the CMO’), Dr. Rosham Parasram. Dr. Parasram identified the channels by which Covid—19 could be spread, including the coughs of infected persons and contact with objects and surfaces where infected droplets have landed. Dr. Parasram underscored the danger to older persons and to persons with pre-existing medical conditions. 6
He outlined the recognised measures for curbing the spread of the virus which required minimising the movement and the gathering of people. 7
Dr. Parasram stated that in August, 2020 he advised the Pan American Health Organisation (PAHO) that Trinidad and Tobago was...
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