Takeisha Clairmont v The Minister of Health

• Jurisdiction: Trinidad & Tobago
• Judge: Madam Justice Eleanor Joye Donaldson-Honeywell
• Judgment Date: 29 March 2021
• Neutral Citation: TT 2021 HC 64
• Docket Number: Claim NO. CV2020-03855
• Court: High Court (Trinidad and Tobago)

IN THE HIGH COURT OF JUSTICE

Port of Spain (Virtual Court)

Before

the Honourable Madam Justice Eleanor Joye Donaldson-Honeywell

Claim NO. CV2020-03855

In The Matter Of an Application by Takeisha Clairmont for an Administrative Order Under Part 56 of the Civil Proceedings Rules, 1998

And

In The Matter Of The Action and/or Decision of The Minister Of Health To Implement The Mandatory Closure Of Borders To Citizens Of The Republic Of Trinidad And Tobago Subject To The Grant Of An Exemption By The Minister Of National Security As Contained In The Public Health [2019 Novel Coronavirus (2019-Ncov)] Regulations, 2020

And

In The Matter Of The Constitutionality And Validity Of The Public Health [2019 Novel Coronavirus (2019-Ncov)] Regulations, 2020 Which Were Issued By The Minister Of Health

And

In The Matter Of An Application For Redress In Accordance With Section 14 Of The Constitution By Takeisha Clairmont A Citizen Of The Republic Of Trinidad And Tobago Alleging That Certain Provisions Of The Said Constitution Have Been Contravened And Are Being Contravened In Relation To Her

Between

Takeisha Clairmont

Applicant/Claimant

and

The Minister of Health

and

The Attorney General of Trinidad and Tobago

Respondents/Defendants

Appearances:

Mr. Anand Ramlogan S.C., Ms Renuka Rambhajan, Dr. Ché Dindial, Ms. Alana Rambaran and Mr. Ganesh Saroop, Attorneys-at-Law for the Applicant/Claimant

Mr. Reginald Armour S.C., Ms. Vanessa Gopaul, Mr. Raphael Ajodha and Ms. Savitri Maharaj, Attorneys-at-Law for the Respondents/Defendants

A. Introduction

1 The well-known idiom “ Home is where the heart is” captures the sentiment felt by nationals of all States that, wherever they may be in the world, one's home nation retains the strongest pull. This pull includes emotional, economic, social and other factors. The home country is the place where nationals rightfully have a sense of constitutionally protected belonging. As V.S. Naipaul put it “ Home is, I suppose just a child's idea. A house at night, and a lamp in the house. A place to feel safe.” 1 This sense of protection is based on rights enshrined in Chapter 1 Part 1 of the Constitution of the Republic of Trinidad and Tobago.

2 Nationals of Trinidad and Tobago, driven by economic, career advancement opportunities, family responsibilities, medical needs, a spirit of adventure and other push and pull factors travel extensively. This extensive travel includes skilled seasonal workers, national scholars, sports persons, artistes and “barrel parents”. It is so extensive that despite the relatively small population size 2 of the Country, the diaspora of Trinidad and Tobago consists of large settlements of persons in locations such as Brooklyn, Queens,

Miami and Fort Lauderdale in the United States of America, Toronto in Canada and Brixton and Notting Hill in the United Kingdom. Within the hearts of many such persons, there is always the desire to return home

3 As from around December 2019, there have been unprecedented developments arising from the emergence, rapid spread, high fatality rate and emerging mutations of a novel coronavirus called COVID-19 which has caused an ongoing deadly global pandemic. These circumstances bring to the fore the genuine, heartfelt and rights-based need of all nationals to be in their home country where an increased sense of personal security, entitlement to social services, family life enhancement, enjoyment of property and other benefits can be more readily attained.

4 However, due to the highly contagious nature of the COVID-19 virus all jurisdiction, including Trinidad and Tobago, implemented travel restrictions to varying extents at one time or another. The travel restrictions affecting entry to Trinidad and Tobago have been in place for several months. The impact of these travel restrictions has affected many nationals, including Takeisha Clairmont, the Applicant/Claimant in this case, hereafter referred to as “the Claimant”.

5 The Claimant was in the British Virgin Islands [“BVI”] when, on 21 March 2020, she became aware of an announcement that all borders to Trinidad and Tobago would be closed effective midnight on 22 March 2020. It is that decision, embodied in a Regulation that the Claimant challenges in the instant Claim.

6 She had planned to return home on 27 March 2020 but after making several requests, from 24 April 2020 and onwards for an exemption permitting her to enter Trinidad and Tobago, the Minister of National Security only granted permission on 20 August 2020. She returned to Trinidad and Tobago on 13 September 2020 after experiencing harrowing travel difficulties, which she alleges resulted in the miscarriage of a child.

7 The Claimant challenges, on both Judicial Review and Constitutional grounds, the lawfulness of Regulation 10 of the Public Health [2019 Novel Coronavirus (2019)-nCoV)] (No. 31) 3 Regulations 2020 [the “Regulation”] made pursuant to section 105 of the Public Health Ordinance 1940 [“PHO”]. The impugned Regulations effectively authorised and led to the aforementioned 22 March 2020 closure of the borders to all persons from entry into Trinidad & Tobago [“the Country”]. This was subject to the proviso that the Minister of National Security could grant entry permission which, if granted, would exempt the person affected from the impact of the border closure.

8 The Claimant seeks the following in the Judicial Review aspect of her case:

• i. That leave be granted to make her claim for Judicial Review;

• ii. A declaration that the closure of the borders of the Republic of Trinidad and Tobago pursuant to Regulations made under section 105 of the Public Health Ordinance was ultra vires and illegal;

• iii. A declaration that Regulation 10 as contained in THE PUBLIC HEALTH [2019 NOVEL CORONAVIRUS (2019-NCoV)] (NO. 31) REGULATIONS, 2020 is ultra vires, illegal, null and void and of no legal effect;

• iv. An order of certiorari quashing Regulation 10 as contained in THE PUBLIC HEALTH [2019 NOVEL CORONAVIRUS (2019-nCoV)] (NO. 31) REGULATIONS, 2020;

9 As to the Constitutional challenge included in the Claim, the Claimant seeks:

• i. A declaration that the Claimant's rights under the following provisions of the Constitution have been breached:

  • a. The right to liberty: Section 4(a);

  • b. The right to protection of the law: Section 4(b);

  • c. The right to freedom of movement: Section 4(g);

  • d. The right to freedom from arbitrary detention, imprisonment or exile of any person: Section 5(2)(a); and

• ii. A declaration that the Claimant's rights under Section 4(1) of the Immigration Act Chap. 18:01 have been infringed by the illegal and unconstitutional closure of the

  borders of the Country pursuant to Regulation 10 as contained in the Regulations made under section 105 of the Public Health Ordinance.

10 Additionally, as it relates to both the Judicial Review and Constitutional grounds pleaded, the Claimant seeks the following reliefs:

• i. Compensatory damages;

• ii. Vindicatory damages;

• iii. Costs, and

• iv. Interest.

11 At the outset, there is a point raised by the Defendants that must be rejected as without merit. It is that the Claimant's case is merely academic because she was permitted entry and returned home before filing her Claim. It is further suggested that since she did not file the matter as a representative claim to continue the proceedings on behalf of persons who may still be affected by Regulation 10, she has no locus standi. I disagree.

12 The approach of Courts has evolved to one that is not overly restrictive as it relates to locus standi. This was underscored in Dumas v Attorney General of Trinidad and Tobago Civil Appeal No. P 218 of 2014. In a useful Zambian authority 4 cited by counsel for the Claimant, Ngulube, C.J explained

“ on the question of locus standi, we have to balance two aspects of the public interest; namely the desirability of encouraging individual citizens to participate actively in the enforcement of law, and the undesirability of encouraging meddlesome private ‘Attorney Generals’ to move the courts in matters that do not concern them”.

13 The role of citizens like the Claimant in litigating matters of public concern forms a critical pillar in upholding the rule of law particularly in novel areas of potential breaches of human rights. The clarification of areas of law in such matters serves the public interest 5. As such, an unduly restrictive approach to the concept of locus standi, which would discourage this necessary vigilance, is not in my view an appropriate approach to be taken.

In any event, her Claim is not academic as the relief that the Claimant seeks is not limited to declarations. She seeks damages as well

B. Procedural History

14 The procedural history of the matter included an initial hearing before the first docketed Judge, Ramcharan J. At that hearing, based on a joint application by the parties, the case was deemed to be related to the matter of Shirlanne Singh v the Minister of National Security CV2020-02707 and transferred so that the issue of non-justiciability, which was then common to both cases, could be determined. In that case, a Judgment was delivered on 11 December 2020 whereby the Court determined inter alia that the challenge to the manner of implementation of the border closure policy was justiciable. Unlike the related case of Shirlanne Singh, the grounds for challenge to the Defendants' actions in this instance does not include any alleged delay in granting the Claimant an exemption to the border closure measure.

15 At the first hearing after the transfer of this case, parties agreed on the way forward by way of a “rolled up hearing”. Accordingly, directions were given for submissions to be filed on whether leave to apply for Judicial Review should be granted and on the substantive merits of the Claim. It was agreed, however, that the Trial would be split so...