Maroc - NEWSDAY.CO.TT - A la Une - 30/Sep 03:22

Appeal Court: Covid border closure draconian, illegal

Two women stranded in the US after TT closed its borders during the covid19 pandemic in March 2020, and appealed the dismissal of their constitutional challenge, will be compensated for their losses. Justices of Appeal Nolan Bereaux, Mark Mohammed and Ronnie Boodoosingh delivered the landmark ruling on September 29. They described the State's actions as "draconian" and a breach of a citizen's right to "come home." Raehana Lorick and Joanne Pantin sued after then-national security minister Stuart Young failed to disclose the policy governing exemptions under the public health regulations. Lorick left for Canada in February 2020 for medical treatment, while Pantin travelled to Miami in March 2020 to help her daughter. The borders were closed on March 22, 2020, and the women applied in June for exemptions to return. Their lawsuit, filed in July 2020, was partly dismissed by Justice Betsy Ann Lambert-Peterson in February 2022. She found no breach of their constitutional rights to movement, liberty, property, or protection of the law. Lambert-Peterson rejected claims they were rendered stateless, ruled there was no non-disclosure of the exemption policy, and said they had an alternative remedy through a freedom of information request. She ordered them to pay the State’s legal costs. The women eventually received exemptions in August and September 2020. In their original complaint, the women said they were left on the brink of financial and emotional ruin. A video recording by Pantin was also used as evidence in the case. In the video, Pantin described herself as “a broken human being.” In their two-part unanimous ruling – Justices Bereaux and Boodoosingh delivered separate decisions to which Justice Mohammed concurred – they reversed the High Court orders. They also ordered compensation for the women by a different judge. Cost orders against the women were also reversed. They found that the government’s failure to disclose the policy and criteria for re-entry into TT amounted to a breach of constitutional rights under sections 4(a) and 4(b), which protect liberty, due process, and the protection of the law. Senior Counsel Anand Ramlogan, representing the women, told the media at the Hall of Justice, Port of Spain, the ruling was a victory for those nationals stranded overseas when the pandemic hit. "People may have forgotten, but when we closed our borders… The inhumane, cruel, and oppressive manner in which our citizens who were stranded overseas were treated by the then government remains a stain on the nation's conscience. “People who were trapped when those borders were closed because they went on an ordinary vacation, or to visit their grandchildren or just on a medical trip, as these two clients did, when the borders were closed, it felt like a guillotine on their lives. They were stranded overseas and told to shelter in place by then-Minister Stuart Young. “Shelter in place where? We turned our backs on our citizens, we closed the doors on them, and we left them out there to suffer. Some of them were living in parks, in homeless shelters, and some of them became vagrants while they had their homes here in Trinidad, and could not get back.” Ramlogan said other countries in the world treated their citizens more humanely. “When the borders were opened, the rich and famous were allowed to come back…party financiers, party friends were allowed to re-enter TT first, whilst those who were vulnerable, poor and unable to afford to remain outside Trinidad were not treated fairly and equitably, and this judgment vindicates their rights.” Ramlogan and his legal team, through freedom of information requests, were provided with the names of those who were allowed to return. “There was no transparency by the government in how they approached the question of reopening the borders and who would get to come in first, and how they would manage that process. It was shrouded in mystery, secrecy and obscurity, and it was very obscure and it provided fertile soil for favouritism, political nepotism and unfair and unjust treatment.” Attorney: Young was 'playing God' He said those in charge of the government and the management of the pandemic, at the time, should “all hang their heads in shame and disgust because of the way they treated ordinary citizens who happened to have just been outside the country when the borders were closed by government policy.” He named Young, former health minister Terrence Deyalsingh and Chief Medical Officer Dr Roshan Parasram. Ramlogan said the ruling was historic. “It is also a stinging indictment on the way the PNM administration managed the reopening of our borders during the pandemic.” “This judgment clears the way for other citizens who were similarly circumstanced to sue for the breach of their constitutional rights.” He added, “Stuart Young was, in effect, ‘playing God’, by secretly deciding who could return home and who could not. Many citizens died grieving to return home, poor, homeless and heartbroken. “Those responsible for the human disaster should hang their heads in shame and disgrace,” he repeated. In his ruling, Bereaux disagreed with the trial judge’s finding that the women had failed to show exceptional circumstances. He said the conditions they faced were dire and more than sufficient to qualify as exceptional. Bereaux noted that the women were forced to shelter in foreign countries with limited financial means, while Lorick also had to protect her infant children from the deadly virus. “A decision whereby an exemption to re-enter TT is refused to a national is most certainly a penalty. It matters not if one will be granted at a later date. The fact is that at the time of the refusal, the national is prevented from exercising his constitutionally guaranteed right to return to his or her home country on account of a failure to satisfy some condition. “The other side of the coin is also true, the grant of an exemption is a benefit to the recipient since that national can now operationalise his right to return to the country. “It is, therefore, imperative that the individual has notice of what are the factors which support the grant of an exemption so that ‘informed and meaningful representations' may be made and adverse decisions challenged. “By being so informed and able to challenge the decision, he is afforded the protection of the law. The opportunity to challenge is also an exercise of due process of law. Any failure to inform is a breach of the right.” He also said the women were entitled to bring constitutional proceedings to vindicate their rights, stressing that the alternative of filing a freedom of information request was neither practical nor effective given their circumstances. Bereaux observed that the State’s lack of transparency meant citizens were “shooting in the dark” when applying for exemptions, creating fertile ground for arbitrariness and unfair treatment. In particular, the ruling pointed out that the plight of Lorick—who had communicated her situation since May 2020—should have met the government’s undisclosed criteria much earlier, and that delayed disclosure exacerbated the breach of her rights. The Appeal Court ruled that the prohibition on nationals returning to their own country was a serious restriction on liberty. In his ruling, Boodoosingh also acknowledged that while the State had the authority to close its borders during the pandemic, preventing citizens from returning was a “draconian” measure that had to be carefully justified. He observed that although many countries restricted travel, very few denied entry to their nationals. “A citizen ought to be free to travel out of the country, with the assurance that he or she will be allowed back entry into the country; to be able to go and come, as it were. A citizen’s re-entry to their home country is a most fundamental right. It forms part of the essence of citizenship that you feel the minute you land in your home country; you’re home. There is no place like home; it is in our DNA, as (soca star) Mical Teja has reminded us. "To be denied that right, even for a period of time, must be carefully and exceptionally restricted, and only in the least intrusive and most transparent way.” He said once the government introduced an exemption system requiring citizens to seek permission from the minister of national security to re-enter, there was a duty to publish the policy and criteria governing exemptions. The absence of such disclosure, he held, undermined constitutional rights and created a process that was neither transparent nor certain. The judges concluded that the failure to disclose the exemption criteria until July 24, 2020, breached the women’s rights and even if the State maintained there was a policy, the fact that citizens did not know its contents meant their rights were unjustifiably curtailed. In arguing the appeal, Ramlogan said the lack of a published policy left his clients “in desperation and despair,” while others, including prominent businessmen, were granted entry. Senior Counsel Russell Martineau, for the State, countered that the pandemic was “an evolving situation” and there was no obligation to publish a shifting policy. He said applications were considered individually, and non-publication did not infringe constitutional rights. Also appearing for the women were Jared Jagroo, Natasha Bisram and Denelle Singh. Vanessa Gopaul, Raphael Ajodhia and Kendra Mark-Gordon appeared for the State. The post Appeal Court: Covid border closure draconian, illegal appeared first on Trinidad and Tobago Newsday.