Appeal Court reserves ruling on failure to publish covid19 travel exemption policy

The content originally appeared on: Trinidad and Tobago Newsday

Justice Betsy Ann Lambert-Peterson. – File photo

TWO women who were stranded in the United States when Trinidad and Tobago’s borders were closed because of the covid19 pandemic in July 2020 have appealed a judge’s dismissal of their lawsuit.

The women – Raehana Lorick and Joanne Pantin – had complained of the failure of then-National Security Minister Stuart Young to disclose the policy for travel exemptions under the public health regulations.

Lorrick travelled to Canada on February 19, 2020, for medical treatment while Pantin travelled to Miami on March 14, 2020, to assist her daughter.

Trinidad and Tobago’s borders were closed on March 22, 2020, and in June, the two applied for an exemption to return home.

They then filed their lawsuit on July 21, 2020, and their application for leave was granted by Justice Betsy Ann Lambert-Peterson. They withdrew their judicial review complaint against the minister and the judge, on February 18, 2022, dismissed the constitutional aspects of their claim against the State.

In her ruling, the judge held there was no breach of the women’s rights to freedom of movement, liberty, enjoyment of property and protection of the law nor were they deprived of their rights.

She ordered them to pay the State’s costs.

The women were eventually granted exemptions in August and September 2020.

Lambert-Peterson said she was not satisfied there was non-disclosure of the policy. She also dismissed their arguments that they were rendered stateless and although she expressed concern that they suffered hardship because of the border closure, she said it did not amount to a failure of protection of the law.

The judge further held there was no evidence they were denied entry and said they had an alternative remedy by a freedom of information request.

On February 6, Justices of Appeal Nolan Bereaux, Mark Mohammed and Ronnie Boodoosingh reserved their ruling on the women’s appeal.

The women’s attorney, Anand Ramlogan, SC, said the judge’s ruling was contradictory since her findings in her written reasons were different to those she gave in her earlier oral decision.

This, he maintained, was unfair and prejudicial.

However, Ramlogan was told by Bereaux that the judge was entitled to adjust her oral reasons so the court is not likely to find favour with that complaint.

“We will look to see if there are errors in her written reasons,” he said.

In his arguments, Ramlogan insisted that the failure to provide a written policy led his clients to “desperation and despair.”

“You’re dealing with human lives here…Others were getting in…Millionaires were being allowed in,” he said as he referred to prominent businessmen who were granted exemptions while, at the time, his clients were not.

“It was arbitrary conduct on the part of the minister to close the borders and have a policy/criteria in place but not disclose it to us.

“We were kept in the dark and were only being told to shelter in place.”

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.” Ramlogan also said the situation left many “suicidal.” Ramlogan also said it was unfair for the judge to order his clients to pay the State’s costs.

He also said the State’s position that the women could have asked for the criteria with a freedom of information request was “manifestly untenable, unfair and arbitrary.”

In response, Senior Counsel Russell Martineau reminded the judges, “This was a pandemic that affected us all.”

He said at the time, little was known about the virus internationally.

“We were dealing with an evolving situation. There was a concern that people would be coming in with the virus.”

Martineau said there could be no obligation to publish a policy which was evolving.

“How much detail was required to be disclosed?”

“We were dealing with unpredictable events in TT,” he said, adding that applicants were being dealt with on a case-by-case basis.

“And, this was made known.”

Martineau said non-publication was not substantial enough to impact their rights.

“They are not complaining of their treatment but non-publication.”

What could have been an infringement, he said, were the regulations which prevented them from returning home.

“There is nothing in the Constitution of a fundamental right to publication. There is no obligation in public law to promulgate a policy and no obligation to publish.”

Also advancing submissions on behalf of the State was attorney Vanessa Gopaul.

The women were also represented by attorneys Jared Jagroop, Ganesh Saroop and Dr Che Dindial while Raphael Adjohia also represented the State.