DEREK ACHONG
Over 300 bar owners and operators have been given the green light to sue the State over a recent move to reduce the opening hours for their businesses under ongoing COVID-19 public health regulations.
Guardian Media understands that lawyers representing the Barkeepers and Operators Association of T&T (BOATT) and 316 of its members filed the judicial review lawsuit yesterday afternoon and got an urgent ex-parte leave hearing before Justice Avason Quinlan-Williams at 5 pm.
After a brief virtual hearing, Quinlan-Williams granted the association and its members leave to pursue the lawsuit after ruling that they had presented an arguable case with a realistic prospect of success.
The case is expected to come up for hearing, next Monday.
In the court filings, obtained by Guardian Media, the association and its members claimed that the change announced soon after such establishments were allowed to reopen, late last month, was inherently discriminatory.
The association contended that the move gave businesses that operate as restaurants/bars an unfair advantage as they are allowed to open till 10 pm as opposed to 8 pm for businesses that are solely considered bars.
“No justification has been given for the difference in treatment as for all practical purposes the bar area in restaurants operate in a separate area and as a separate business,” the association’s legal team led by Senior Counsel Anand Ramlogan said.
The legal team also sought to challenge the justification for the move given by the government, which was that people were not practising social distancing or wearing masks when bars were allowed to reopen.
Stating that the government failed to bring legislation making social distancing or masks mandatory.
“What exists is a policy which has no legal effect that persons must socially distance themselves and wear masks, a policy which persons are free to deviate from with any form of legal sanction,” they said.
They questioned the current validity of the regulations as they claimed that the conditions that existed when they were made under the Public Health Ordinances of 1940 in March, have changed.
“Having regard to the status quo in T&T, and the lack of any community spread and closure of borders for more than three months, the relevant regulations are clearly unlawful and void,” they said.
They also claimed that the regulations are unconstitutional as they affect their clients’ constitutional rights including the right to the enjoyment of property. Saroop claimed that such could have been lawful if it withstood Parliamentary scrutiny.
“It would be perverse, absurd and illogical if regulations that are inconsistent with the fundamental rights in sections 4 and 5 of the Constitution, may be enacted without the need to adhere to the requirements of section 12 (no need to involve Parliament at all), whilst an Act of Parliament which expressly declares that it is inconsistent with section 4 and 5, is liable to invalidation,” they said.
Through the lawsuit, the association is seeking a declaration that the policy is null, void, and of no legal effect. It is also seeking financial compensation.
The association is also being represented by Renuka Rambhajan, Douglas Bayley, and Ganesh Saroop.
