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.