In 2013, several months after then prime minister Kenny Anthony had announced the U.S. State Department’s decision to cut off all assistance to the government of Saint Lucia in retaliation to the prime minister’s perceived reluctance to act on allegations of “gross violations of human rights” by members of his police force, his government filed claims against Allen Chastanet and Kenneth Cazaubon. The first mentioned had been the tourism minister in the 2006-2011 UWP government of Stephenson King; Cazaubon is a former chairman of the Soufriere Town Council.
The government’s main claim (amended on 21 January 2014) was that Chastanet had “requested, advised, received, permitted or acquiesced in the expenditure of council funds for the unlawful purpose.” Moreover that the funds were raised by Stephenson King “for specific community projects from the government of Taiwan” and that Chastanet was aware, or should’ve been, or was “recklessly indifferent to the fact that the conduct in question was unlawful” and amounted to “misfeasance in public office.” (Misfeasance is defined as “improper and unlawful execution of an act that in itself is lawful and proper.”)
As for Cazaubon, the Kenny Anthony government claimed he “abdicated his authority” when at Chastanet’s behest he caused council funds to be unlawfully used as payment for expenses incurred in the promotion of a political event. For his part Chastanet filed on 7 January 2014 an application to strike out the government’s claim, on the basis the court lacked jurisdiction to hear it because there was no clear pleading that the money spent belonged to the government. Chastanet later amended his application to strike on the basis the government lacked standing to pursue its claim.
According to court documents Chastanet’s amended application was heard on 5 December 2014, at which time he was granted leave further to amend his pleadings. The government was allowed a further amendment on 23 April 2015 so as to assert its ownership of the monies. “No defense or amended defense or additional affidavits were ever filed in reply to the further amended statement of claim.”
Moreover, there was “no indication that the learned judge was aware of the further amended statement of claim before he rendered his judgment.”
He focused “exclusively on the amended claim and made several findings of fact based on those pleadings, notwithstanding that the further amended statement of claim had overtaken the amended statement of claim. It is important to note that the learned judge made those findings before any evidence was taken in the trial. The judge found that the attorney general did not have locus standi to bring the claim and struck it out on that basis. The judge also ordered costs against the attorney general.”
The Kenny Anthony government appealed the decision on several grounds, the central issue being whether the learned judge erred in striking out the amended statement of claim on the basis that the AG had no standing to bring it in view of the fact that the amended claim had been overtaken by a further amended statement of claim. Chastanet’s lawyers strenuously resisted the appeal and argued that among other things the learned judge was correct in striking out the claim on the basis the AG lacked standing to bring the claim that relies on the provisions of the Local Authorities Ordinance to show that the Council is a separate legal entity.
The appeal court this week issued its order setting aside the previous judgment, remitting the further amended claim to be case-managed by a different judge, each party bear its own costs. Considering the history of the involved parties, it is hardly surprising that the appeal court’s decision has inspired much public speculation. Since the June 6 general elections, there has been widespread discussion about the AG’s immediate future. By some accounts the Kenny Anthony government had contracted the AG’s services until 2018, despite that a general election was scheduled for 2016 at the latest, with the possibility of a new government being elected to office. Now that the people have disposed of the Anthony government for reasons that quite possibly included its leader’s well publicized attitude to Allen Chastanet and his father Michael, will the AG’s office pursue the dumped regime’s allegations regardless? On whose instructions? How will she advise the Allen Chastanet government?
Interesting to note: In a letter dated 22 July 2012 the AG addressed to the Cabinet secretary as follows: “By letter dated 10 April 2012, Mr. John T. Mathurin, further to an audit being carried out of the Town, Village and Rural Councils, indicated the need for a legal opinion from Chambers with respect to funds received by councils from the Taiwanese, Moroccan and Japanese governments. Specifically the questions posed were: Whether funds received and deposited into bank/credit union accounts can be classified as payments to the Ministry of Finance in the context of the stipulation in Section 30 of the Local Authorities Ordinances; whether the funds were legally received in the context of the stipulations in Section 31(e); whether bank credit/union accounts opened by the permanent secretary in the Ministry of Local Government in the names of councils and those opened by councils of their own volition were legally opened. To be noted is the fact that the Constituency Councils Act No. 1 of 2012 repealed and replaced the Local Authorities Ordinance Cap 242 of the Revised Laws of Saint Lucia 1957, the Castries Corporation Act, Number 4 of 1982 effective 16 April 2012. This in effect preserves the rights and entitlements of councils to any funds to which they were previously entitled.”
Moreover: “Any funds received by the council as a donation or gift would have fallen within Section 31 of the now repealed Local Authorities Ordinance and would be vested in the council and form part of the Urban, Village or Rural District Fund.” Finally: “Obviously funds withdrawn without the authority of the prescribed officials need to be accounted for. But the moneys, however held or designated, belong to the respective councils and are public funds belonging to the respective special funds but not due to be paid into the Consolidated Fund. The difference in these funds is more in nomenclature rather than treatment.”
Of course, governments can choose to take or to discard the advice of their legal advisors, regardless of cost. In her time the attorney general Lorraine Williams had advised the day’s government against the dismissal of audit director Emma Hippolyte. The AG’s advice was ignored. Ms Hippolyte successfully sued for wrongful dismissal and was awarded damages. Once again the taxpayer took it in the neck. Casting nightmarish clouds on the precedential conundrum is the former prime minister Kenny Anthony’s unforgettable repeated public declaration that the 2016 general elections would be “between the Chastanets and the Saint Lucia Labour Party.” Whom to blame, then, if the court of public opinion should dismiss the previous government’s allegations as no more than abuse of office? Certainly Saint Lucians were overly aware of the for PM’s allegations leveled at Chastanet in the years leading up to the elections. Reference to the matter from the steps of the Castries market had triggered the DPP’s unforgettable public assessment of the so-called IMPACS report—that it contained nothing of value to her office.
The matter at hand offers several important lessons—not to say reminders—among them “that we but teach bloody instructions, which being taught return to plague the inventor.” Footnote: In November 2004 then prime minister Kenny Anthony released the result of a one-man investigation into what the press referred to as “the Helenites Affair” and the government as “the circumstances surrounding the attempted transfer of title to the property situated at 438 East 49th Street, Brooklyn, New York and the facilitation of a mortgage of US$150,000 on the said property.”
The commissioner, former judge Albert Matthew, reported: “The acts of impropriety and misfeasance that I find include the transfer of title to the center from the government of Saint Lucia to Michael Bartlett without the knowledge of the government; the facilitation of a loan over the property without the approval of the government and the engagement of real estate agents in respect of the redevelopment of the center, again without the knowledge of the government.” The judge laid full blame on the shoulders of Saint Lucia’s UN ambassador, Earl Huntley. But Huntley was never required to face a judge and jury—despite the cost of his “impropriety and misfeasance.” Indeed, such faith did his
prime minister retain in Huntley that he entrusted in his hands the secrets of Grynberg.
As for the former prime minister whose lawyer laid against Allen Chastanet in 2013 charges of misfeasance, an inquiry into his involvement in the so-called Rochamel-Frenwell scandal revealed the following, courtesy Sir Ramsahoye Fenton: “We consider that the loss which the government and people of Saint Lucia suffered in this matter was the result of maladministration and we would recommend that where the government enters into contracts for the procurement of goods and services, the law regulating such agreements should be strictly followed. The government paid money to the Royal Merchant Bank of Trinidad and Tobago in the sum of US$14,592,350 for the debts of Frenwell Limited—with which it had no contractual or other relationship and the money spent was irrecoverable.” All of that unknown to parliament and the people of Saint Lucia!
Again, there was no follow-up court trial. By the way, this is how one of my dictionaries defines maladministration: “The conduct of public officers and the practices, policies and procedures of public authorities, that results in an irregular and unauthorized use of public money, the substantial mismanagement of public resources, or the substantial mismanagement of official functions.”
Another definition: “To administer or manage inefficiently or dishonestly.” Why must pots call kettles black?
But to revisit the main event: Appearing for the respondents were Mr. Garth Patterson QC and Mrs Petra Jeffrey-Nelson. Anthony Astaphan SC, Mr. Leslie Mondesir and Senior Crown Counsel Dwight Lay represented the government. It is conjectural whether the Astaphan threesome will continue in their present roles as the case progresses!