St. Lucia Bar Association in a tizzy over what some are calling ‘the proposed Hilaire Law!’

Last June the Privy Council issued its judgment on a matter that earlier had been adjudicated both by the high court in Saint Lucia and by the Court of Appeal of the Eastern Caribbean Supreme Court. The main concern centered on whether the Defamation Act 2013 enacted by the Westminster Parliament was imported into the law of Saint Lucia by Article 917A. “In particular,” as the Privy Council put it, “whether the introduction of Section 8 of the 2013 Act of the single publication rule and further provision for the time of the accrual of a cause action means the claim in these proceedings is largely, if not completely, time barred.”

In March 2017, the appellant Ernest Hilaire had filed a defamation claim against Allen Chastanet, who defended the claim pleading the provisions of the 2013 UK Defamation Act. Each party applied to strike out the other’s pleadings. At the hearing to strike out applications, it was agreed that the issue of the importation of the 2013 Act into the law of Saint Lucia should be tried as a preliminary matter, as the viability of each party’s pleading depended on the determination of the issue.

The preliminary issue was tried in the high court by Justice Smith, who in his judgment dated November 2018 held that the 2013 Act is not applicable in Saint Lucia. The respondent Allen Chastanet appealed to the Court of Appeal—before Chief Justice Pereira, Justice Thom and Justice Webster. In its judgment of 16 January 2020, the Court of Appeal held that article 917A was not unconstitutional, that the 2013 Act was imported into Saint Lucia law and there was no irreconcilable inconsistency between the provisions of the 2013 Act and the provisions of article 917A, except in Section 8 (3) which was inconsistent with article 2123 of the Civil Code. However, the inconsistency was reconciled by reference to the principle of mutatis mutandis as contained in article 917A. The appellant Ernest Hilaire applied for permission to appeal to the Judicial Council of the Privy Council. Leave was granted by order dated 10 November 2020.

Despite its title, the board noted, “the Civil Code was not clearly intended to be an exhaustive statement of law applicable in Saint Lucia to the exclusion of any other legal instruments. So much was common ground between the parties in this appeal. Article 917A was first introduced into the Civil Code in 1956, when Saint Lucia was still a British colony, by Act 34 of 1956.This amending Act effected major revisions of the Civil Code. It was enacted by the Governor acting on the advice of the then Legislative Council of Saint Lucia pursuant to the power conferred by the Saint Lucia Legislative Council in 1951. The order established the Legislative Council, which included members nominated by the Governor and members elected in accordance with the laws as to elections made under the order. The council’s adoption of article 917 in 1956 was part of a process of assimilation of the Civil Code to the law of England.

“Article 917A comprises two limbs. The first limb provides that with effect from the coming into operation of the article, the law of England for the time being related to contracts, quasi-contracts and torts shall mutatis mutandis extend to Saint Lucia. The second limb provides that the provisions of the articles 918 to 989 and 991 to 1132 of the Civil Code shall as far as practicable be construed in accordance with the change effected by the first limb. The second limb further provides that articles 918 to 989 and 991 to 1132 shall cease to be construed in accordance with the law of Lower Canada or the Coutume de Paris.”

According to the Board: “It is clear that the second limb does not apply to articles 989A-989S, which were introduced into the Civil Code at the same time by Act 34 of 1956 and of which articles 989F-989S relate specifically to the law of defamation. The new articles are not sub-articles of the existing article 989 but deal with entirely separate matters. Article 917A (3) provides that the provisions of the Civil Code or other Saint Lucia statute prevail if there is a conflict with the law of England.”

As for Senior Counsel Anthony Astaphan’s submission on behalf of the appellant Ernest Hillaire, that article 917 is inconsistent with various sections of the Constitution of Saint Lucia and therefore is invalid to the extent of that inconsistency, the Board cited and agreed with the Eastern Caribbean Court of Appeal’s Justice Webster when he countered: “I do not see any reason why an existing law such as article 917, which purports to import the law of England, should become ineffective on the attainment of Independence unless there was something in the Independence legislation that expressly or by implication abrogated the article. There is no such provision in the Independence legislation and, as I have found, Parliament’s power to legislate for the importation of laws made by a foreign parliament is not a delegation of its law-making power. Rather, it is an expression of the local sovereign Parliament’s law-making power subject only to any inconsistency with any provision of the Constitution. It is not inconsistent with Section 40 the Constitution . . .

“The Board agrees with this reasoning. In 1956, when article 917A was first adopted pursuant to legislation made by the Governor, Saint Lucia was still a colony. Section 17 of the Legislative Council Order 1951 empowered the Governor, with the advice and consent of the Legislative Council, to make laws for the peace, order and good government of Saint Lucia—words connoting ‘the widest law-making powers appropriate to a Sovereign’. It is not suggested the enactment contravened the Colonial Laws Validity Act 1865 which provides that colonial laws may be void to the extent that they are repugnant to the provisions of an Act of Parliament extending to the colony or to orders or regulations made under such an Act. It clearly was validly enacted. Indeed, the Board does not understand the appellant to contend that article 917A was invalid at the time it was adopted.”

Moreover: “Independence, of itself, does not take away or alter existing laws unless the independence legislation does so expressly or by necessary implication. Thereafter, the continuing validity of pre-Independence laws is a matter for regulation by the law-making bodies of the new State.”

And then there is this, like much of the preceding, taken from the Privy Council’s judgment published in June 2023: “The effect of Section 8 of the 2013 Act in English law is therefore that a claimant has one year from the first publication of a libel to bring his proceedings, however many times the libel is repeated . . . Mr. Hilaire lodged his claim against Mr. Chastanet on 20 March 2017. The statement of claim alleges the libel was contained in a letter sent by Mr. Chastanet on or about 21 March 2016. A passage of that letter set out in the statement of claim referred to an earlier letter of 16 December 2015 in which the same allegations had been made by Mr. Chastanet. The pleading also sets out, as particulars in support of innuendo meanings alleged, statements Mr. Chastanet made in an interview on a talk show in November 2015 . . . All of those occurred more than one year prior to the commencement of these proceedings.”

The detailed judgment ends with the Board’s undertaking that, “in light of the reasons set out, to humbly advise His Majesty that the appeal should be dismissed.”

A short time afterward, Ernest Hilaire told reporters in Saint Lucia: “My case was filed and pursued under the law as it is known to exist in Saint Lucia. Allen Chastanet defended his actions by using the English statute law and not the Saint Lucia statute law that has always been used in Saint Lucia. The decision cannot be appealed any further and as such all that’s left to be done is await the advice of the attorney general on the corrective measures that need to be taken to ensure the law of Saint Lucia is certain and not left with such ambiguity. I will be consulting my lawyers on the next steps in the hearing.” He was not asked by the reporters and did not tell what was the referenced ambiguity.

Since then, there has been no official word on the matter. At any rate, not from Hilaire or from his former personal legal representative Leslie Mondesir, now Saint Lucia’s attorney general.   But it seems the Saint Lucia Bar Association has been arguing since December 2023 about a draft bill “regarding importation of the laws of England and the impact on the Hilaire v Chastanet decision.”

More than one concerned lawyer has privately pointed out to me that “the very title of the Bill [Application of United Kingdom Law Bill] is misleading.” Their shared view is “it seeks particularly to exclude the importation of UK law that has formed a significant part of the Saint Lucian legal framework for over 44 years.” A major contention by Bar Association members is that “comprehensive law reform is required, and the urgency in advancing this bill indicated by the Bar president is unwarranted and suspect. It also creates the impression that a particular government minister must as quickly as possible be appeased—or else.”

One seasoned member of the legal fraternity sniffed: “It’s as if he wants to warn friends and opponents, including both the OECS Court of appeal and the Privy Council, that he wields unlimited power.”

By informed account, a missive to the Bar membership from their president expresses her disagreement with the reasoning of both the Court of Appeal and the Privy Council. She also does not agree with fellow lawyers who insisted that more time is required to consider the proposed Bill. Neither does she recognize any need of special consultancy services.

Especially instructive is the following from Mde President: “We all know that one cannot express an opinion nowadays without being labeled, and these days, shockingly, not expressing an opinion also gets you labelled. We have become so polarized that the silent majority is being eroded. But it is not dead.”

Labelled as what? (It comes to mind that shortly after the current government took office in 2021, a pending court case brought by the Customs department against then opposition MP Ernest Hilaire was withdrawn without public explanation. Hilaire’s related comment to the press at the time was that since his party had been returned to office, he now had the power to take revenge on his enemies. Perhaps sensing the impact of his words even on seasoned media representatives, he quickly added: “I have the power to do that—but I won’t.”)

The Bar president saw no need to elaborate on what, by her own discombobulating declaration, “we all know.” Her ominous note ended with an appeal to association members to pay outstanding Bar dues for 2024, “because a more visible bar will become a more active Bar, and a more active Bar will become a more respected Bar.”

Respected by whom? That, too, the Bar president cautiously kept to herself!