THE Court of Appeal of the Eastern Caribbean Supreme Court has ordered that the defamation case between Prime Minister Allen Chastanet and Castries South Parliamentarian Ernest Hilaire be sent back to the High Court.
How did the case reach that stage and what exactly were the points of contention that sought the Appeals Court intervention?
It was in March 2017 when Hilaire, a former High Commissioner for Saint Lucia to the United Kingdom and a member of the House of Assembly, filed a defamation claim against Chastanet. Chastanet defended the claim relying substantially on the provisions of the Defamation Act 20132 of the United Kingdom contending that it was imported into Saint Lucia by article 917A of the Civil Code.
Both men, in the lower court applied to strike out or summarily dismissed each other’s application, meaning that during the proceedings Chastanet applied to strike out or summarily dismiss Hilaire’s claim while Hilaire applied to strike out or dismiss Chastanet’s claim.
According to court documents at the hearing of both applications in the trial court, counsel for the parties agreed that the issue of the importation of the Act into Saint Lucia should be heard first since the viability of each party’s pleadings depended on the outcome of the issue. The trial judge tried the issue of the importation of the Act into Saint Lucia as a preliminary issue and found that article 917A did not import the Act into Saint Lucia. Chastanet appealed that decision.
Hilaire opposed the appeal claiming that if article 917A of the Civil Code imported the Act into Saint Lucia it would be repugnant to Parliament’s law-making power under section 40 of the Constitution of Saint Lucia and as such, it would be inconsistent with section 120 of the Constitution and be void. Chastanet’s preliminary objection was that Hilaire could not raise this issue on appeal.
Article 917A (1) of the Civil Code states that:
“Subject to the provisions of this article, from and after the coming into operation of this article the law of England for the time being relating to contracts, quasi-contracts and torts shall mutatis mutandis extend to Saint Lucia, and the provisions of articles 918 to 989 and 991 to 1132 of this Code shall as far as practicable be construed accordingly; and the said articles shall cease to be construed in accordance with the law of Lower Canada or the ‘Coutume de Paris’:…”
Chastanet’s legal team headed by Garth Patterson, QC and which included Mark Maragh, submitted that Hilaire cannot challenge the constitutionality of article 917A in the Appeals Court for two reasons. Firstly, he did not file a counter-notice of appeal challenging the trial judge’s decision not to deal with his constitutional challenge, and secondly, it was noted that even if Hilaire had filed a counter-notice of appeal, the Appeals Court would not have the power to deal with the challenge because the High Court had not made a ruling on the point and therefore there was nothing to appeal against.
The appeals Court judges who heard the case were Dame Janice M. Pereira, DBE Chief Justice, Mde. Gertel Thom, Justice of Appeal and Paul Webster, Justice of Appeal [Ag.]
They concurred that the Court of Appeal has the power, in appropriate cases, to deal with an issue that was raised in the proceedings in the lower court even if the party affected by the issue did not include the point in a notice of appeal or counter-notice of appeal, as the case may be.
Hilaire contended that the law-making function requires the judgment of the elected members of Parliament to make laws in the public interest, a constitutional obligation that cannot be delegated to a foreign Parliament. He noted that there cannot be two law-making bodies. Article 917A, which was an existing law when the Constitution became effective in 1979, must be construed in accordance with the Constitution and in so far as the article purports to import statutes made by the Parliament of a foreign state, in this case England, it is inconsistent with section 40 and is therefore void under section 120.
Chastanet contended that in enacting the Defamation Act, the Parliament of the United Kingdom was not legislating for Saint Lucia. He noted that the UK Parliament did not have in its contemplation making laws for Saint Lucia or any other country outside of the UK. Further, that it was the Parliament of Saint Lucia that chose to import the statutes of England by enacting article 917A of the Code, and similar articles. More fundamentally, it was not inconsistent with Parliament’s law-making function in section 40 of the Constitution for existing laws such as article 917A, which import the relevant foreign statutes, to continue to be effective after the independence Constitution became effective.
The judges concurred that they did not see any reason why an existing law such as article 917A 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 of the Constitution,” wrote Justice Webster and concurred by the two other justices.
“I would dismiss the respondent’s (Hilaire’s) contention that the power to import the Defamation Act into Saint Lucia via article 917A was unconstitutional,” Justice Webster further noted.
According to court documents the central issue in the appeal was the meaning and effect of article 917A of the Code. Chastanet contended that the article imported the entire law of England, including statutes, in relation to contracts, quasi-contracts and torts. This includes the Defamation Act which was imported into Saint Lucia and forms part of the laws of the State upon enactment by the UK Parliament in 2013.
Renée St Rose who appeared for Hilaire together with Thaddeus Antoine and Ann-Alicia Fagan opposed this interpretation of article 917A contending that the article imported only the common law of defamation and not the Act.
The justices concurred that this was a point of considerable importance not only for Saint Lucia but the entire Eastern Caribbean because there are similar provisions in the laws of all other states and territories that import, in various ways, the law and practice of England.
“I am satisfied that article 917A means what it says and that it imports into Saint Lucia the law of England relating to contracts, quasi-contracts and torts, which includes the statutes of England relating to these areas of the law. To sum up, I find that article 917A was effective in importing the Defamation Act into Saint Lucia and abolished the common law defenses of justification and fair comment which no longer exist in Saint Lucia. A defendant to a claim for defamation must now rely on the defenses set out in the Act,” wrote Justice Webster and concurred by the others.
He added, ‘Finally, I note that the learned judge, having found that the Act was not imported into Saint Lucia, struck out the part of the appellant’s (Chastanet’s) application seeking to strike out the claim. That decision must now be reversed.”
Justice Webster concluded that article 917A of the Code is not unconstitutional; the Defamation Act was imported into Saint Lucia pursuant to article 917A of the Code and that the Defamation Act is not inconsistent with the Code except in section 8(3) which is inconsistent with article 2123. That inconsistency is reconciled by applying the principle of mutatis mutandis and reading section 8(3) of the Defamation Act to conform to article 2123 of the Code.
The judge allowed the appeal, set aside the order of the High Court judge and remitted the case to the trial court for dealing with the outstanding interlocutory applications including Chastanet’s application to strike out the claim.
He awarded costs of the appeal to Chastanet summarily assessed at $5,000.00.
