CHASTANET INHERITS KENNY v CHASTANET!

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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 trig­ger the DPP’s un­for­get­table pub­lic as­sess­ment of the so-called Gryn­berg 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 RochamelFren­well 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!

Will the new prime min­is­ter Allen Chastanet (left) in­herit the lauded tal­ents of genius Do­mini­can lawyer An­thony Astaphan QC (cen­ter)? And what will Chastanet’s pre­de­ces­sor (right) do to bring to­gether the first men­tioned two?

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