NationBeat - Discussion of the Saint Lucian Civil Code

[music] The panel, the discussion, an objective and impartial view of the issues of interest to you. Nation beat is on now. >> The Senian legal system stands as one of the few demonstrating a hybrid character. Such a phenomenon reflects a centuries long story of conquest, colonization and jud judicial practice which culminated in the duality of our legal system. I am joined by a man who needs no introduction. A pioneer within the realm of our juristprudence who has dedicated numerous writings and commentaries on several aspects of our civil code. Join us as we explore our civil code in its comparative historical, judicial, and philosophical elements. Thank you Dr. How are you? >> You're very kind and generous uh introduction. >> Yes. Not at all. Not at all. I couldn't have fit in all the accolades in this introduction. >> Very generous. >> Yes. Uh as our point of departure, explain to us the difference between the common law system and the civil law system and what exactly it is that constitutes a mix and hybrid legal system. >> Okay. Um the common law system basically is derived from the United Kingdom. As you know over the years um the United Kingdom did have statutory laws but by and large their private law um was governed by judicial decisions. That is to say decisions made by judges over time. Now you are dealing with a judicial system that was established way back over time. So if you want to discover what the English law is, you really have to search through the um judicial decisions over the years and of course modern writings on the common law in the United Kingdom um and the common law um writings would give you some clue of how the law has developed over time. So basically the principal difference would be that the common law system is largely judgemade law supplemented by what parliament has enacted or by laws parliament has authorized particularly with respect to statutory rules and orders. So that's it on the one one side. It's also important to bear in mind that when we're discussing a legal system, we are discussing issues of private law, but also what you call public law. And public law will govern largely things like the constitutional law, administrative law. And of course, even that um has evolved over time, largely by judicial decisions in the United Kingdom because of course the UK does not have a written constitution like us. Um we have a formal written constitution. So we search for our constitutional provisions in our constitutions and of course the judicial decisions on those constitutional provisions. The civil law is different. Um the civil law has its origins in continental Europe. Um it is largely a phenomenon of of of Europe and Eastern countries. Essentially um in the case of these jurisdictions the civil law is written. It is actually to be found in what you call codes or prior to codes, customs over time until of course Napoleon Napoleon sorry decided to um decided that he needed to write down the laws of of of France, reduce it of course to written law and hence of course you had to code Napoleon. So that in a sense what we have here is a body of law um that ex exists as written law. So you can find the law. You don't have to to search through um um judicial minds or judicial decisions for the law. The law is available to you. It is accessible law. It's for that reason um I guess I describe the civil law as populist law because it is accessible to you. There's no mystery to it. But that doesn't mean that sometimes you don't have mystery by virtue of how the courts interpret the various provisions. So these two bodies of law evolve in what you call legal traditions. So we often speak of the common law tradition that is a body of law inherited largely from the UK that is based on judgment made law and then of course we talk of the civil law decision which of course um is to be found largely in codes be it a code of private law and by a code of private law I mean for example a code that governs property that governs contracts that governs um what we call um tor law that talks also about family law etc. That entire body of law but it is written and of course it is um acceptable um accessible sorry and so we describe that um body of law as a civil law tradition. Now if you were to ask me which body of law um is most um utilized by states by countries it clearly would be the civil law because apart from western Europe that has inherited um the civil law um we also have to bear in mind that um the the colonial countries exported their laws to the territories. So for example, Latin America is a um civilian jurisdiction. It is a civil law um jurisdiction. But you have to bear in mind that all laws have an origin in history. So um when you are talking of the civil law um in Western Europe, you're really talking about a body of law that is very ancient because it goes way back to the Roman Empire Justinian >> way back to just the emperor Justinian. >> Um because of this passion to ensure that law is written. Um that of course permeated over the years and equally I mean when you talk of judge made law in the UK talking 12th 11th century. So they are both ancient but the civil law tradition has a much um longer history and um its origin is far deeper than that of the um judgment made law of the United Kingdom. >> Yes. Thank you. So we're going to go within the realm of comparative law. >> Sure. So within the realm of comparative law, it is noted that one may not easily place a mixed legal system within any taxonomy and you mentioned that within your works identification and classification of mixed systems. >> In light of the issues related to classification to what degree can we confidently say our legal system is either common law or civil law legal system? >> Okay, you have used a term in your question which I think um has to be defined. Now the word mixed has no mystery. The ordinary person understand when something is mixed. >> Um mixture of things could be of two colors. It could be food that you mix. Whatever it is, it's a mixture. >> Yes. >> And when we I use the word a mixed legal system, what we basically mean is that we have a legal system that combines traditions of different legal families. And in this instant in the case of St. Lucia, our legal system is mixed because we have codified private law coming out of the code Napoleon. That is to say um our law of um obligations or family law, law of of of of contracts or um property law, etc. Um that's codified that that is written. You have to search for the law in the civil code. Never mind that that law was introduced all the way back in 17 sorry in 1879 in our case and therefore it's very dated but um the civil law tradition of course is is different is largely judgment law and we inherited our civil law initially um from the French and let me explain that very quickly when the French first colonized St. Lucia our law was based on what you call a katum debaui which really translated means the customs of Paris that is what the laws had evolved to in in France when the code Napoleon came about it changed everything because then you had you had written law so subsequently um St. Lucia inherited the the French tradition of law. But there's a particular twist in our history that a lot of people don't know and don't understand. Um and it it is this when the British conquered St. Lucia and when St. Lucia was seeded to the British in 1814, the British settlers had a lot of problems in understanding the inherited body of law because it was largely French-based and practiced among the French settlers here. So the British had a problem that they were administering a country but yet somehow they feel they didn't control the legal system nor the language of the legal system because a lot of it was in French. Fortunately for the British, fortunately for the British, they um recruited a gentleman by the name of James Armstrong from Lower Canada in Quebec. in Canada and I want to repeat that and he came to St. Lucia as chief justice and he immediately recognized the problem because British settlers did not know where to search for the law. They did not know what the law is and you need certainty in the law. People need to know how disputes are going to be resolved. So, James Armstrong then recommended to the administrator here and then on to the colonial office that he reproduce the civil code of lower Canada in in um Canada. As you know, it was a French province and that resolved a major problem for the British in the sense that they now had a civil code in English, not in French. So they could now follow and understand the body of law because it was accessible in English. Now it's important to bear in mind what the duality meant. So um St.A then had a civil code was married into the civilian tradition. Um on the other hand our constitutional and administrative law was British because um they govern the country. So, and this is typical in um colonial countries because the British under no circumstances would have allowed our administrative and constitutional law to be civilian or in the French tradition because then they would not have control over the over the territory. >> He speaks to a larger body of sovereign >> precisely. It goes directly to the issue of sovereignty. So we then have this mixture of um our private law being inherited from Canada and then of course our public law being inherited from from the British in time of course um those laws would have been supplemented by enacted law and that is to say law enacted by the legislative bodies in in in in St. Lucia. So in comparative law therefore when we say that a legal system is mixed what we mean is that the legal system has a duality a functional duality of traditions within it. And in our case we are um partly from the civilian tradition from the Romano Germanic tradition going way back the French tradition and then of course on the other hand um part of law is English um the English common law. So the two of them then exist side by side. Inevitably however they're not going to have a a happy coexistence. there going to be problems in applying that body of law. So that explains this context of um mixed legal systems and why mixed legal systems have been an interesting oddity in the taxonomy of legal systems or in in what we now know as comparative law. So St. Lucia um for those who are interested it's very fascinating. Um the problem however is this that we St. olutions don't know what we have and um we don't know our history and law in any event is boring to most people. They don't want to explore the body of law. They want don't even want to think um of the possibility that the inherited body of law is part of their cultural inheritance. I mean they they don't they're not into that kind of interpretation of our body of law at all. And that is why it is so very important because it goes with our very identity as a people. >> Okay. So on the topic of transition because this brings us to our second part the historical elements of the civil code. >> You mentioned in your works the reception of the common law systems by the civil law systems in the commonwealth Caribbean >> right >> that there was an intentional impetus from the part of the United Kingdom to shift the jurist prudence of the island from that of the civil law to the common law. It's really in that period of transition that they really put the instruments necessary to change it. you know why was this the case and what were the efforts in achieving such you briefly touched on it but to go in a bit more >> well the first thing is this you have to bear in mind [clears throat] that the colonizer needs to feel that they're in control of the legal system yes that they're not taken by surprise with the legal system that there's certainty um in the legal system and I made a point to you that in that context constitutional administrative ative law is key because that is the body of law essentially which controls the colonies. So what in fact um occurred therefore is that the the English felt that they needed to understand um the law but also most importantly to control the management of the legal system and you really could not continue to have French professionals um to manage a legal system because if the legal system is going to be managed in accordance with the French tradition s are it means that their citizens the newly arrived citizens would have to learn the legal system which would be problematic for them. So that we we need to bear in mind therefore that the implantation of a legal system is a c conscious act by the colonizer because it is important that they control the legal processes the legal system the d the direction and never forget that a colonizer also wants a legal system in its um own image both culturally and politically and constitutionally as well. So that is always the impetus to move in that direction. What saved St. Lucia basically I think um well basically two things I think first the fact that you had an English translation of the French civil code from lower Canada which was also a country under the jurisdiction of the United Kingdom. They were familiar with it. So that made it easier for them. The second thing is let's not forget that the British in 1814 when the island was seeded inherited a a significant body of French settlers. So that even while the country was being acculturated, even while the country was moving in the direction of the English colonizer, they still had to deal with a large number of French settlers who remained in the island and continue of course the production of of cane um in the various districts on the island. >> It's also worth noting that the French at that time were very arrogant people. They didn't they they were very resistant to the change by their own very nature. I don't know about this issue. I don't know about the issue of arrogance. Um I don't I don't know which nation is not arrogant. I mean >> they have the reputation. >> It's well it's hard for me but they have that reputation but it is hard for me to identify any country that essentially um um follow humility as a key cardinal principle of their existence. I think what has happened is that there's always rivalry between colonial powers >> and it's it's very hard for a country to live down military defeat and when Napoleon was defeated I mean clearly the French had a very difficult time adjusting to this new reality this new hedgeimonyy by the colonial power next door meaning the United Kingdom meaning England um and your what you call Arab Arrogance then becomes resistance cuz essentially arrogance is a way of expressing resistance, you know, um to your colonizer. It doesn't necessarily mean that you are essentially an arrogant um civilization or you're an arrogant breed of individuals. I think sometimes you adopt that kind of posture because it is a way of of of of of self-defense. It is a way of of of protect a way of protection is a way of keeping keeping the enemy um at at at a distance. But you as you can see from what I'm saying I I I I do have a large degree of admiration for French culture and the inheritance that we have. >> Yes. And considering >> I confess that no [laughter] problem. Yes. >> And considering that there was already an existing rivalry centuries. >> Precisely. Precisely. So don't interpret it as arrogance necessarily. But it it was actually an inference I got from Njo Liverpool's work who really detailed on the resistance efforts of the French. >> Yeah. Yeah. But resistance is normal to the colonizer. I mean and it's a good thing. I I mean I wish St. Lucian were far more resistance um to their culturation that they have gone through. That would have strengthened our identity as a people of course. And we we still feel that unless we have we don't we unless we get the approval from um euroentric civilization and you know I mean it's not right but anyhow that's a different story that's really is a different issue. >> Okay well thank you so much we will be heading towards our break. Please stay with us as we seek to continue on this topic um more after our break. Moving around could be a challenge for persons with disabilities, but there is some [music] good news. Yes, all banks in cash have ramps for accessibility. >> True, but for years I had difficulties getting into parliament. No rooms, no ramps, no lift. >> Same for the central library. And this must change. [music] Equip the education quality improvement project [music] ensuring new schools under the project have wheelchair access and facilities for persons with disabilities. This is a message from equip the Ministry of Education and the Caribbean Development Bank. >> Yes. So we are back and we will be exploring more of the historical element of the civil code and we're touching on a particularly interesting aspect of it. So the implementation of the common law occurred amidst emancipation of slaves during the 1800s. You mentioned that implementation of jury system, the appointment of judges and the perceived equality of the civil code all contained elements of prejudice and exclusion. Now this follows from this trend of centering the Caribbean person in the telling of our stories. When we revise the civil code, the history of the civil code, we tend to see the the French lawyers, the the British judges, the French plantation owners, but the slaves who emancipated at that time. >> What were their interactions with the development of the civil code? We understand that they were excluded especially with respect to the jury system. >> Yes. Why? Yes. Just just explore this. Just before I answer that though, Julani, [clears throat] there's a very important point that goes to the heart of this issue of cultural identity and legal identity. It's very important to understand that St. Lucia was a codal country, you know. Um, and we can explore the attractions of codes. But up to let us say 1916 or thereabouts um the early part of the 1920s we just did not have a civil code you know we had a commercial code mind you it was based on English company law but it was a commercial code and commercial codes have spec specific rules of interpretation likewise um quite apart from the commercial code we introduced a criminal code around 1916 Mhm. >> which of course had its own rules of interpretation because it was a code. So we were codal people. We were um a codal basically a codal jurisdiction. But all in English for the benefit of the colonizer and the settlers. So let's be clear about that. Now let's go back to the fundamental question that you ask. When you go through this um civil code of St. Lucia um it is very clear that the civil code was really not intended to benefit the newly emancipated slaves in solution. It's very clear the civil code was really for the planttocracy for the planters and for the commercial community. So there was very little in the civil code that granted any special rights or new rights to slaves. As a matter of fact, what the civil code did was to protect the property rights of the planttocracy. And while it is true that there were some elements of the civil code that could have benefited the newly emancipated population but you have to remember Galani that the rights of people were normally attached to the rights in land and the new emancipation population didn't own land. They didn't have land. So all the rights that flowed from owning property did really did not really benefit the um the exslaves because it's only by accession of property that over time you got into these rights. Now likewise the laws governing the family were based largely on um French notions of the family as developed in in Western Europe and elsewhere. So that um the civil code protected what it understood to be marriages. I mean it it really did not seek to provide any protection to the children of persons who had um relationships built on understanding and custom over time. Um so that basically um the civil code discriminated against children who were born out of wedlock which would have meant that the vast majority of the children of former slaves would have been excluded and would not have any protection. And part of the tragedy of all of this is that up to this day we still maintain some of the discriminatory practices um that existed. So the answer to your question is that um the slaves the former slaves were really not um beneficiaries in the sense that um the codes sought to protect their their their rights. It is only over time when they began to I mean access property and they began to exercise other legal rights that they were able to benefit. So for example, in respect of the law of obligations or contractual law, then of course they would have been entitled to the very same provisions, if there was a breach of contract for some matter or the other. And we do have evidence of some conflicts occurring for example over employment relationships um which the um former slaves now emancipated laborers turn to the courts um for resolutions. So those provisions they would have made use of those provisions. Of course it is only with um decolonization and a move to independence that we began to have the opportunity um to make um adjustments and and you know as well as I do that some of the customs the practices of the exslaves um were in fact um outlawed directly. >> Yes. um by the by by the code. Um and you know what I mean? I mean what we consider to be black magic and all voodoo and all of those things were made illegal by the code because they were directed at this emerging um population of exslaves. So um it was one of exclusion and over time with the acquisition of property then then some rights um expanded but a lot of the discrimination that existed remained on the statute books because we have not engaged in any comprehensive reform of our civil code. >> And of course there's always room for improvement. Always room to >> Oh come on. Always room. It's not just room for improvement. You're using a very >> benign word, a gentle word. There's room for um dramatic adjustment. >> Yes. Yes. Dramatic changes in the code. There's room for fundamental reform in our inherited civil code. Okay. And even in the history of exclusion with respect to the civil code, we understand the introduction of the jury system was met with speculation, not on grounds of any legal um concern, but rather the Europeans did not understand the newly emancipated slaves to be of adequate education to to be part of a a >> that is why the jury system was tied to property rights. You had to have property for you to be on the jury. But I want you to go back to a point I made to you earlier on and I don't know whether you missed that point but procedural law of any country is very important. You have to be able to control your procedural law um to control the legal system. So the British while they had a civil code in English what they did initially was to anglicize the procedural law. So for example, they did away with the French concept of a criminal trial because with the French concept of a criminal trial, as you know, what in fact occurred was that um there were special quote unquote judges who actually investigated um criminal allegations and then sought to determine whether there was a basis to maintain a prosecution. So judges actually did all of that. um that wasn't the case with the British. The British approach is is very very different. Um judges don't get involved in this until you reach a point of where um a charge has been laid and it become necessary to determine the charge. So it's very important that you understand that procedural law is very important to the colonizer because it by controlling the procedural law you then control the courts and its indirect its direction. Of course, the explanation would be you need to make your settlers, your citizens understand the processes of the law. But that's not only this only reason. The reason basically is to ensure that you exercise constitutional sovereignty over the procedural aspects of the law and the court system. >> Yes. Yes. So, we're going into the meaty aspect of our civil law tradition and that is the judicial aspect. Maybe a lot of our viewers here that's what they would have really come for. >> Um, you lament in many works the judicial sin of the import of the elements of the common law where the civil code provides similar recourse. And you make that primarily in the courts and the interpretation of a civil code in a mixed legal system. And of course, this discussion has been subject to contemporary debates, especially within the realm of new cases such as the Ernest Hill case and other cases subsequent to that case. Just speak on us, speak to us more in a greater detail. >> Let's retrace our steps >> because it's vital that we retrace our historical steps to understand this phenomenon. You have to bear in mind that over time St. Lucian society became more anglicized. You had different waves of English colonizers coming into the country. And when a lot of these estates, sugar estates collapsed in the 1850s, 1860s, you had uh deluge of European settlers, particularly from the UK, um coming in buying some of these estates that had become heavily encumbered, I mean, and owning property. And bear in mind that these um commercial um minded investors um would would would drive and push for certainty in the law because they want to control it. They want to feel that the investments are safe that they want to feel that if problems arise, if disputes arise that they would understand what the likely outcome would be. So it meant therefore that there was a constant drive, constant movement to anglicizing our code which reached um its culmination in those famous amendments made um in 1957. There's a fascinating history um in those amendments because the lead commissioner was in fact our very own Sir Alan Lewis um who as you know subsequently became chief justice of the organization of Caribbean's um um OEC states and then of course governor general I mean I'm referring to Dr. born with his father now bliss and somebody of of great reputation worked with him um and that was Vincent Flossac. So Venson Floac, so Venson Fosac was perhaps the very last Jewish um who had intimate knowledge of the reasons um for amending our civil code and anglicizing our um civil code and pushing it in the direction of the English common. One of the regrets I have is that while there were exchanges between Sansen Flossac and myself about the civil law tradition um and we had our differences for sure. I re I respected his intellect. He had extraordinary intellect. >> Yes. But nevertheless um we we we had we had differences because where that is concerned I was the I was a nationalist and I was anti- frankly anti- British and anti-inheritance of the British common law. Um but I regret we didn't have um more dialogue on the on the issues although in later times you saw some of the interesting tensions and nuances coming from his judgments um a consciousness regarding those issues. Now um the other thing that you have to bear in mind um was a training of lawyers. Most of our lawyers were now trained in the United Kingdom. There were two routes. Firstly, a few went to universities in the United Kingdom and then of course did the bar exam. either to become solicitors or to become barristers. But there was also a local route where lawyers would be um where persons interested in becoming lawyers would be apprentice to one of the law firms. They would work with um these law firms over time, learn the law, practice well not practice the law but by virtue of working with these firms get a some idea of what was involved in the practice of law and then they would um do the bar examinations and eventually they would become qualified. There are a lot of lawyers who went through that route. So what you really had was not a legal profession that was trained in in civil law. They were trained yes in in St. Lucian law in the practice of St. Lucian law, trained in English procedural law. um introduced to the English um common law um English judicial decisions, learned the principles of judicial precedency in United Kingdom, became angryized by language and um education and they themselves now became the agents of transplantation of extending the influence of the common law um in in the solution. Now, of course, when you talk with a lot of them, um, they they don't display any serious consciousness to say that it is an inheritance to be protected because they they saw themselves as transmitters as agents um of of these various judicial decisions because they had become accustomed to it by their training. So quite apart from the um statutory drive to anglicize our legal system, you also had um lawyers quietly influencing the direction of us of our system. And of course um there were those of some of them there were some of them who found themselves in the chambers of the attorney general and [snorts] quietly um making the adjustments to the laws over time. So in 1957 the decision was was taken well before that because the the the reform the law authorizing the reform was passed earlier the decision was taken to anglicize the the the civil code as far as possible. Hence you then had the amendments by Sir Alan Lewis and Vincent Floac etc. um culminating in the very dramatic changes in our civil code that seemingly allowed through article 917A the importation of um English law. But there was still a lot of confusion because no one knew how far did this importation apply. How much of the English law could have been imported because side by side with this importation there continued to be in the code um civilian principles of law. So it was an issue of argument among laws as to what really applied and you found some judges reflecting this this ami ambivalence in St. Lucia's law and in some judges took the easy way out and then wherever they found it possible they imported English law decided cases on English law and use article 917 um a to justify um their reasoning um and of course to ignore what the civil code in fact um had in practice in its provisions. So um we then experienced a situation where the drive towards anglicization acquires some degree of impetus from 1957 onwards and of course in recent times that drive continued um unabated. Now it does not mean and don't misunderstand me that St. illusion lawyers trained at UWI were any different. Um you have a number of persons who continue to be trained in the United Kingdom which means that they become agents of anglicization. Um so too are those trained at UEI they to become ang agents of anglicization because it is easier for them to deal with it. Um so it is only if you have had some kind of exposure let us say to comparative law as I had that you suddenly begin to understand the nature of the civil law >> and the attractions of the civil law and then you become more protective of it and I know of one or two St. ution students who actually did comparative law and who came back um home and tend to be far more sensitive to the civil code as we have it today. >> Okay. Well, thank you. This leads us to our second break. Um we will be engaging on the same topic after the break. Thank you. >> What's in [music] the food you're eating? Do you really know all the chemicals [music] and hormones used to accelerate [singing] their growth? All the artificial flavoring sweeteners and colors too we consume and we don't spare a thought for the damage that they'll do that they do. [music] >> Think about the children. How will we save [singing and music] them? Chemicals and GMOs are not the solution. [music] Use organic and John Food reation. [singing] [music] >> Excessive agrochemical use, additives, and genetically modified foods are harmful to health and the environment. Join the good [music] food revolution. Grow, buy, and consume organic. A message [singing] from Ry St. Lucia and the Ministry of Sustainable Development with funding from the GEF small grants program UNDP. >> The good [singing and music] food. Okay, so we are back and the topic of discussion centered around the judicial interpretation of the civil law tradition. >> Now you touched briefly on articles such as 917A which allowed for the import of English law. [snorts] >> You know explain to us the devices that more the devices the civil code provides us in the import of English law into our civil code. just specify on on that area for me. >> Mhm. >> Um [clears throat] the main article that imported the English law is article 917A because then it attempted to cover a wide range of of of laws. I mean the law of trust um law of negligence etc etc. But there were other importations of English law in other provisions of of of the code particularly um laws um that govern um commercial relationships etc. So while we focused on article 917, just bear in mind that there were other provisions that allowed for the importation of English law. Why the problem and why this thing is so very very important? The language used when the provisions were enacted essentially said that the English law in these subjects would apply for the time being. That was a generic phrase that was used. The question is what did for the time being mean? Did it mean for the time being meaning at the date that the civil code was amended with all of these provisions or did it mean um at the date when there was litigation and the court had to make a decision. And so did it apply to the law as of 1957 or the law as 2026 as it had evolved from 1957. What did that mean? And that had been a source of considerable dispute um between and among lawyers and to some extent even the even even the court. So there was a a lot of uncertainty. Then there was that complicating factor of our independence. What did this mean? Since we had become an independent nation in 1979, since we are now an independent country and we were responsible for enacting our own laws, did it mean that we continue to import English law as English law then stood? So it was an important issue because your interpretation of that pro provision will direct you as to where you should find the law. Whether you would find the law in your own decisions over time or whether you're going to find the law in English decisions. Now also bear in mind that 917A was so wide that the question arose as to whether it imported only judgemade law which is the decisions of judges in the UK or whether it included both judge made law and statutes or laws enacted by the British Parliament. So that was a conundrum. So I was just illustrate to you um the implications of this. If you took the view that it included judgment law as well as as statutory law, that is to say laws enacted by the parliament of Seuchia, then it means that your laws are to be found in the laws enacted by the British Parliament for the British society because the British Parliament don't care two hoots about St. Lucia. St. Lucia is independent. English parliamentarians are not going to enact legislation and have at the back of their minds that the legislation they're enacting is going to apply to a former colony and has implications for a former colony. They have no interest in that. But for us lawyers in St. Lucia, it became an important issue. So this is why the interpretation of article 917A was so important and is so important um to this country and I'm very sorry that up to this time that I'm speaking to you that the government of St. Lucia have not introduced legislation to reform article 9 170. I mean, I was hoping it would have been done during my tenure in parliament so that I could have had my say because um you'll appreciate that a lot of my work um my PhD [clears throat] for example was based on the civil law tradition of St. Lucia and I would have had a lot to say about article 970 some of which I said in that in in that thesis. Now the issue was resolved in this um Ernest and Alan Chassnik case and the privy council to everyone's surprise and utter astonishment and it remains one of the most bewildering judgments ever delivered by the privy council and for me if there is one judgment that should explain why the privy council should never have been our final court is that judgment because What the privy council said was this that by virtue of pre-colonial laws enacted um in St. Lucia um parliament willingly allowed for English laws our parliament willingly allowed for English laws to be applied to St. Lucia after independence. So that when we are searching for the law in Zillusia, we must go to the English parliament not just to the judges but to the English parliament to see what law they have enacted and determine to what extent it applies to St. Lucia. Now I mean it this has to be bizarre because it is really saying to you that the law what we understand the law to be lies in the breast of um English parliamentarians lies um in the breast of west minister as you put it. Um so once the privy council said that article 917 [clears throat] it was not restrictively applied as a some persons in a court of appeal originally felt and there there were judgments to that effect only to the common law. It did not apply to statute law. That decision changed all of that and said no no no it applies to English statute law. So you have this I call bizarre anomaly that we are an independent country. But if you want to know what our law is on some subject, if you want to know what the law of defamation is, we just have to rely not just we must rely not just on the provisions in our civil code but we also have to look at the law of defamation in the United Kingdom. I mean you can then understand that what we have done as a country is to abdicate our legal sovereignty and there are still people in this country who's talking about retention of um British constitutional law and practice in this country and we talking about we still talking about the imperial retentions in this country and this kind of thing is is that this kind of um reasoning exists so um this decision was in fact contrary to other decisions in in in other countries. So the pre council surprised um everybody by that decision and um you will know by now that that decision has attracted severe criticism from um even other jud judges and other lawyers and we can only correct it and to the credit if there's any credit to the British privile council said that um that provision is not um constitutionally protected in the sense that you cannot amend it. Um they said in the judgment that it is for the parliament of St. Lucia to amend the inherited laws um and it is free to do so since of course um it has been um empowered by the independence constitutions to do so. But that that of course does not um eliminated the judgment. And I I can give you some indication of how serious this is. Let us say for example you have a a a a situation let us say for example a fatal accident and a fatal accident involve a British national or British nationals I mean who decide for example that the estate is going to sue um whoever is responsible for the fatal accident. Now what the judgment is saying um Hel and Chass the law governing fatal accidents is not solely to be determined by the judges by judicial decisions but it is to be determined by any updated laws governing fatal accidents in the UK. And if you're talking about what the quantum of damages, you can't rely solely on the determination by our own judges on what damages should be. You have to look to see what kind of damages that the English Parliament has also legislated in respect of fatal accidents. >> So it's a breach of judicial sovereignty. >> Of course it is. It is. what we are what we have done is to legislate our um judicial sovereignty um away we have abdicated our judicial sovereignty and I already don't know what we are waiting for and why we don't amend article 9178 I mean it's very unfortunate >> so speaking to the provisions within the code which allow for the import of the common and statutory law we see that certain provisions such as 917A the courts have accepted them. Well, all provisions the courts have accepted them to have ambulatory effect because >> the term is ambulatory. Yes. >> Yes. It's because for the time being. Now, here's where it gets special. Articles 145 to 168A and 1137. They do not have these these these timebound languages. >> Uh you descend. The courts have given of course the same ambulatory effect to these provisions. >> Yes. You desent citing the cannon of construction espressio unlios exclusio alter you descent. So so speak to us more of your disagreement with the courts allowing for these provisions to also have ambulatory effects. This was cited in the courts and the interpretation of a civil code in a mixed legal system. Um first of all I think my position is largely influence on constitutional grounds. Um because I believe the act of independence is really a fundamental act that when a country became independent um it reclaimed its its sovereignty, its right to determine its legal future. And once you conceded that these various provisions had ambulatory effect I mean in a sense that we have already defined it then it means that you have to search into another legal legal system into another country's parliament to know what your law is. Now don't get me wrong. We will always engage in a search for precedents to determine how other countries have interpreted their laws, provided that of course similar principles or provisions um exist in those countries. So, for example, because our civil code was adapted from um Quebec's civil code for the reasons that we discussed earlier on, a major source of interpretation for our civil code is in fact from the decisions of the Quebec courts in Canada. And we nourish to use the word our laws by making reference. Now part of the problem that we have is access to sources. So unless you update yourself about judicial decisions in Quebec, you're not going to know what Quebec courts are deciding. Um and that is why in a sense our lawyers ought essential to essentially to be comparative lawyers because our sources of law are diverse. But the vast majority of lawyers will tell you they have no time to be comparative. Leave that for people like Kenny Anthony who have um time to explore these things on a scholarly basis. They're not interested in that because what they interested in they have a problem before them and they want an urgent solution to that problem. So they're not interested in those esoteric issues as being a good comparison and seeing what the equivalent provision is. Now interestingly another major source for our legal tradition is in fact Louisiana in the United States because the Louisiana as you know is a French territory. um they have a a a civilist tradition also and um they also have a body of of written law heavily influenced by the code Napoleon. So um there was that alterative source of law that we could turn to from time to time but the problem was to find legal writings based on those traditions and of course um based of course on those judicial decisions. So to come back to the heart of your your question for me um by if you conceded ambulatory definition and ambulatory meaning then you are in fact um undermining attacking your own sovereignty abdicating your sovereign right to make decisions about disputes arising in your own legal system. >> Yes. Thank you very much. We will be heading for our third break. Please be on standby as we seek to explore the judicial interpretation of the civil law tradition. >> After hurricane, sustaining life and health is most important. We should take heed. Do not drink from any stagnant ponds and pools or directly from drums and outside storage containers. If however no other choice is available and you must drink this water, use eight drops of bleach in each gallon of clear water or boil your drinking water for about 10 minutes. Use food that require little to no cooking or refrigeration such as salted biscuits and canned foods. Use preservation methods for keeping refrigerated foods safe to eat by salting, curing, and drying. Discard all perishable foods that have been in the refrigerator for more than 2 hours. And remember, once in doubt, throw out. This is the hurricane season, and we should be prepared. A message brought to you by the Ministry of Agriculture, Fisheries, Food Security, and Sustainable Development. >> Welcome back to viewing our discussions on the civil code. Right now we aim to touch on the civil code and identity. We're back here with Dr. Kenny Anthony. And our first question leads us to this. Do laws and legal systems represent the ontology of a people it governs? What role does the civil code play in identity and more specifically the Caribbean identity? >> That's a very loaded question. Um Jalani first of all um we can hardly apply the word andology to the inherited body of law um institution because this was imported. I mean you either had the importation of English law the importation of the common law tradition um because of the English coloniz or you had the importation of the civil law I mean through let us say French or Iberian um colonization. So basically um our body of law did not evolve naturally. It was all imported law. Um the question however is whether overall that inheritance um um conduc identity, our culture and our personality. Um it it is it is it is an issue that is controversial but if you look at it from the point of view that our mixed heritage reflects both the um inherited traditions English law common law and we have chosen to live by those traditions over time to that extent therefore that inheritance becomes part of our our tradition that's The first thing, the second thing is because um it's a body of law, our institutions and social behavior have been shaped by that body of law. Um so that our social relationships for example have been shaped by the social laws that we inherited. For example, the family law um of St. Lucia is largely based on the civil code. Mind you, it is very backward because it was inherited since 1879. However, when you look at the laws that were enacted then and have survived over the years, you will realize that those laws are very Catholic. that what in fact happened was that a lot of the provisions that governed family law in St. Lucia came from principles well known to the Catholic Church. Hence, for example, what you do, you um do not give any recognition to illegitimate children. Um you strip them of rights because they're illegitimate because you're pushing the idea of of marriage as what the society should should embrace. So um to that extent therefore our history who we are what we are has been shaped by this by this body of law. Next question however is a more interesting one. How do we then take this body of law, manipulate it in um to achieve um our independence to complete the process of identification to allow us to claim ownership of the body of law that we have? What do we need to do? And we have now entered this phase. So the question is whether we going to retreat and decide to continue to allow the current situation um to exist whereby gradually over time English law which is coming from a civilization whose future whose legal future is doubtful in that sense um as against a civilization that has far greater worldwide recognition in the civil law. So which of the great traditions are you going to embrace? the dying common law or um the uh more dynamic civil law. But I believe I said to you there's another reason why I am wedded to the civil law tradition. It is populist law. It is accessible law. It is written law. It is not law that is in the breasts of judges. You don't have to go to a breast of a judge to find out what the law is or what the judge thinks the law is or to go through um looking for precedence to determine what the law is. The civil law is populist law in the sense that is accessible to people because you have a written body of law and it more closely expresses the sovereign will of the parliament of the country because it is statutory law that you are recognizing the right and the power of parliament to make laws and not leaving it exclusively to the judges. That is why I call it um that is why I call it uh populist law. So what I'm really I'm trying to um I'm trying to say to you is this that yes our legal system is part of our identity by by historical um inference it has shaped who we are the way we think the way we handle um social relationships our beliefs about ourselves and our social practices. We really can't run away from it. I mean you must have heard for example about the issues governing family land in St. Lucia which is a classic example that you know we have a very fractured system of land ownership in St. Lucia where you have multiple ownerships and where um our people believe that once a piece of land is family land that everybody has an equal right to the land because it is family land and everybody has a right to um construct a house on family land that no one person um has um um the right exclusive to the land. Now we tried to remedy some of those problems when the land registration act was introduced and Nick Liverpool who was a key person during that period um they created a device what they call a trust for sale to allow um for family lands to be disposed of but it's not a device that people use because they're still um holding on to this concept of family land because there's an equality about family land that is that is attractive even if you can't really go and take it to the bank and no bank is going to give you a loan if you have a house on on a piece of family land because um the issue of of the ownership of the land is in dispute but yet we hold on to it because we believe that it is part of our inherited right um of access to to to family land so I mean Galani there's no no question that who we are today has been shaped in large measure by our legal inheritance and um it is part of our tradition, part of our social being and um it is part of our culture. >> Yes. What are your views on the future of the common of of the civilian tradition in St. Lucia? >> The civilian tradition is under attack. is under constant pressure um by judges, >> by lawyers and um because our lawyers are not trained to see it as their part of that as part of the historical responsibility. They have to protect the inherited body of civil law that we have or the mixed legal heritage. They they don't see our mixed legal heritage as part of our culture. What I can say to you is that they take some pride sometimes in the civil code and remind other um lawyers from other jurisdictions that they have a body of law called a civil code. But of course that don't mean that they um defend it or that it don't mean that they protect it um >> as strongly as Quebec at least. >> Yes. I mean that doesn't mean that at all. I mean it's far easier for them to turn to the English law as I have argued. But I have to share with you one of the biggest disappointments I had um when I served as as prime minister was our failure to reform our civil code. Now understand the civil code that we have today was in enacted all the way in 1879. Um the principal author was James Armstrong. As I told you, there were the modifications, there was amnetization, and we saw the impact of the reforms to the civil code in the 1950s. But the vast majority of the provisions of the civil code was enacted way back in 1879. So we have an a serious oddity. We are applying laws that were enacted all the way back in 1879 to a society that has evolved dramatically. To a society that has different aspirations, to a society where land tenure has taken on very different forms, very different configuration. to a society where legal obligations in respect of contractual rights has changed, employment rights has changed, tenency rights have changed. So we we have a very dated piece of law. Now that is the kind of argument that opponents of the civil law tradition um favor because then they point to the fact that we really have a very dated body of law um and say well how on earth can we continue to govern ourselves by this dated body of law that is why we must transform and we must move in the direction of the wholesale importation of the English common law because then that law will continue to develop um over time. Of course, once you do that, then the populism that is underpinning the civil law disappears. It becomes the the the civil law becomes a law for judges and for for lawyers, >> which is really what it is. And I indicated to you that's one of the problems that I have with it. I'm sorry. I mean, the common law becomes a law for for lawyers and and and for judges. Now when I served as prime minister I recognized a problem and given my own historical writings I felt I had a great responsibility and duty to reform the inherited civil code. I was able to persuade former prime minister cretier of Canada by explaining to him the unique relationship that we had with French Canada because we both had a civil code of common pedigree. Prime Minister Kretchen bought my argument and he agreed that it would be a perfect opportunity to allow Canadian intellectuals and drafters to assist us with reforming the civil code, especially as they had undergone a similar um reform process in Canada because the civil code in Quebec had been modernized um to meet the new realities. Ours had not been. We continue to apply a very old very old body of law centuries old. The money was provided. Can the Canadian um international development agency was given the responsibility but for some reason the um reform process did not go right. We did not handle it correctly. um it got timed in debate, in confusion, in delay and the Canadians decided that there was a withdraw the funding so that we had this tragedy that we were never able to reform the civil code and imperative continues. I am hoping Johanni that one day we will have a courageous government that we'll understand the depth of the problem and again approach um the Canadian authorities especially the authorities in Quebec to see whether we can find another mechanism to modernize our civil law tradition. So for me, I'm a retentionist. I think we need to keep the civil code so it remains its populist character. The law remains accessible, that the people are empowered, that our parliament feels that they empowered, that we do not place ourselves under total susinity of of judges, that the um parliament continues to determine what laws that we have irrespective of whether of course you could enact a civil code and go to parliament and change his provision. But you allow parliament to express his philosophy about law when you have a civil code that is comprehensive and that is detailed that govern your your your life. I mean not just your your property rights but your your family law rights etc. So in that sense I'm hoping that we can have a courageous government along the way that we would be able to complete what I started but could not complete. I'm I'm deeply saddened, very saddened by that, very disappointed. I mean, often people ask me whether I have disappointments about politics. Of course, I do have lots of disappointments about politics, but very rarely do. People ask me, well, what about the legal system? Do you have disappointments? And the answer is yes, I do. and and despite the tremendous reforms that former governments um which I had the honor to to lead um did undertake nevertheless that was one failure an agonizing failure and very disappointing and I'm so saddened that in the twilight of my years that has still not been done and the result that remains powerful and strong >> and that that that's the importance of conversations like these because the the the civil code, the civil law and our hybrid or mixed legal identity and as you would have mentioned you proclaim yourself as a retentionist that school of thought. These elements are largely nebulous and you would not find popular support for the retention of our elements. >> No, because it's all you know Jan it seems all remote. The ordinary person of um in St. Lucia I mean really >> couldn't bother about those things. They have no time about those things. Despite the fact though that um their own behavior is really um determined by what is exist in that body of law, data that that body of law may be, but they don't see the the connection. All they know are the social relations that underpin the existence. That's what they're interested in. >> Yes. Yes. Well, that leads us to the conclusion of this entire interview. It's quite fascinating to see that discussions on the civil code can embody a historical, philosophical and judicial aspect. The breadth of these conversations of course within the 1 hour and 30 minutes we couldn't have covered every single thing. It is largely a discussion that we could leave to many agents within the our legal infrastructure as well as wider society. I'd like to thank you Dr. Kenny Anthony for joining me here in gracing us with your wisdom and I wish you all the best. I do hope that we continue to have discussions like these and I do hope that we do allow for more retentionists and [laughter] a flowering you know [snorts] body of juristprudence related to our civil code I don't know his wisdom I've imparted um but I hope that we have been able to bring alive an issue that deserves some debate and some discussion in the society and for what it is worth I mean I added my thoughts to that and at the same time to make St. solutions aware of a history that they have that they are unaware of. I also think we have to make a judgment call whether we join the the great civilizations of the world or whether we remain part of the the dying civilization of the United Kingdom and and this common law tradition. I mean it is true that you have a common law in Canada in the United States but it is not a tradition that is alive that is necessarily inspiring. Um so we we we have a choice to make because I believe as I have said throughout this discussion that with we have to ask the question which body of law better expresses our sovereignty the right to make decisions um for ourselves. um which body of law um is is more um attractive more compatible to the way of life that we are seeking to um to develop and which better body of law better protects our identity. So these are the questions that we have but I enjoy the conversation with you and um I I do hope that you you have another opportunity perhaps to talk to other persons about some of the issues that we have we have raised there. It was a very enjoyable conversation. I thank you for the opportunity. >> Thank you very much Dr. Conte. [music]