Kangaroos and Bananas?: A Question of the Rule of Law & Due Process in Saint Lucia

By Polaris Citizenship & Investment Consultancy Services Ltd.

The motives for obtaining citizenship and the perceived benefits of Citizenship by Investment (“CBI”) vary. However, the desire to obtain and retain citizenship of a respected, legitimate democracy governed by the “rule of law” is shared by all potential economic citizens.

The rule of law principle, which dates back to 16th century Britain, prescribes that all citizens must bear equal subordination to the law of the land.

Rule of Law in the Caribbean Region

The rule of law principle is the cornerstone of Saint Lucia’s legislation. The preamble to the Constitution of Saint Lucia reads, “The people of Saint Lucia believe that all persons have been endowed equally by God with inalienable rights and dignity… and maintain that these freedoms can only be safeguarded by the rule of law.” Similar pronouncements are made in the constitutions of Grenada, Antigua & Barbuda and the remaining CBI offering Caribbean states.

These rights and the legal protection of same have also been recognized by the ratification of the CARICOM (Caribbean Community) Charter of Civil Society (“Charter”) which dictates that the Caribbean states shall respect the fundamental human rights and freedoms of the individual, without discrimination, but subject to respect for the rights and freedoms of others and for the public interest. Additionally, the Charter dictates that no person shall be deprived of their rights except by due process of law.

However, the protections envisaged by the Constitution and the Charter are of little value without proper implementation and enforcement; as pronounced by Gandhi, all good thoughts and ideas mean nothing without action.

Interestingly, without evidence, the Caribbean region was recently labelled as comprising of “Banana Republics” with “Kangaroo Courts”, raising an important question for every potential Citizenship by Investment applicant: Is it really?

Interpretation by the Courts

The CBI offering Eastern Caribbean states are all under the jurisdiction of the Eastern Caribbean Supreme Court (“ECSC”). This court, established in 1967, is responsible for the interpretation and application of the laws of six member states including Saint Lucia, Antigua & Barbuda, and Grenada, and three British Overseas Territories including the British Virgin Islands. To ensure procedural fairness, final appeal from the decisions of the ECSC lie to the Caribbean Court of Justice or the Privy Council in the United Kingdom.

The Caribbean Court of Justice has over time given a wide interpretation to a citizen’s right to protection of the law stating: 

“the right to protection of the law is a multi-dimensional, broad and pervasive constitutional precept grounded in fundamental notions of justice and the rule of law. The right to protection of the law prohibits acts by the Government which arbitrarily or unfairly deprive individuals of their basic constitutional rights

to life, liberty or property. It encompasses the right of every citizen of access to the courts and other judicial bodies established by law to prosecute and demand effective relief to remedy any breaches of their constitutional rights. However the concept goes beyond such questions of access and includes the right of the citizen to be afforded, adequate safeguards against irrationality, unreasonableness, fundamental unfairness or arbitrary exercise of power.”

Similar pronouncements have been made by the Privy Council, which is Saint Lucia’s final appellate court.

The principle of constitutionality mandates that all laws enacted and all actions of the state must conform to the Constitution of Saint Lucia. This means that any law, procedure or act which violates the Constitution is unconstitutional and void. Thus, fundamental constitutional principles of protection of the law, fairness and due process must, and indeed have, been incorporated into the Citizenship by Investment Act of Saint Lucia (“CBI Act”), and the Citizenship of Saint Lucia Act (“Citizenship Act”) which was enacted in 1979.

Under the CBI Act, a registered citizen by investment may have his/her citizenship revoked in very limited statutorily prescribed circumstances; for example, if it is found that citizenship was obtained by fraud or deceit. Further, the legislation provides that the State must specify in writing the grounds for revocation of citizenship. Persons who have had their citizenship revoked may appeal to the High Court of the ECSC. Similarly, under the Citizenship Act, a citizen may only have citizenship revoked in limited circumstances by statute; for example, if the citizen has been found to have committed treason against Saint Lucia. Similarly to the CBI Act, the Citizenship Act provides citizens with the right to be heard by an independent body.

These statutes therefore provide limited and clearly defined circumstances where citizenship may be revoked and, in all cases, are to be interpreted in line with the Constitution. Further, the right of appeal affords the affected party protection of the law and ensures that the constitutional safeguards put in place for citizens are considered by an impartial court.

Application of the Rule of Law

As one should expect, the courts have upheld the rule of law and rights of citizens. In the sole known concluded case involving citizenship by investment, the ECSC, sitting in Antigua and Barbuda, concluded that the Antigua Chief of Immigration was in breach of Section 9 of the Constitution of Antigua and Barbuda (which provides the right to protection from deprivation of property) when he, without due process, confiscated the passports of two persons who had obtained Antiguan citizenship through the country’s CBI scheme. The ECSC ordered that the passports of the two citizens be returned. Section 6 of the Constitution of Saint Lucia provides similar protection and if citizens by investment of Saint Lucia were before the court under similar factual circumstances, it is our opinion that the ECSC would undoubtedly apply this case to the same effect.

Similarly, the ECSC sitting in Grenada concluded that the fundamental right to equal protection of the law was infringed when a foreign national, who had obtained citizenship through marriage, had his citizenship revoked without being provided with the opportunity to be heard. Significantly, the ECSC declared that the order depriving the appellant of his citizenship was null and void.

Whilst not yet decided, we all await with anticipation the ECSC’s decision in the ongoing Mehul Choksi matter. What should be commended, however, is the State’s willingness to allow due process to run its course without arbitrarily infringing on the Constitution and other legal rights of Mr. Choksi, its citizen. It is also clear from media coverage coming out of the State that the intention is not to provide safe harbor to a fugitive but instead to ensure that any revocation of citizenship and deportation is done in accordance with the law.

Investor Outlook

Prospective investors in Saint Lucia’s CBI are guaranteed Saint Lucia’s continued observance of the rule of law and its Court’s commitment to due process. Whilst this does not preclude revocation of citizenship, deportation, or seizure of one’s passports in appropriate circumstances, it ensures that these occurrences are limited to that which is allowed by the law, are not subjective or arbitrary, and are conducted in a manner which is fair, considers the rights of all parties involved and is monitored by an impartial judiciary.

Therefore, we finally answer the question: are Saint Lucia and the remaining CBI offering Caribbean islands Banana Republics with Kangaroo Courts? We don’t think not, we know not.

Co Authors:

Geoffrey DuBoulay is the Managing Partner of the firm Floissac DuBoulay& Thomas and Managing Director of Polaris Citizenship & Investment Consultancy Services in Saint Lucia. Geoffrey possesses a Master’s Degree in Commercial and Corporate Law and has over 20 years’ experience as an attorney.

Keith Isaac is an attorney-at-law at the firm Floissac DuBoulay & Thomas and General Manager of Polaris Citizenship & Investment Consultancy Services in Saint Lucia. Keith holds a Master’s Degree in Law and Certification in Investment Migration. He is a five-time former St. Lucia National Youth Parliamentarian and a former St. Lucia Junior Minister for Tourism.