By Charmaine Joseph

The much discussed, controversial Section 361 of the Revised Criminal Code—“Anyone who has willfully published a statement, tale or news that he or she knows is false and that causes or is likely to cause any injury or mischief to a public interest, commits an indictable offense and is liable to imprisonment of a term not more than 2 years––has been repealed.

According to Dr Kenny Anthony, prime minister and minister for finance, since its implementation the bill has caused a considerable amount of debate and discussion.At Tuesday’s house sitting he said: “Even those who have championed the movement of Section 361 have now come to accept that it is extremely difficult, in any event, to obtain a successful prosecution under Section 361. They all accept that the requirements for obtaining a successful conviction are rather ominous.”

The PM explained why it would be difficult to get a conviction: “The prosecution has responsibility to convince the court that there is a willful publication of the statement. They must prove that the publisher of such a statement actually knows that the publication is false and it will cause injury or mischief to a public interest.”Richard Frederick, MP for Central Castries, immediately conveyed his approval of the repeal of the section.

 “I am indeed pleased that Section 361 of the criminal code is being deleted,” he said. “I am indeed pleased that the gag order is being deleted from our law books.” Nevertheless, he had a related concern.  “I do believe that more thought needs to go into the enactment process so that we do not pass legislation. And then in a couple of months go around and revoke that legislation,” said Frederick, who went on to note that the passage of legislation takes both “temporal and financial resources.”“It costs money to pass laws,” he went on, “it costs money to revoke laws. Therefore, if we thought long and hard before proposing a piece of legislation to this House we would not be engaging in exercises of such futility. The gag order is gone. Thank God for that.”

For his part, Mr Philip J Pierre, MP for Castries East, observed: “For once the opposition is pleased with something this government has done!” The House roared.Pierre went on: “It was never the government’s intention to gag anyone. The member [for Castries Central] must remember the people who closed Radio Kilibwi; the people who closed Radio Caribbean; the people who fired Alva Clarke when he expressed problems with some things happening in the country; the people who closed down Radio St Lucia.”

As to why the government decided to repeal the law, Pierre said that upon much reflection they had found it necessary to do so.“That is a mark of a government that is not arrogant,” he said. ”A mark of a government that listens, that understands that in the cut and thrust of democracy you must give and take.”

He said the government’s intention for Section 361 was not as people perceived it.“It was misinterpreted,” he explained, “so we just removed it. That’s very simple. I think the government should be applauded for taking that step, because this government understands.”

Section 361 was not the only amendment made to the criminal code. So was Section 5934 which reads:  “Anyone who is found guilty of rape, murder, treason, sexual intercourse with a minor, any offense under the firearm act or the drug prevention or misuse act is punishable on indictment by imprisonment of not less than 5 years would be convicted and sentenced to imprisonment of death in respect of any offenses and was given notice of the ability to appeal will not be granted bail.”

That particular legislation had also come up for discussion after a local lawyer, charged with rape, had applied for bail. The lawyer had contended that the law was unconstitutional. On Tuesday Dr Anthony agreed Section 5934 was in conflict with the St Lucia constitution.

 “It is therefore essential to make some important changes,” Anthony said. “First of all it is proposed that in those specific cases, any application for bail may be made but the vital difference is that the power to grant bail will be removed from the hands of the magistrate and be placed in the jurisdiction of a judge.”

Consequently the law now reads: “Only a judge may hear an application and therefore grant or refuse bail in the case of a person charged with rape, murder, treason, sexual intercourse, any offense under the firearm act or the drug prevention or misuse act.”

MP Frederick supported the amendment but quickly added that in the case of firearm offenses the matter should be further revised.“I have a slight problem with the new section referring to the Firearms Act. Let me that say that all firearm offenses in this country are tried summarily, that is the starting point,” Frederick told the House.      

 “Those offenses are not tried indictably by a judge and jury. If the sentencing remains within the hands of a magistrate, why can’t bail?” “As it now stands,” he said, “the offense will be tried by a magistrate, sentencing imposed by the magistrate. But the ability to grant bail will be taken out of the hands of the magistrate.

 “To my mind this makes no sense,” he said, “because the judge can grant bail for one hundred thousand dollars and the magistrate can turn around and fine him $500. This makes no sense to me.”Nevertheless, Frederick concluded that the intentions of the government, despite the minor glitches, were good.

Caption: PM Kenny Anthony says his government listens