ADDRESS ON THE OCCASION OF THE 50TH ANNIVERSARY OF THE EASTERN CARIBBEAN SUPREME COURT GERARD ST.C. FARARA QC
MY LORDS,
THE PURPOSE OF TODAY'S SPECIAL SITIING IS TO MARK WHAT, BY ANY STANDARD OF REVIEW,IS INDEED A MOST AUSPICIOUS OCCASION IN THE HISTORY OF OUR WONDERFUL CARIBBEAN!
IWELCOME THE OPPORTUNITY AND CONSIDER IT A PRIVILEDGE TO HAVE BEEN INVITED TO SPEAK AT TODAY'S SPECIAL SITIING.IDO SO NOT JUST AS A MEMBER OF THE INNER BAR FOR OVER 20 YEARS, BUT AS A LAWYER,NATIVE TO THESE VIRGIN ISANDS AND TO THE CARIBBEAN,WHO IS IN HIS 40TH YEAR AT THE BAR. I WELCOME THE OPPORTUNITY AS ONE WHO HAS PRACTICED AT THE VARIOUS BARS AND BEFORE THE COURTS OF THE EASTERN CARIBBEAN SUPREME COURT FOR ALL OF MY ALMOST 40 YEARS,JUST 10 YEARS SHY OF THE PERIOD THIS COURT HAS BEEN IN EXISTENCE.
WE ARE HERE TODAY TO MARK THE 50TH ANNIVERSARY OF THE EASTERN CARIBBEAN SUPREME COURT,ONE OF THE GREAT SUCCESS STORIES,IF WE CAN USE THE TERM IN RELATION TO A COURT SYSTEM, IN THE ENTIRE CARIBBEAN.THIS IS INDEED AN OCCASION FOR CELEBRATION - FOR LOOKING BACK AND LOOKING FORWARD.
THIS OCCASION BRINGS TO MIND OTHER CARRIBBEAN SUCCESSES,OF CERTAIN INSTITUTIONS WHICH NOT ONLY CAN BOOST OF MUCH LONGEVITY, BUT INSTITUTIONS WHICH HAVE PLAYED A VITAL ROLE IN THE DEVELOPMENT OF THESE CARIBBEAN ISLANDS; INSTITUTIONS SUCH AS THE UNIVERSITY OF THE WEST INDIES,THE COUNCIL OF LEGAL EDUCATION AND ITS THREE LAW SCHOOLS.
THROUGHOUT MY CAREER AS A LAWYER, I HAVE BEEN FORTUNATE AND PRIVILEDGED IN MANY WAYS. NOT JUST AS AN ADVOCATE BUT ALSO AS SOMEONE WHO HAS BEEN PRIVILEDGED TO SERVE, FROM TIME TO TIME,IN A JUDICIAL CAPACITY, BOTH AT THE HIGH COURT AND COURT OF APPEAL LEVELS.IN DOING SO,I HAVE GLEAMED SOME INSIGHT INTO THE WORKINGS OF OUR COURTS, NOT ONLY IN BVI BUT IN SOME OF THE OTHER MEMBER COUNTRIES OF THE COURT.THESE EXPERIENCES HAVE LED ME TO A GREATER APPRECIATION AND UNDERSTANDING OF THE VERY IMPORTANT ROLE AND FUNCTION OF OUR COURTS IN A DEMOCRATIC SOCIETY AS THE THIRD ARM OF GOVERNMENT, THE IMPORTANCE OF THE RULE OF LAW, ACCESS TO JUSTICE,PRESERVATION OF OUR FUNDAMENTAL RIGHTS AND FREEDOMS, AND THE GREAT IMPORTANTANCE OF ALL OF THIS TO THE ECONOMIC DEVELOPMENT AND SUSTAINABILITY OF THE 9 MEMBER COUNTRIES OF THE COURT.
IN THIS VEIN,I RECAlTl HAT SOME YEARS AGO IT WAS STRONGLY FELT IN SOME QUARTERS THAT THE BVI SHOULD BE TAKEN OUT OF THE ECSC SYSTEM,AND SET UP ITS OWN COURT SYSTEM. IT WAS FELT BY PROPONENTS OF THIS CHANGE THAT THIS STEP WOULD BE IN THE BEST INTEREST OF THE FINANCAIL SERVICES INDUSTRY AND THE ECONOMIC PROSPERITY OF THE BVI. THIS INITIATIVE WAS MOUNTED AT A TIME WHEN MUCH THOUGHT WAS BEING GIVEN TO THE SETIING UP OF A COMMERCIAL COURT IN BVI HOWEVER,THESE EFFORTS WERE STOUTLY RESISTED BY MANY OF US AT
THE BAR, AND I BELIEVE HISTORY HAS AND WILL CONTINUE TO DEMONSTRATE THAT REMAINING WITH THE ECSC WAS NOT ONLV THE RIGHT BUT THE BEST DECISION FOR THE BVI
AND LOOK AT WHERE WE HAVE TRAVERSED SINCE THEN. WE DO HAVE THE COMMERCIAL DIVISION ESTABLISHED IN BVI, DEALING PRIMARILY WITH BVI COMMERCIAL LITIGATION. AND, MOST IMPORTANTLY, WE HAVE A NATIVE OF THIS TERRITORY AS CHIEF JUSTICE OF THE COURT.
DURING MY ALMOST 40 YEARS AT THE BAR, I HAVE SEEN THIS COURT AND THIS COURT SYSTEM EXPERIENCE MANY CHALLENGES, WHETHER THEY RELATE TO FUNDING, STAFFING {JUDICIAL AND NON-JUDICIAL), POOR OR INADEQUATE FACILITIES, HEAVY CASE LOADS AND BACKLOGS, NOT TO MENTION UNWARRANTED ATTACKS ON THE INDEPENDENCE OF THE JUDICIARY COMING FROM VARIOUS QUARTERS,INCLUDING PERSONS IN HIGH PLACES.MANY OF THESE ATTACKS HAVE HAD TO BE ADDRESSED AND MET HEAD ON BY AN INDEPENDENT BAR ASSOCIATION. THIS IS WHY WE MUST ENSURE THAT OUR BAR ASSOCIATIONS DO NOT BECOME POLITICISED AND DRIVEN TO ADOPTING A DOCILE POSTURE IN THE FACT OF IMPORTANT ISSUES OF OUR TIME BECAUSE OF CONFLICTS OF INTERESTS AND POLITICAL AFFILIATION.
UNFORTUNATELY, MANY OF THESE CHALLENGES PERSIST UP TO TODAY, AND TO VARYING DEGREES THROUGHOUT THE OECS.THE LACK OF COMMITMENT TO ADDRESS CERTAIN OF THESE CHALLENGES BY THE POLITICAL DIRECTORATE THROUGHOUT THE OECS, WHO CONTROL THE PURSE STRINGS OF GOVERNMENT, REMAINS A VEXING ISSUE,ONE WHICH IS GIVEN LITTLE OR NO BUDGETARY PRIORITY OR OTHER COMMITMENT. THESE ARE SOME OF THE MATTERS WHICH HAVE AND CAN ADVERSELY AFFECT THE ADMINISTRATION OF JUSTICE IN THE OECS AND FUEL DISRESPECT FOR OUR COURTS AS THE THIRD ARM OF GOVERNMENT. AFTER Al,l THE COURTS ARE THE LAST BASTIONS FOR THE PROTECTION OF THE RULE OF LAW AND ACCESS TO JUSTICE. THEY ARE THERE TO PROTECT THE CITIZEN, INCLUDING THOSE AT THE LOWER ENDS OF THE ECONOMIC LADDER, FROM VITIMIZATION, EXCESS OF AUTHORITY BY GOVERMENTAL AND STATUTORY BODIES AND FUNCTIONARIES, TO UPHOLD FUNDAMENTAL RIGHTS AND FREEDOMS,AND PRESERVATION OF THE RULE OF LAW.THESE ARE AllESSTENTIAL TO THE MAINTAINENCE OF A VIBRANT DEMOCRACY AND TO THE ECONOMIC WELL-BEING AND SUSTAINABILITV OF AlTl HESE COUNTRIES OF THE OECS.
OVER THE YEARS, I HAVE HAD THE PRIVILEDGE OF APPEARING IN MANY CASES AND MATTERS, BEFORE TEN OF THE TWELVE CHIEF JUSTICES OF THE COURT, AND EVERY RESIDENT HIGH COURT JUDGE EXCEPT ONE, AS WELL AS MANY MEMBERS OF THE MAGISTRACY. LIKE EACH ADVOCATE, I HAVE HAD MY SHARE OF SUCCESSES AND NON-SUCCESSES. DURING MY ALMOST 40 YEARS AT THE BAR,I HAVE DEALT WITH JUDGES OF GREAT BRILLANCE AND EMINENCE,SOME OF WHOM HAVE HAD
A PROFOUND IMPACT ON MY PROFESSIONAL DEVELOPMENT AS A LAWVER. IN THIS REGARD, I RECALL WITH MUCH ADMIRATION AND DEFERENCE, CHIEF JUSTICES SIR MAURICE DAVIES, SIR NEVILLE PETERKIN, SIR LASCELLES ROBOTHAN, SIR VINCENT FLOSSAIC AND SIR DENNIS BYRON, TO NAME BUT A FEW. THESE WERE BRILLANT MEN AND JUDGES, WHO LOVED THE LAW AND WERE
' LEARNED IN THE LAW', IN THE TRUE TRADITION OF THAT EXPRESSION. IT WAS INDEED A LEARNING
EXPERIENCE EACH AND EVERY TIME YOU APPEARED BEFORE ANY OF THEM IN A MATTER.
IN THIS VEIN, I CAN VIVIDLY RECALL APPEARING BEFORE THE COURT OF APPEAL IN A CRIMINAL APPEAL,WHERE I FELT STRONGLY THAT THE JUDGE AT FIRST INSTANCE HAD TRESPASSED INTO THE
'ARENA' TO THE DETRIMENT OF MY CLIENT, THE ACCUSED. I NEVERTHELESS FOCUSED MY AIM FIRSTLY ON WHAT I THOUGHT WAS A NICE, DISCREET, AND PERHAPS SOMEWHAT NOVEL LEGAL POINT, ONE WHICH HAD OCCUPIED ME WITH MUCH RESEARCH AND PREPARATION OVER THE WEEKEND.IT DID NOT TAKE LONG INTO MY SUBMISSIONS FOR ME TO SENSE THAT THEIR LORDSHIPS DID NOT SHARE MY ENTHUSIAM FOR NOR WERE THEY SUITABLY IMPRESSED WITH THIS MY FIRST GROUND OF APPEAL APPROXIMATELY 10 MINS INTO IT, CHIEF JUSTICE FLOSSIAC LEANED FORWARD AND SAID:"MR FARARA ITAKE IT YOU HAVE OTHER GROUNDS OF APPEAL" TO WHICH IRESPONDED: "YES MY LORD". AND THE CHIEF JUSTICE SAID: "PERHAPS YOU MAY HAVE BEITER SUCCESS IF YOU WERE TO MOVE ON TO ONE OF THOSE GROUNDS." I DID SO IMMEDIATELY, AND WITH MUCH GREATER SUCCESS.
OVER THE YEARS IHAVE BEEN PRIVILEDGED TO APPEAR, BOTH AS JUNIOR AND AS LEAD COUNSEL,IN MANY AND VARIED TYPES OFCASES, SOME INVOLVING COMPLEX OR DIFFICULT AREAS AND PRINCIPLES OF LAW,BEFORE VARIOUS JUDGES OF THE COURT.THESE JUDGES COMMANDED RESPECT AND DISCOURAGED YOU FROM TAKING SILLY OR BAD POINTS. I RECALL FONDLY APPEARING BEFORE
JUSTICE CECIL HEWLETI (WHO ACTUALLY ADMITIED ME TO THE BAR ON 3R 0 OCTOBER 1977),JUSTICE
MONICA JOSEPH AND JUSTICE SYLVIA BERTRAM, AND LATER JUSTICE SUSIE D'AUVERGNE, ALL OF WHOM PRESIDED AT VARIOUS TIMES DURING THE EARLIER YEARS OF MY CAREER, IN BOTH THE CIVIL AND IN THE CRIMINAL COURT.THESE JUDGES TOOK THEIR JUDICIAL TASK SERIOUSLY AND PRESIDED OVER THEIR COURT WITH THE KIND OF DIGNITY AND COMMAND BEFITIING THE JUDICIARY. SPECIAL MENTION MUST ALSO BE MADE OF JUSTICE ALBERT MATHEW AND ALBERT REDHEAD, BOTH OF WHOM GRACED THE COURT IN THE BVI AT THE HIGH COURT AND COURT OF APPEAL LEVELS.
I ALSO RECALL FONDLY OUR THEN LEGAL LUMINARIES IN BVI: MR JOSEPH S. ARCHIBALD QC,A MAN WHO LOVED THE LAW AND THE PRACTICE OF IT;SOMEONE WITH A PHOTOGRAPHIC MEMORY, WHO LIVED AND BREATHE ADVOCACY AND THE CUT AND THRUST OF LITIGATION IN ITS MANY FACETS;ONE WHO WAS AN EXCELLENT MENTOR AND TEACHER IN THE LAW TO ALL YOUNG LAWYERS, BUT ESPECIALLY THOSE WHO WHERE FORTUNATE TO HAVE PASSED THROUGH HIS CHAMBERS.
MR MCW TOOMAN QC, A MAN WITH A BRILLANT MIND, A TRULY GIFTED ADVOCATE AND ORATOR, WHO PRACTICED WITH GREAT DIGNITY AND ALWAYS WITHIN THE RULES.
IALSO REMEMBER FONDLY COLLEAGUES LIKE EDGAR HEWLETI AND LIONEL BARKER,SO CALLED 'OLD SCHOOL LAWYER'S, WHO DISTINGUISHED THEMSEVES IN VARIOUS WAYS,BOTH AT THE BAR AND IN GENERAL PRACTICE, PERMISSIBLE WITH A SEMI-FUSED PROFESSION.
AND WHO COULD FORGET THE VENERABLE JACK SMITH HUGHES, AN OXFORD GRADUATE WITH A PARTICULAR GIFT FOR THE WRITIEN WORD,SIMPLICITY OF LANGUAGE AND CLARITY OF EXPRESSION, WHO OFTEN DID NOT SEE THE NEED NOR DID HE ALLOW HIMSELF TO BE COMPELLED,TO CITE LEGAL AUTHORITY, WHETHER APPEARING AT FIRST INSTANCE OR BEFORE THE COURT OF APPEAL, BUT RELIED ON WHAT HE CONSIDERED TO BE EITHER 'GENERAL' OR 'WELL-ESTABLISHED' LEGAL PRINCIPLES. SOMETIMES,IMAY ADD,TO THE CONSTERNATION OF THE JUDGES.
ALSO OF THAT ERA WAS MR NEVILLE WESTWOOD, WHO QUIETLY BUT FIRMLY AND RESOLUTELY BUILT A PRACTICE WHICH HAD BEEN STARTED IN THE BVI BY MR HAROLD HARNEY, A LAWYER OF ANTIGUAN DECENT, MARRIED TO A VIRGIN ISLANDER, WHO HAD MADE THE BVI HIS HOME. TOGETHER THEY LAID THE FOUNDATION OF A PRACTICE WHICH,OVER THE YEARS,HAS GROWN INTO THE INTERNATIONAL AND MULTI-JURISDICTIONAL PRACTICE NOW KNOWN AS 'HARNEYS'.
SO WHAT DOES THE FUTURE HOLD FOR OUR COURT? OBVIOUSLY WE MUST BUILD ON WHAT HAS BEEN CREATED, NURTURED AND DEVELOPED OVER THE LAST SO YEARS, A COURT THAT HAS A STERLING REPUTATION BOTH WITHIN THE REGION AND BEYOND. THE ECSC MUST RESPOND TO THE CHANGES WHICH HAVE OCCURRED AND ARE CONTINUING TO OCCUR WITHIN EACH MEMBER COUNTRY, AND INDEED IN THE WIDER WORLD.CHANGES IN THE SIZE AND DEMOGRAPHICS OF THEIR POPULATIONS, IN THE VARIOUS ECONOMIES,IN THE TYPE AND PREVALENCE OF CRIMINAL ACTIVITY, IN THE TYPE, SIZE AND COMPLEXITY OF DISPUTES THAT COME BEFORE THE COURTS, ESPECIALLY COMMERCIAL AND CROSS BORDER DISPUTES ETC.
TO SOME EXTENT THE ECSC HAS ALREADY BEGUN TO MEET THESE AND OTHER CHALLENGES, AND WITH SOME SUCCESS, SUCH AS THE CIVIL PROCEDURE RULES WHICH WERE BROUGHT IN UNDER SIR DENNIS BYRON, THE REFORMER CHIEF JUSTICE AND NOW PRESIDENT OF THE CARIBBEAN COURT OF JUSTICE (THE CCJ). IN SHORT,WE MUST CONTINUE TO BUILD A MODERN COURT SYSTEM;ONE FIT FOR
THE 215TCENTURY, ONE WHICH IS RESPONSIVE TO THE DEMANDS AND TIMELY RESOLUTION OF
DISPUTES. IN MY CONSIDERED VIEW, THIS REFORM OUGHT TO INCLUDE REVIEWING AND POSSIBLE RE-ENACTING NEW SUPREME COURT ACTS IN ALL THE MEMBER COUNTRIES. AFTER ALL THESE ENABLING STATUTES HAS BEEN IN PLACE,ALMOST WITHOUT AMENDMENT,FOR SOME SO YEARS. AS AN INTEGRAL PART OF THIS EXERCISE,THE POSSIBLE EXPANSION OF THE JURISDICTION OF THE COURT IN CERTAIN AREAS,OUGHT TO BE CONSIDERED.
ABOVE ALL, AS A SOCIETY, AS MEMBERS OF THE LEGAL PROFESSION, AND AS THE JUDICIARY, WE MUST, INDIVIDUALLY AND COLLECTIVELY, DO WHATEVER IS WITHIN OUR POWER AND PURVIEW TO UPHOLD AND TO STRENGTHEN THE RULE OF LAW AND THE INDEPENDENCE OF THE JUDICIARY. WITHOUT AN INDEPENDENT AND VIBRANT JUDICIARY, THE CONSTITUTIONAL ROLE,AND HENCE THE LONGEVITY OF THE COURT FOR ANOTHER SO YEARS, WILL COME INTO QUESTION THEREBY UNDERMINING FAITH IN OUR CONSTITUTIONS AND IN OUR DEMOCRATIC INSTITUTIONS. THIS CAN THEN BECOME A 'SLIPPERY SLOPE', WHICH ULTIMATELY WILL LEAD TO DISPAIR, DISRESPECT, LAWLESSNESS,UNBRIDLED CORRUPTION, AND EVEN ANARCHY. SO WHILE WE FITIINGLY TAKE THIS TIME TO APPRECIATE, AND EVEN TO CELEBRATE, OUR COURT SYSTEM, ITS RESILENCE AND IMPORTANCE OVER THE LAST SO YEARS, LET US AT THE SAME TIME RECOMMIT OURSELVES AND OUR EFFORTS TO ENSURING ITS ABSOLUTE PROTECTION, AND TO PROVIDING THE NECESSARY RESOURCES AND TOOLS TO ENABLE IT TO NOT JUST CONTINUE TO FUNCTION,BUT TO FURTHER EVOLVE AND TO GROW TO MEET THE NEEDS AND CHALLENGES OF AN EVER CHANGING WORLD, WHILE CONTINUING TO BE AS THE LAST BASTION OF FREEDOM.
MAY IT PLEASE YOUR LORDSHIPS!
GERARD ST.C FARARA QC