General Notices

Address by Mr Gerard Farara, QC (50th Anniversary of the ECSC - 27.2.17)

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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

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