Judicial Independence & Courts Situation Are Top Priorities

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By Mellica McPherson-Ganda

Relevance of the court, and the important role that the judiciary plays in maintaining the-rule-of-law tenet of a free and democratic society was underscored by the Territory’s legal profession at a special sitting to mark the 50th anniversary of the Eastern Caribbean Supreme Court on 27 February.

From Mr. Gerard Farara QC’s call for review and reform of court statutes to Mrs. Dancia Penn, QC, urging for a more active Bar Association it was obvious that the court at this time in its history stands at a threshold. The legal body’ current stance was also illuminated by Ms. Dawn Smith call for a technologically advanced court system, Mr. Jamal Smith’s stirring call for justice for all, and His Lordship, Hon. Justice Barry Leon’s strong appeal for judicial independence. The center piece of timely remarks was the clarion call of Chief Justice, Her Ladyship, Hon. Dame Janice M. Pereira, DBE, invitation for the court and practitioners to prepare for a new era.

In a fitting summary on the milestone anniversary, Queen’s Counsel Lewis S. Hunte noted that the current judiciary is built on the shoulders of great men and women who served the court over the years.

Democratic Messages

All of the featured addresses praised the journey of the court, welcomed the future, and stressed the current need for judicial independence in the OECS democratic societies.

Speaking on behalf of the Utter Bar Ms. Dawn Smith announced a need to see the court here utilise technology in areas such as case management, filing, and legal reference. The Attorney noted that in this day of technological advancement there are affordable options that can assist in making electronic integration possible.

“While we recognise, appreciate, and salute the great strides we have made over the past 50 years…We must pause now and recognise that progress is still upon us and the future that we must urgently embrace is technology,” she admonished.

Things Are Not Rosy

Jamal Smith, who also spoke on behalf of the Utter Bar, noted that things are not all rosy in the BVI jurisdiction and asserted that the judiciary has a part to play: “There are things that really do need to be addressed, and our courts are the bedrock of our democracy and if our courts are not functioning the way they should and if our courts are not being supported in the way they should — we have a failed democracy.”

In laying bare the issues Mr. Smith said: “We have come quite a long way, but there is still quite a lot of work to do. We have a court that unfortunately doesn’t have the facilities to operate the functions of a court. This is the court we are now sitting in, normally the court where criminal cases are tried, but it is not fit for purpose; however, we spend millions of dollars to suit the commercial court. No offence to the commercial court, it is valued in our society because it brings in significant money but we see…that we spend significant monies to fund the commercial court and to fund an international arbitration center when we do not fulfill the very basic obligations of our democracy for ensuring that justice can be met and that we have access to justice.”

He further observed that the criminal court is not receiving the attention it should: “This very fundamental basis of our democracy gets treated like the stepchild of our democracy. Unfortunately we are plagued with…some of the horrors that our court staff must endure on a day to day basis but let us think one step further not really the court staff, but think of the people who this court must serve, who we as lawyers are sworn to serve. It is they who are being disadvantaged when they are told that they have to come to a particular venue and on that day they have to find another spot to adjudicate their matter.”

Abysmal Court Environment

Queen’s Counsel and Former Attorney General and Deputy Premier Dancia Penn announced that the working situation at various levels of the judiciary functions in a deplorable standing, and she decried the state of the various surroundings.

“Many of us have spent countless hours working on The Halls of Justice Project. Yet, members of the public, judges and staff every day suffer through and endure inadequate, unhealthy working conditions, and less than safe working conditions and inadequate physical access to the Courts and court facilities.  These are critically important needs that must be given urgent priority,” she stated.

Mrs. Penn noted in particular the Magistrate’s Court and pointed out that the facility was not in a state that should be expected in a Territory like the BVI. “I have been there recently and it is abysmal. Simply not right in a society of our kind and with the economy of this country,” she said.

Chief Justice Declares New Era

Though it was announced that the Chief Justice’ remarks were pre-recorded it seemed to offer some hope for remedy to a number of the ailments that were described in the statements from the various legal professionals

Her Ladyship, Hon. Dame Janice M. Pereira, DBE, Chief Justice admitted that the area of technology was not what it ought to be in a modern court system and announced various technological projects that are in the pipeline.

She intuitively acknowledged the challenging issues and stated: “Despite the several challenges the court has always strongly guarded its role as the protector of the rights of the citizens of the OECS region and the preserver of the role of law.”

Hon. Pereira was also keen to highlight the need for judicial independence and the intricate role of the court in a democratic society. She also noted that the area of constitutional law has emphasised the courts role as a check on the exercise of the powers by the Executive over the years.

The Chief Justice also explained that judicial restraint is necessary in the due administration of justice and stated that educational efforts are being planned: “More can be done to ensure that our people understand who we are and what we do, so that our people are armed with more knowledge can have greater confidence in the justice system. The court is now placing more focus on bridging this information. To this end a number of educational activities are being undertaken as part of the 50th anniversary celebrations.”

Judicial Independence

“On this 50th anniversary of our court it is important to focus on the universality of the principle of the independence of the judiciary,” His Lordship, the Hon. Justice Barry Leon announced as he stated that time has come for judicial vigilance.

His Lordship stressed that the intricate role the legal arm of society plays in preserving democracy should not be overlooked, and noted that various current events are glaring indications of how much judicial independence should be guarded.”

“When I spoke to you at the special sitting of the court for the new law year last September, I spoke primarily about the importance of the rule of law in our justice system, and the right we are able to enjoy in the free and democratic society of the Virgin Islands. That despite our long and deep traditions of the rule of law and having an impartial justice there is something fragile about them. We cannot forget how fragile independent and impartial justice and the rule of law may turn out to be in a society.”

“I did not imagine then and I suspect that nobody in the courtroom then imagined the events we have seen since in leading democracies…public criticisms of judges in the United States and United Kingdom for their judicial actions. Those criticisms – and some might say verbal attacks – have shown us how the independence of the judiciary can be challenged and attacked even in leading and democratic societies.”

He explained that by necessity judicial independence requires freedom from outside influence or political intimidation both in considering cases and seeking office of judge: “Legal practitioners here both individually, and through the BVI Bar Association have the special responsibility to serve as guardians of judicial independence and to defend firmly judicial independence and judges who cannot speak publicly to defend themselves.”

“The media plays an important role in our justice system. We are safer and freer individually and collectively because of our media. There is and must be an unstated compact between the judiciary and the media. The media works with the judiciary…acting in its legitimate interest of reporting news fairly and accurately. The other side of the compact is that the media not only has an obligation to keep their criticism of judicial actions within appropriate bounds.”

No Politicising

Queen’s Counsel, Gerard StC Farara announced that during his almost 40 years at the Bar he has seen the court and its system experience many challenges that included funding, staffing and poor or inadequate facilities among others. “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.”

He further explained that the attacks are a reason why the Bar should remain impartial: “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.”

President of the BVI Bar Association, Ms. Jacqueline Daley acknowledged that there is much to be done; and also acknowledged that the Bar Association has a relevant part to play in the forward mobility of the court. She also used the opportunity to call for a united legal fraternity.

During the sitting the Attorney General, Hon. Baba Aziz also spoke.  The sitting was attended by Director of Public Prosecutions, Kim Hollis Q.C., His Excellency Governor John Duncan, and Premier Dr. the Hon. D. Orlando Smith.

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