Gerrard Farara QC offered the Virgin Islands public a prism into issues of constitutionality and law at a recent lecture he gave at the Hamilton Lavity Stoutt Community College, British Virgin Islands. This rendition of governance and justice was described in the Island Sun Newspaper of January 28, 2012, in an article by Mellica McPherson, ‘’ Queens Counsel Farara delivers Frederick Pickering Memorial Lecture.’’ And the Island Sun writer described how the Constitutional Expert asserted that the virtues of ‘’equity and inclusiveness were integral to a society’s well being.’’
The Queens Counsel, according to McPherson, further exhorted that all members of community must ‘’ feel they have a legitimate stake in it, and not feel excluded from the mainstream of society.’’ Good governance, according to our Learned Friend, required that ‘’ all groups within society have opportunities and avenues for improvement’’ and the maintenance of ‘’their well being and that of their families,’’
Now, whether this is so or not in a modern Virgin Islands, set into a much larger West Indies is a matter of opinion. However, simple observation will determine that much of the Caribbean is a hodgepodge of small countries, mainly Judaeo Christian, and democratic. Small jurisdictions that are further made up of tiny and eclectic communities, or as a wonderful guy put it to this West Indian just the other day, the West Indies are ‘’a callaloo, or a plate of fungi; a mixed pot, and a spicy plate of pilau.’’
This is a dynamic of ‘mix and grind,’ and a cross current of historic and cultural influences originating in Europe, Asia, Africa, and the Americas, that partly defines the various institutions that govern the region, from those of a legal, governmental, and constitutional, to those of a social, cultural, and commercial.
Countries such as these Antilles; are such tiny places that one feels the ripples of nearly every type of activity or dynamic, whatever that may be. And the same is true for West Indian justice and jurisprudence. The effects of judicial decisions, courtroom drama, and further legal type activity, even police action, have a great effect on communities that are microscopic in scope and nature, at least when compared with places with larger populations. Small societies are further uniquely vulnerable to the `criminal element.
And this tiny and insular nature of West Indian community is manifested in relationships within the West Indian ‘legal fraternity.’ Consequently, lawyers must be extremely careful not to allow themselves be unduly influenced by this relational dynamic: a synthesis of like minds, even the cross fertilization of ideas and relationships that appears to be a unique feature of the Caribbean region’s legal system and process.
This tightly knit feature in the relations between lawyers is a charming anachronism that may turn into something more ominous and even ugly. A feature of ‘cozy relationships’ in a legal world that becomes questionable and objectionable to the wider community, looking in from outside the ‘Parthenon of the Learned;’ especially where these relationships lead to decisions that smack of a lack of objectivity, and that even become negatively nuanced, affecting the delivery of effective, equitable, and equable justice.
Relationships in a judicial and legal hierarchy that may smack of undue influence by those privileged persons, who have the ear of the powerful in the system, and relations in a tight complex that go on to subvert the very effectiveness and fairness of the very law that the ‘higher ups’ in the process are deemed to be the guardians and stewards of.
Now, the Caribbean is not the only region that may be influenced by this type of legal dynamic, resulting from closely knit relational and even familial type liaisons. But it remains an excellent model of how best to manage these very subtle, but complex relationships, and for the betterment of community. Yes, in a capitalist type democracy, those with knowledge, wealth and power will always have the advantage of better legal representation and greater influence upon the law, that determines that these individuals will frequently get a ‘better deal’ than the boy or girl born in a poor family, and weighed down by lack of privilege, and the lack of resources required to ‘pay their way through’ a process that is very expensive indeed.
However, those who steward the legal apparatus must understand that ultimately, law emanates from the people: the man on the street. This has been an age old narrative of history that saw the transference of raw power from the tyranny of absolute monarchy, through feudalism and fascism, to modern colonialism, nationalism and democracy. It was the masses that fought for these precious freedoms, albeit, they were led by the intellectual and the articulate; many of the selfsame good and great who paradoxically fought against their own interests, that the oppressed majority, the slave, serf and peasant of yesteryear, could live better lives, lives free from poverty, oppression, and tyranny.
The Caribbean and Latin America are among the most unequal societies on earth. This is an anomaly of a history steeped in slavery and racial politics. There exists an elitism and social stratification that is very subtle and nuanced, but very present. The legal fraternity is a reflection of this stratification, a very British transplant from the Inns of Court lying serenely on London’s Embankment, a rendition of elitism and class, sitting on the top layers of West Indian society: a story of the lofty, with its love for eloquence, legal tradition, and the archaic.
Consequently, the lawyer is well placed to play a role as social warrior in bridging some of that gap, especially in aiding the poor and vulnerable to obtain some benefit from a more equitable social justice. And a more equal social justice is a virtue that the law could easily champion. This is a nobility of law that will only ever be realized when those who are stewards over the legal process see the evil in a law that is easily a double edged sword: attempting to defend the rights of the poor and deprived on one hand, but paradoxically usurping those selfsame rights when protecting the privileges of the wealthy and powerful. The former should be the norm, not the latter.
This narrative is therefore an appeal to the legal fraternity not to forget that they must answer to that higher call that resides in the hearts of all men and women everywhere, who live under the majesty of the law: the call of the human conscience. And despite the esoteric and archaic, and even arcane nature of the legal world, law is ultimately the possession of the masses: it is not the plaything of the privileged few.
One of the more powerful features of the Rule of Law is its ability to protect the most vulnerable in society. The poor and weak, and children, are usually those most unable to defend themselves. The case of the murdered Stephen Lawrence that haunted British community for years is a vivid example. In a racist Britain of the early 1990s, this became a test case as to whether a legal system that was overwhelming white and upper class in character was able to deliver justice to a member of the minority West Indian population. It failed to do so at that time, albeit it was greatly aided by police incompetence. The protection of infants, children, and the young, is a hallmark of an effective legal system.
In the Stephen Lawrence case, the justice process allowed racist and bigoted murderers to walk free. It was not until just the other day that justice was finally done, and seen to be done, after years of heartache for young Lawrence’s family.
Lawyers are frequently fond of proselytizing on the virtues of integrity in the justice process. However, integrity is not simply a rhetorical virtue, above all, it is a virtue steeped in action. Like justice, integrity must be tangible and a veritable part of the morality of law. Integrity of law must be seen and felt by the general public.
Consequently, when the masses begin to perceive, probably incorrectly, that the unequal nature of the law is an overwhelming factor in its workings and composition; then the law becomes an unholy paradox: a sad irony that redefines that selfsame institution, that is supposedly the defender of all that is good in society, in a wayward and unfortunate manner.
The ‘common man’ comes to view the law instead, as a tool of the rich and powerful, a legal machine whose sole purpose is to usurp the rights of the majority, for the interests, and in the defense of those, who reside at the top of the social pyramid.
And when that perception becomes the norm, then the world is a very dangerous place indeed! Or as the great French Thinker Montesquieu put it ‘’ there is no greater tyranny than that which is perpetrated under the shield of law, and in the name of justice.’’