Gender Equality and Judicial Independence in the Caribbean
This content explores the role of judges in promoting gender equality and justice in the Caribbean region, discussing preliminary points, judicial independence, and the rule of law. It emphasizes the importance of judges maintaining professional competence and independence to address gender equality issues without bias or fear. The content highlights the instrumental value of judicial independence in upholding the rule of law and protecting citizens' rights against state encroachments.
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Eastern Caribbean Supreme Court Judicial Education Institute Colloquium on Gender and the Law AN ANATOMY OF JUDGING GENDER EQUALITY & GENDER JUSTICE CONCERNS IN THE CARIBBEAN TRACY ROBINSON MONA LAW, UWI
An anatomy of judging (just one angle) How do judges define gender equality issues and on what basis? How do they understand their role in respect of addressing gender equality & gender justice? When do they address gender injustice? What methods do they use? Outline Preliminary points 6 Cases & Contexts
Preliminary Points IS IT LEGITIMATE FOR JUDGES TO PROMOTE GENDER EQUALITY? WHAT ARE THE RIGHT TERMS OR NAMES TO DESCRIBE THE PROJECT?
PRELIMINARY POINT I: Is it legitimate for judges to promote gender equality CANON 3 A JUDGE SHOULD [A] MAINTAIN PROFESSIONAL COMPETENCE IN THE LAW, AND SHOULD NOT BE SWAYED BY PARTISAN INTERESTS, PUBLIC CLAMOR, OR FEAR OF CRITICISM.
YES: Because judicial independence has an instrumental value in the promotion of the rule of law JUDICIAL INDEPENDENCE: Judges must have freedom to do so without favour/fear THE RULE OF LAW: Judges have an overriding duty to apply the law
Judicial independence maintains and promotes confidence in the Rule of Law Judges have an overriding duty to apply the law. The core of judicial independence is the freedom of judicial officers to perform their judicial functions on the basis of the facts in front of them, in accordance with the law and without undue outside interference, threats, inducements or pressure. R v Jones (2007) 72 WIR 1, 4 [7] (SC, Bah). Chiefly through the protection of fundamental rights and freedoms, judges are meant to protect the citizen against arbitrary encroachments of the state. Byron CJ explained that Litigation between the citizen and the State has always been considered problematic. In constitutional democracies under the rule of law however, the courts have assumed jurisdiction to hear and determine all disputes of a justiciable nature. Gairy v AG (1999) 59 WIR 174, 9, per Byron CJ.
The elements of the rule of law: Gender equality is not the only demand the rule of law makes, but it is one of them Access to justice for all Must be able to get into the court door Must be able to get effective relief No one, however powerful, is above the law But also ordinary citizens in their private as well as public lives Especially state actors Overall fairness Victims of crime are entitled to fair legal proceedings in matters that concern them Equal protection of the law The law cannot rule if it does not protect All entitled to equal access to justice
PRELIMINARY POINT 2: What nomenclature to describe the project? Gender equality/justice? Both!, Gender Neutrality? Depends! Develop ing EQUAL ITY Not purely formal Not a mathemat ical formula solved by similar treatment Discrimin ation only one aspect of equality Takes into account vulnerabili ty Can mean different treatment Disaggreg ating JUSTICE The goal of the rule of law Overall fairness The law applies to everyon e Everyon e should be protecte d by the law Nuanci ng NEUT RALIT Y access to justice to for all + responsive ness to inequality and vulnerabili ty Since judges have an overriding duty to APPLY the LAW, in accordance with the CONSTITUTION, they must be guided by LEGAL CONCEPTS There are constitutional limits to how much judges can create legal concepts. They have an expansive role in reshaping restrictive interpretations of them International conventions Constitutions
The Cases and their Contexts WHEN QUESTIONS OF GENDER EQUALITY ARISE
The cases BIGWU v ACCSYS 2008 IC T&T Gooderidge v AG 1998 CA ECSC Wade v Roches 2004 SC, CA Bze Francois v AG 2001, HC ECSC Stonich v Stonich 2003, CA ECSC R v Paddy 2011, HC ECSC
BIGWU v ACCSYS 2008 IC T&T Francois v AG 2001, HC ECSC Wade v Roches 2004 SC, CA Bze Stonich v Stonich 2003, CA ECSC Gooderidge v AG 1998 CA ECSC R v Paddy 2011, HC ECSC Unlawfully & maliciously causing gbh to wife by hitting her with a hammer Junior employee dismissed after making allegations of sexual harassment: held to be oppressive Challenge to the constitutionality of the DVA Appeal by man convicted of indecent assault on stepdaughter and sentence of 2 years Unmarried pregnant teachers dismissed for breach of contract In exercising broad statutory discretion in matrimonial distributing property court must give proper regard to the homemaker contribution Offences in a domestic context should be treated no less seriously DV amounted to a breach of its victims human rights Sentence upheld despite presumptively prejudicial period of delay b/c of special factor Amounted to a violation of right to sex equality and to work under constitution Sexual harassment was an industrial relations matter that impeded equality Ex parte orders not in violation of the constitution 8 years sentence + $5168 in compensation
Contexts Workplace Family Francois v AG Wade v Roches Stonich v Stonich Gooderidge v AG BIGWU v ACCSYS R v Paddy
Family Workplace Dismissal of employee Property Redistribution Application of statutory discretion Interpretation of legislation The development of common law principles Criminal appeals Assessing fundamental rights of D (and victims) Constitutional litigation Dismissal of employee Assessing the constitutionality of protective legislation Application of the constitution Sentencing
How do judges define gender equality? DEFINITION LEGAL BASIS
Definition of gender equality and gender justice Respect for human dignity Addressing vulnerability caused by inequality Equal consideration and regard Equal access to justice and equal protection of the law Full membership and participation in society
Equal regard that takes into account vulnerability Gooderidge v AG 1998 CA Full membership and participation in society Equal consideration and regard Wade v Roches 2004 SC, CA BIGWU v ACCSYS 2008 IC Equal capacity for human flourishing, including access to economic resources Equal consideration and regards Francois v AG 2001, HC Violence reflects and impedes equal regard Private sphere is a realm of inequalities that must be publicly scrutinised Private sphere is a realm of inequalities that must be publicly scrutinised Stonich v Stonich 2003, CA Violence reflects and impedes equal regard Private sphere is a realm of inequalities that must be publicly scrutinised R v Paddy 2011, HC
Primary legal basis: Constitution (the provision does not need to say sex or women) Preamble: WHEREAS the People of Antigua and Barbuda- proclaim that they are a sovereign nation founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person, the entitlement of all persons to the fundamental rights and freedoms of the individual, the position of the family in a society of free men and women and free institutions; 3.- Whereas every person in Antigua and Barbuda is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, regardless of race, place of origin, political opinions or affiliations, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely- life, liberty, security of the person, the enjoyment of property and the protection of the law; freedom of conscience, of expression (including freedom of the press) and of peaceful assembly and association; and protection for his family life, his personal privacy, the privacy of his home and other property and from deprivation of property without fair compensation, PROTECTION FROM DISCRIMINATION ON THE GROUNDS OF RACE, SEX ETC. 14.- Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect. ... no person shall be treated in a discriminatory manner by any person acting by virtue of any law or in the performance of the functions of any public office or any public authority.
How do judges understand their role in respect of addressing gender equality?
As relevant to: Delimiting wide judicial discretion eg property adjmt, sentencing Interpreting the scope of legislation eg industrial relations Interpreting the meaning of constitutional rights in direct challenges The development of the common law consistent with constitutional standards Having regard to constitutional rights even when no direct invocation
When do they address gender inequality?
In everyday judging as a duty to develop common law consistent with constitutional standards Sexual harassment is a breach of the employer s duty to provide a safe place of work 2. As a principled way of exercising judicial discretion eg family property matters 1. 3. Of their own initiative if justice demands it eg. Ensuring proper respect for victims rights
All Contexts including Antidiscrimination cases Criminal appeals Challenges to constitutionality of protective legislation Constitutional Criminal appeals Sentencing Criminal Property distribution Applications for protection orders Family law Dismissal of employees Redress for sexual harassment Employment
They see law as dynamic Especially aware that judges make or have made the common law Judges have a duty to develop it consistent with constitutional standards That duty is especially apparent where the common law entrenches inequality (criminal law and family law Corroboration warning requirements Unity of the spouses and marital rape
They see law as coming from multiple sources that are hierarchical and layered Constitutional premise International norm, instrument Specific legislation
They see law in the context of society They see law as a purveyor of social norms and cultural values They see cultural norms changing over time and the reflection of this in domestic legislation and international human rights law They use these as sources, not all of equal value They refer to social science literature and evidence They put use both narrow and wide lens for seeing law: closely examining the local social context and using international and comparative law as a reflective mirror
They see law as transformative They distinguish norms from normal They use ordinary language to explain notions of human dignity and equality and why what is normal Is changing and Falls short of the accepted or acceptable norm as legally defined They see the possibility of law transforming both material and ideological relations of gender Disrupting gender stereotypes (Paddy, Francois) Redistributing resources (Stonich) Sending a message that law will rule, no impunity (George, Paddy)
How do they think of themselves? BYRON CJ Gooderidge v AG 1998 George v S 2000 Georgetown Comm Sec Judicial Colloquium 1996 As sometimes getting it wrong As capable of changing their minds and of self reflection As having an overriding duty to apply the law and in so doing ensuring accountability for both public and private behaviour WILLIAMS JA Woodall v R 2005 Mayers v R 2009 UN Judicial Colloquium 2004
Who are these judges: trial and intermediate judges Senior and appellate judges But trial judges exercising judicial discretion or interpreting legislation or the constitutions are the standard bearers PC rarely tackles head on equality issues as such (Gilbert, Suratt, Ramjattan)
Questions to ask Who has the burden of proof in bill of rights cases? When and how should we balance different interests and rights? What are areas ripe for development of the common law, including employment relations? How should we use of international human rights norms, instruments and jurisprudence? How do we get appropriate evidence and arguments before the courts, including use of amicus briefs?
