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...
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Transcript of AN ANATOMY OF JUDGING GENDER EQUALITY & GENDER JUSTICE CONCERNS IN THE CARIBBEAN TRACY ROBINSON MONA...
AN ANATOMY OF JUDGING GENDER EQUALITY &
GENDER JUSTICE CONCERNS IN THE
CARIBBEAN
TRACY ROBINSONMONA LAW, UWI
Eastern Caribbean Supreme Court Judicial Education Institute
Colloquium on Gender and the Law
Outline
Preliminary points
6 Cases & Contexts
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?
IS IT LEGITIMATE FOR JUDGES TO PROMOTE GENDER EQUALITY?
WHAT ARE THE RIGHT TERMS OR NAMES TO DESCRIBE THE PROJECT?
Preliminary Points
CANON 3A JUDGE SHOULD
[A] MAINTAIN PROFESSIONAL COMPETENCE IN THE LAW, AND SHOULD
NOT BE SWAYED BY PARTISAN INTERESTS, PUBLIC CLAMOR, OR FEAR OF CRITICISM.
PRELIMINARY POINT I: Is it legitimate for judges to promote
gender equality
YES: Because judicial independence has an instrumental value in the promotion of the rule of law
THE RULE OF
LAW: Judges have an
overriding duty to apply the
law
JUDICIAL INDEPENDENCE: Judges must have
freedom to do so without
favour/fear
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
Equal protection of the law
The law cannot rule if it does not protect All entitled to equal access to justice
Overall fairnessVictims of crime are entitled to fair legal proceedings in matters that concern them
No one, however powerful, is above the law Especially state actors But also ordinary citizens in their private as
well as public lives
Access to justice for allMust be able to get into the court door Must be able to get effective relief
PRELIMINARY POINT 2: What nomenclature to describe the project? Gender equality/justice? Both!, Gender Neutrality?
Depends!
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
Disaggregating JUSTICE• The
goal of the rule of law
• Overall fairness
• The law applies to everyone
• Everyone should be protected by the law
Developing EQUALITY• Not
purely formal
• Not a ‘mathematical formula solved by similar treatment’
• Discrimination only one aspect of equality
• Takes into account vulnerability
• Can mean different treatment
Nuancing NEUTRALITY• access to
justice to for all +
• responsiveness to inequality and vulnerability
WHEN QUESTIONS OF GENDER EQUALITY ARISE
The Cases and their Contexts
The cases
Gooderidge v AG 1998 CA ECSC
Wade v Roches
2004 SC, CA Bze
BIGWU v ACCSYS2008 IC
T&TFrancois v
AG2001, HC
ECSC
Stonich v Stonich
2003, CA ECSC
R v Paddy 2011, HC
ECSC
Gooderidge v AG
1998 CA ECSC
Appeal by man
convicted of indecent
assault on stepdaughte
r and sentence of
2 years
Sentence upheld despite
‘presumptively prejudicial’
period of delay b/c of
special factor
Wade v Roches
2004 SC, CA Bze
Unmarried pregnant teachers dismissed for breach of contract
Amounted to a
violation of right to sex equality and
to work under
constitution
BIGWU v ACCSYS2008 IC
T&T
Junior employee dismissed
after making allegations of
sexual harassment: held to be oppressive
Sexual harassment
was an industrial relations
matter that impeded equality
Francois v AG
2001, HC ECSC
Challenge to the
constitutionality of the
DVA
DV amounted to a breach
of its victims human rights
Ex parte orders not in violation
of the constitution
Stonich v Stonich
2003, CA ECSC
In exercising
broad statutory discretion
in matrimonia
l distributing
property court must give proper regard to
the homemaker contributio
n
R v Paddy 2011, HC
ECSC
Unlawfully & maliciously
causing gbh to wife by hitting
her with a hammer
Offences in a domestic
context should be treated no less seriously
8 years sentence + $5168 in
compensation
Contexts
Workplace
Wade v Roches
BIGWU v ACCSYS
Family
Francois v AG
Stonich v Stonich
Gooderidge v AG
R v Paddy
Family Workplace
Property Redistribution
• Application of statutory discretion
Criminal appeals
• Assessing fundamental rights of D (and victims)
Constitutional litigation
• Assessing the constitutionality of protective legislation
Sentencing
Dismissal of employee
• Interpretation of legislation• The development of common law
principles
Dismissal of employee
• Application of the constitution
DEFINITIONLEGAL BASIS
How do judges define gender equality?
Definition of gender equality and gender justice
Respect for human dignity
Equal consideration
and regard
Full membership and participation
in society
Equal access to justice and equal protection of the
law
Addressing vulnerability
caused by inequality
Gooderidge v AG 1998 CA
•Equal regard that takes into account vulnerability
Wade v Roches 2004 SC, CA
•Full membership and participation in society•Equal consideration and regard
BIGWU v ACCSYS2008 IC
•Equal capacity for human flourishing, including access to economic resources•Equal consideration and regards
Francois v AG2001, HC
•Violence reflects and impedes equal regard•Private sphere is a realm of inequalities that must be publicly scrutinised
Stonich v Stonich 2003, CA
•Private sphere is a realm of inequalities that must be publicly scrutinised
R v Paddy 2011, HC •Violence reflects and impedes equal regard•Private sphere is a realm of inequalities that must be publicly scrutinised
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
Having regard to constitutional rights
even when no direct invocation
The development of the common law consistent with constitutional
standards
When do they address gender inequality?
1. 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
3. Of their own initiative if justice demands it• eg. Ensuring proper respect for victims’ rights
All Contexts including
Constitutional•Antidiscrimination cases•Criminal appeals•Challenges to constitutionality of protective legislation
Criminal •Criminal appeals•Sentencing
Family law •Property distribution•Applications for protection orders
Employment •Dismissal of employees•Redress for sexual harassment
What methods do they use?
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
definedThey 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?
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
Georgetown Comm
Sec Judicial
Colloquium 1996
•BYRON CJ•Gooderidge v AG 1998•George v S 2000
UN Judicial Colloquium 2004
•WILLIAMS JA•Woodall v R 2005•Mayers v R 2009
Who are these judges: trial and intermediate judges
Senior and appellate judgesBut 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?