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 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? 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 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  (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! 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 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 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 Nuanci ng NEUT RALIT Y • access to justice to for all + • responsive ness to inequality and vulnerabili ty The Cases and their Contexts WHEN QUESTIONS OF GENDER EQUALITY ARISE The cases Gooderidge v AG 1998 CA ECSC Wade v Roches 2004 SC, CA Bze BIGWU v ACCSYS 2008 IC T&T Francois v AG 2001, 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 stepdaughter and sentence of 2 years Wade v Roches 2004 SC, CA Bze BIGWU v ACCSYS 2008 IC T&T Unmarried pregnant teachers dismissed for breach of contract Junior employee dismissed after making allegations of sexual harassment: held to be oppressive Francois v AG 2001, HC ECSC Challenge to the constitutionality of the DVA 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 Stonich v Stonich 2003, CA ECSC Ex parte orders not in violation of the constitution In exercising broad statutory discretion in matrimonial distributing property court must give proper regard to the homemaker contribution 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 Property Redistribution • Application of statutory discretion Criminal appeals • Assessing fundamental rights of D (and victims) Constitutional litigation • Assessing the constitutionality of protective legislation Sentencing Workplace Dismissal of employee • Interpretation of legislation • The development of common law principles Dismissal of employee • Application of the constitution 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 access to justice and equal protection of the law Equal consideration and regard Full membership and participation in society Gooderidge v AG 1998 CA Wade v Roches 2004 SC, CA BIGWU v ACCSYS 2008 IC • Equal regard that takes into account vulnerability • Full membership and participation in society • Equal consideration and regard • 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 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 Having regard to constitutional rights even when no direct invocation Interpreting the meaning of constitutional rights in direct challenges The development of the common law consistent with constitutional standards When do they address gender inequality? In everyday judging as a duty to develop common law consistent with constitutional standards 1. 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 Criminal Family law Employment • Antidiscrimination cases • Criminal appeals • Challenges to constitutionality of protective legislation • Criminal appeals • Sentencing • Property distribution • Applications for protection orders • 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 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? 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 • BYRON CJ Comm Sec • Gooderidge v AG 1998 Judicial Colloquium • George v S 2000 1996 • WILLIAMS JA UN Judicial • Woodall v R 2005 Colloquium • Mayers v R 2004 2009 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?