AN ANATOMY OF JUDGING GENDER EQUALITY &

GENDER JUSTICE CONCERNS IN THE

CARIBBEANTRACY ROBINSONMONA LAW, UWI

Eastern Caribbean Supreme Court Judicial Education Institute

Colloquium on Gender and the Law

Outline

Preliminary points6 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 stepdaughter 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&TJunior

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?