Eastern Caribbean Supreme Court Judicial Education Institute Colloquium on Gender and the Law

1. Eastern Caribbean Supreme Court Judicial Education InstituteColloquium on Gender and the Law An Anatomy of Judging Gender Equality & Gender Justice concerns in the Caribbean Tracy Robinson Mona Law, UWI

2. 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

3. Preliminary Points Is it legitimate for judges to promote gender equality? What are the right terms or names to describe the project?

4. 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.

5. YES: Because judicial independence has an instrumental value in the promotion of the rule of law

6. 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.

7. 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

8. 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

9. The Cases and their Contexts When questions of gender equality arise

10. The cases

12. Contexts

13. Family Workplace

14. How do judges define gender equality? Definition Legal basis

15. Definition of gender equality and gender justice

17. 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.

18. How do judges understand their role in respect of addressing gender equality?

19. As relevant to:

20. When do they address gender inequality?

21. 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 • As a principled way of exercising judicial discretion • eg family property matters • Of their own initiative if justice demands it • eg. Ensuring proper respect for victims’ rights

22. All Contexts including

23. What methods do they use?

24. 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

25. They see law as coming from multiple sources that are hierarchical and layered

26. 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’

27. 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)

28. 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

29. 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)

30. 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?