1. AN ANATOMY OF JUDGING GENDER EQUALITY & GENDER JUSTICE CONCERNS IN THE CARIBBEAN TRACY ROBINSON MONA LAW, UWI Eastern Caribbean Supreme Court Judicial Education Institute Colloquium on Gender and the Law

2. 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?

3. IS IT LEGITIMATE FOR JUDGES TO PROMOTE GENDER EQUALITY? WHAT ARE THE RIGHT TERMS OR NAMES TO DESCRIBE THE PROJECT? Preliminary Points

4. 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. PRELIMINARY POINT I: Is it legitimate for judges to promote gender equality

5. 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

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 Equal protection of the law The law cannot rule if it does not protectAll entitled to equal access to justice Overall fairness Victims 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 all Must be able to get into the court doorMust be able to get effective relief

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 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 vulnerabilit y

9. WHEN QUESTIONS OF GENDER EQUALITY ARISE The Cases and their Contexts

10. 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

11. 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 ACCSYS 2008 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 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

12. Contexts Workplace Wade v Roches BIGWU v ACCSYS Family Francois v AGStonich v StonichGooderidge v AGR v Paddy

13. Family Workplace Application of statutory discretion Property Redistribution Assessing fundamental rights of D (and victims) Criminal appeals Assessing the constitutionality of protective legislation Constitutional litigationSentencing Interpretation of legislation The development of common law principles Dismissal of employee Application of the constitution Dismissal of employee

14. DEFINITION LEGAL BASIS How do judges define gender equality?

15. 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

16. 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 Equal capacity for human flourishing, including access to economic resources Equal consideration and regards BIGWU v ACCSYS 2008 IC Violence reflects and impedes equal regard Private sphere is a realm of inequalities that must be publicly scrutinised Francois v AG 2001, HC 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

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: 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

20. When do they address gender inequality?

21. 1. In everyday judging as a duty to develop common law consistent with constitutional standards Sexual harassment is a breach of the employers 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

22. 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

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 Constitutional premise International norm, instrument Specific legislation

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 BYRON CJ Gooderidge v AG 1998 George v S 2000 Georgetown Comm Sec Judicial Colloquium 1996 WILLIAMS JA Woodall v R 2005 Mayers v R 2009 UN Judicial Colloquium 2004

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?