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1 GENDER EQUALITY, THE RULE OF LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS JUDICIAL ACCOUNTABILITY IN ADDRESSING GENDER JUSTICE Judicial Colloquium for.

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Presentation on theme: "1 GENDER EQUALITY, THE RULE OF LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS JUDICIAL ACCOUNTABILITY IN ADDRESSING GENDER JUSTICE Judicial Colloquium for."— Presentation transcript:

1 1 GENDER EQUALITY, THE RULE OF LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS JUDICIAL ACCOUNTABILITY IN ADDRESSING GENDER JUSTICE Judicial Colloquium for the OECS Roxane George Puisne Judge, Guyana November 17 - 18, 2011 St. Lucia

2 2 Gender justice FROM:TO:

3 Gender justice “Judicial sensitivity is most essential for protection and enforcement of women’s human rights.”* * Justice Bhagwati, former Chief Justice of India, Keynote address, Caribbean Judicial Colloquium on the Human Rights of Women and the Girl Child, 1997 - Gender Equality and the Judiciary ed Kirstine Adams & Andrew Byrnes, p 34. 3

4 4 Gender justice What is gender? “Gender is the social construct of sex. Unlike sexual identity, which results from the differing physiological makeup of men and women, gender identity results from the norms of behaviour imposed on men and women by culture and religion.” Culture, religion and gender: an overview by Frances Raday, Prof of Law & Elais Lieberman, Cahir in Labour Law, Hebrew Univ of Jerusalem, Israel in ‘Without Prejudice CEDAW and the determination of women’s rights in a legal and cultural context’ ed by Meena Shivdas & Sarah Coleman, Commonwealth Secretariat, 2010, p 22.

5 5 Gender justice What is Gender Equality? “The concepts of equality and non-discrimination lie at the heart of a gender sensitive perspective.”* “Equality is, at the very least, freedom from adverse discrimination.”** In Andrews v Law Society of British Columbia*** the Canadian Supreme Court interpreted discrimination to mean “practices or attitudes that have, whether by design or impact, the effect of limiting an individual’s or group’s right to the opportunities generally available because of attributed rather than actual characteristics ….” Therefore, in assessing whether a law violates the non- discrimination and equality provisions, “[c]onsideration must be given to the content of the law, its purpose, and its impact upon those to whom it applies, and also upon those whom it excludes from its application.”**** * Justice Bhagwati, former Chief Justice of India, Keynote address, Caribbean Judicial Colloquium on the Human Rights of Women and the Girl Child, Gender Equality and the Judiciary ed Kirstine Adams & Andrew Byrnes, p 34. ** Kathleen Mahoney, ‘Canadian Approaches to Equality Rights and Gender Equity’ in Rebecca Cook (ed), Human Rights of Women: National and International Perspectives, U of Penn Press, 1985, 437 *** 56 DLR (4 th ) 1, 17. **** Ibid., 13.

6 6 Gender justice What is the Rule of Law? “The Rule of law, which is the essential foundation of a just and responsive system of government, requires settled and just laws, fairly administered without fear or favour, for its observance and advancement. Such laws must offer protection to individual citizens and their rights, and especially to the rights of those who belong to minorities or are otherwise disadvantaged as well as opportunities for personal and national social and economic development.”* “The Rule of Law, a cornerstone of good governance and democracy, requires that laws are in place to hold everyone to account, from the individual up to the government. … The rule of law is about the existence of laws, but it is also about implementation ….”** *Nicola Padfield, representative of the Commonwealth Magistrates’ & Judges Assoc at the Georgetown Colloquium 1997 quoting from the Proclamation of the CMJA at its 1994 Victoria Falls Meeting. ** In pursuit of Justice - Progress of the World’s Women 2011-2012 published by UNWOMEN, p 11.

7 7 Gender justice The Evolving Rule of Law As society changes so will the rule of law change as different mores and paradigms become norms, though the foundational principles of the rule of law would remain the same. As the former Chief Justice of Australia is quoted as saying: –“the purpose of judicial development of legal principle is to keep the law in good repair as an instrument of resolving disputes according to justice as it is understood in contemporary society, subject to statute …. In a society where values change and where the relationships affected by law become increasingly complex, judicial development of the law is a duty of the courts – more especially when legislative reform languishes.” * The reality that the rule of law is ever evolving was highlighted in the 1997 Georgetown Recommendations and Strategies for Action on the Human Rights of Women and the Girl Child flowing from the Caribbean Regional Judicial Colloquium where it was stated that the Colloquium recognised that - –“the community’s understanding of fairness and equality may evolve over time and that judges had the power and responsibility to adapt the common law or interpretations of constitutional provisions to meet the changing circumstances of society.” * Kathleen Mahoney, Gender and the Judiciary: Confronting Gender Bias, citing Brenann J in Gala v Preston (1991) 172 CLR 243 at 262 in Gender Equality & the Judiciary, Using International Human Rights Standards to Promote the Human Rights of Women and the Girl Child, Georgetown Colloquium 1997.

8 8 Gender justice What is the gender question? The focus on the rights of women e.g. as victims of sexual offences in the criminal justice system may suggest to some that the rights of the accused are being eroded and that he is in jeopardy of losing his constitutional right to a fair trial. The focus may suggest that women may be dealt with leniently where they have been charged with offences against the person of their partners. Questions which may be asked: Should the right of an accused to a fair trial pursuant to the Constitution trump a rape victim’s right to equal protection of the law pursuant to the non-discrimination, right to life and other human rights provisions of the Constitution? Should the fair trial provisions mean that the gender dimensions of legal issues such as provocation and self defence always be considered for accused women who have been the victims of intimate partner violence?

9 9 Gender justice Answering the gender question? In considering a somewhat related issue, that of special measures directions for vulnerable witnesses and victims, it has been said that the - –“defendant’s birthright under any rational criminal justice system is to a fair trial, that is, a public process whereby the probative value of all of the available admissible evidence can be fairly, thoroughly and effectively tested in the court’s quest to ascertain the truth about past events. Enabling witnesses to give the best evidence of which they are capable not only does not collide with the defendant’s rights, but, it is submitted, is entirely compatible with them.”* * Laura Hoyano ‘Striking a Balance between the Rights of Defendants and Vulnerable Witnesses: Will Special Measures Directions Contravene Guarantees of a Fair Trial?’ [2001] Crim L R 949, 969.

10 Gender justice Answering the gender question? In State v K* the Supreme Court of Namibia held that the mandatory cautionary warning that had to be applied in sexual offences cases had outlived its usefulness and adversely infringed “on the fundamental rights of the victims, to the protection of their fundamental rights, which include a fair trial also in regard to such victims’ rights and interests.” Importantly, the Court also held that: “the High Court as well as the Supreme Court would even be duty bound to raise the issue mero muto, if it appears to that court as a reasonable possibility that the application of an existing rule of procedure or evidence may adversely affect the fairness of the trial, or the outcome of the appeal irrespective of whether it is fairness in regard to the rights and interests of the accused or fairness in regard to the rights and interests of the victim or both.” *[2000] 4 LRC 129. Ibid. p 145. 10

11 11 Gender justice Answering the gender question? Although the Courts in Gilbert v R* (corroboration) and Ramjattan No. 1 and No. 2** (provocation) and Lavallee v R*** (self defence) did not specifically ground their decisions in human rights law or reasoning, these decisions embody human rights principles. The non-discrimination and where applicable equality provisions would, it is submitted, make it mandatory that the judiciary revisit the notion of a fair trial generally and more particularly in the context of women’s rights. This is so because “the principles of fair trial also require that in appropriate cases the interests of the defendant are balanced against those of witnesses or victims called on to testify.”*** Increasingly the court will be called upon to balance the general interests of the community and the victim with those of an accused. (2002) 61 WIR 174. *(1999) 54 WIR 383; (1999) 57 WIR 501. **[1990] 1 SCR 852. *‘**Cross-examination in Rape Trials’ Crim L Rev Sept 1988, 601.

12 Gender justice Answering the gender question? By analogy, in Canada, in Re G and L* where the requirement for corroboration of the evidence of a single woman in paternity proceedings was challenged, the court held that the provision is unconstitutional as being in violation of the equality provision of the Canadian Charter. The Saskatchewan Court of Appeal held that the requirement for corroborating evidence - “requires more of the female petitioner in making her case than it does of the male respondent in successfully meeting the case. The basis of the distinction is a stereotypical view of the single woman involved in affiliation proceedings [and] a significant interest … that of a fair trial, is adversely affected.”** * 50 DLR (4 th ) 758. ** Ibid. at p 759. 12

13 13 Gender justice What is the woman question? Thus one has to also ask – What is the Woman Question? Justice Olivier of the Supreme Court of Appeal of South Africa in State v Jackson* in debunking the view that the cautionary rule in sexual offences cases was justified by the “collective wisdom and experience” of judges, pertinently asked: “Whose wisdom? Whose experience? What proof is there of the assumptions underlying the rule?” Other questions along this line can be e.g. – who is the reasonable man? Is the standard exactly the same as regards the reasonable woman, especially in the context of gender- based violence? What do we really mean when we refer to intention – is it mens rea or men’s rea?** These are questions that can be asked in addressing the issues women face in accessing and interfacing with the justice system as a whole. So we have to examine “how the law fails to take into account the experiences and values that seem more typical of women than of men … or how existing legal standards and concepts might disadvantage women.”*** * 1998 1 SACR 470 at 474 (SCA). ** Nicola Lacey, ‘General Principles of Criminal Law? A Feminist View in Feminist Perspectives on Criminal Law in Donald Nicholson & Lois Bibbings, Feminist Perspectives on Criminal Law, Cavendish Publishing, 2000, 87& 90-96; See also Donald Nicholson, ‘Criminal Law and Feminism’, in Feminist Perspectives on Criminal Law, ibid., 1 at 11 – 13; see also Matthey Rollinson, ‘Re-reading Criminal Law: Gendering the Mental Element in Feminist Perspectives on Criminal Law ibid 101. *** Cook, Rebecca, ‘State Accountability Under the Convention on the Elimination of All Forms of Discrimination Against Women’ in R Cook (ed) Human Rights of Women (U of Pennsylvania Press Philadelphia 1994), 242.

14 14 Gender justice Challenges to the woman question Where statutory changes have been effected, there may be constitutional challenges by accused on the premise that their rights to a fair hearing have been compromised. In other instances there may be resistance to or criticism of a more gender sensitive approach to judging. While holding that the provision excluding evidence of sexual reputation as constitutional, the Supreme Court of Canada in R v Seaboyer, R v Gayme* was divided on the constitutionality of the rape shield provision in the Criminal Code which restricted the defence from introducing evidence of the victim’s sexual conduct, with the majority holding that it was unconstitutional. The majority nevertheless emphasised that “the striking down [of the provision] does not, however, revive old common law rules of evidence which permitted liberal and often inappropriate reception of evidence of the complainant’s sexual conduct. The common law must be adapted to conform to current reality.” The majority then outlined the principles of the new common law rules. *83 DLR (4 th ) 103; Subsequently, legislation had to be enacted to address the issues that resulted from this decision so as to reaffirm the rape-shield provisions.

15 15 Gender justice Answering challenges to the woman question In answering the woman question, the court must recognise that women’s rights to access to justice are fundamental. Gender justice must be assessed more particularly in the context of women’s rights to equality. The court must also appreciate that “women have barely been visible in systems that create, interpret, and apply laws.”* It is essential to recognise that: “if women’s rights are to be recognised and protected and if women are to achieve equality, existing models and values must be questioned and traditional theories, foundations, and boundaries challenged.”** Therefore “strategies must be developed to ensure that women’s voices are heard, that gender- biased myths that buttress the law are removed, that principles applied to the law involve and support women in the legal system, and that judges and other actors in the administration of justice respond to women’s needs.”*** *Kathleen Mahoney ‘Canadian Approaches to Equality Rights and Gender Equity in Courts’ Law’ in Rebecca Cook (ed) Human Rights of Women: National and International Perspectives (Univ of Pennsylvania Press 1994), 438. ** Ibid, 441. *** Ibid 441.

16 16 Gender justice Answering challenges to the woman question The constitutionality of provisions of domestic violence legislation was also upheld by the Constitutional Court of South Africa in The State v Godfrey Baloyi, Minister of Justice & the Commission on Gender Equality*. Justice Sachs, giving the judgment of the Court, specifically referred to international human rights law including the Universal Declaration of Human Rights (1948), CEDAW, the UN Declaration on the Elimination of Violence Against Women and stated: “The problem then, is to find the interpretation of the text which best fits the Constitution and balances the duty of the State to deal effectively with domestic violence with its duty to guarantee accused persons the protection involved in a fair trial.” * Case CCT 29/99.

17 17 Gender justice Answering challenges to the woman question in the Caribbean Chief Justice Byron, as he then was, applied principles regarding women’s human rights into the balancing exercise of the rights of victims versus the rights of accused in Gladstone Goodridge v. R.* in which the accused was on trial for raping a girl. Here, the accused argued that his right to a fair hearing had been infringed because of undue delay in bringing up his case for trial. The Chief Justice said: –“In this case, however, despite the length of the delay, there is a special factor, which we feel the court must consider to determine whether that burden has been discharged. The complainant was a girl child. She was six years old. Her mother was the common law wife of the appellant. St. Vincent and the Grenadines is a member of the Convention on the Elimination of All Forms of Discrimination Against Women. The international norms therefore that are applicable in this society include the duty of the State to protect the interests of the girl child against domestic violence and sexual abuse. The society and the complainant had an important interest in the prosecution of this case.”** The Chief Justice went onto rule that ‘in determining the scope of the constitutionally protected rights of the individual, the court is obliged to balance the rights and interests of the girl child against domestic violence and abuse.’ *(unreported) 12 Jan., 1998, CA, St Vincent & the Grenadines (Crim App No 13 of 1997) **Cited and quoted by Robinson, T., ‘An Analysis of legal change: law and gender-based violence in the Caribbean’ Caribbean Judicial Colloquium on the Application of International Human Rights Law at the Domestic Level, Nassau, The Bahamas 17 – 19 May, 2004, 10 – 11. Ibid p. 11.

18 18 Gender justice Answering challenges to the woman question in the Caribbean And in Martinus Francois v. AG of St. Lucia* Barrow, J. (ag), in upholding the constitutionality of provisions of the domestic violence legislation stated that “[t]he pervasiveness and social acceptance of violence against women point to the fact that such violence is the norm rather than the aberration in our societies.” The learned judge further stated that the “state must protect the right of everyone to be free from violence, including domestic violence.” While in Woodall v R** Williams JA stated that old forms of warning should not be given in sexual offences cases where females are victims because there were disparaging and reinforced false stereotypes which did not accord with CEDAW, the decision as a whole still tends to suggest formulations that speak to sexual complaints being made for different reasons or no reason at all. *Suit 69 of 2001, 24 May, 2001 (HC, St. Lucia). Ibid para 11. Ibid para 12. **(2004) 72 WIR 84, paras 43, 44 & 46 (B’dos).

19 19 Gender justice Asking questions pertinent to the woman question in the Caribbean

20 20 Gender justice Asking questions pertinent to the woman question in the Caribbean In the continuous quest to answer the woman question the following are examples of what we, as judges, may think about and ask: What is the rule of law? Does the rule of law rule women out?* What is gender equality? What is discrimination? What is a fair trial? What is a fair hearing? What is reasonableness? Who is the reasonable woman? What is a relatively minor attack in the context of provocation of a victim of intimate partner violence? What is reasonable defensive action in the context of a woman who is a victim of intimate partner violence? How can the battered wives syndrome be properly applied in our regional circumstances and contexts? When we speak of the right to life shouldn’t we also include a woman’s right to a life free from all forms of violence? * In pursuit of Justice - Progress of the World’s Women 2011-2012 published by UNWOMEN, p 11.

21 21 Gender justice Asking questions pertinent to the woman question in the Caribbean What is the status of women in our justice systems? What is the impact of our decisions and what is the treatment of women in the justice system in the context - –the empowerment of women e.g. women in leadership & decision-making, women in the labour force, equal pay for work of equal value and recognising women’s unwaged work –the interpretation of customary laws and customs that apply in some communities –maternity –the bodily integrity of women –trafficking in persons which affects so many women and girls –poverty alleviation, and –HIV/AIDS etc?

22 22 Judicial accountability vis-à-vis the State’s human rights obligations

23 CARICOM CHARTER of CIVIL SOCIETY Article XII of the CARICOM Charter of Civil Society, our regional human rights charter, provides that - “For the promotion of policies and measures aimed at strengthening gender equality, all women have equal rights with men in the political, civil, economic, social and cultural spheres. Such rights shall include the right: (d) to legal protection including just and effective remedies against domestic violence, sexual abuse and sexual harassment.” 23

24 24 Judicial accountability vis-à-vis the State’s human rights obligations The necessity for the judiciary to bear in mind women’s human rights finds support in the 1997 Georgetown Recommendations and Strategies for Action on the Human Rights of Women and the Girl Child flowing from the Caribbean Regional Judicial Colloquium where it was “recognised that the fundamental duty of judges to ensure the fair and due administration of justice requires judges to be alert to manifestations of gender discrimination in the law and the administration of justice, and to take such measures as lay within their power to redress or eliminate such discrimination.”

25 25 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The judiciary, utilising our Constitutions as the foundation, can apply reasoning grounded in international human rights law so that changes can be effected in the treatment of women in the justice system. International human rights law can be applied - –because of the influence of international human rights norms on the drafting of the fundamental rights or bills of rights provisions* e.g. the non-discrimination and equality provisions; –because of the incorporation of treaties or the provisions of the treaties into domestic law; ** –by the blending of international and domestic law through the process of interpretation.*** *See e.g. Ministry of Home Affairs & Anor v Fisher (1979) 44 WIR 107,PC ; Fuller (Doris) v AG (1998) 56 WIR 337. ** Constitution of Guyana. ***Twyon Thomas v AG & Ors, Motion 12-M/2010, Guyana. Roxane George, Balancing Justice in Rape Trials: Judicial Activism for Gender Equality, Masters Thesis, Univ of Oxford, 2005.

26 26 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law Human rights conventions and international human rights law can be considered as being persuasive authority in the interpretation of Constitutions and the application of human rights law. The Convention on the Elimination of All Forms of Discrimination Against Women* provides a foundation for the application of women’s rights. The International Covenant on Civil and Political Rights ** provides that States are to respect and ensure “equal protection of the law …[including] equal and effective protection against discrimination on any ground such as …sex.” The Declaration on the Elimination of Violence Against Women*** notes that violence against women “is a manifestation of historically unequal power relations between men and women … and … is one of the crucial mechanisms by which women are forced into a subordinate position compared with men.” DEVAW reiterates that women are “entitled to the equal enjoyment and protection of all human rights and freedoms” including the right to life, equality, physical and mental health, liberty and security of the person and not to be subjected to torture, or other cruel, inhuman and degrading treatment.** *CEDAW 1979 UN Doc A/34/180 (1981) **ICCPR art 2 & 26; ICESCR art 3 for non-discrimination and equality provisions. *** Art 13, UN Doc A/48/49 (1993)

27 27 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention Belem do Para)* is our regional treaty that speaks specifically to the issue of violence against women. The Vienna Declaration and Programme of Action 1993** concretised the principle that women’s rights are human rights and states: “The human rights of women and the girl-child are an inalienable, integral and indivisible part of human rights, [and] gender-based violence …[is] incompatible with the dignity and the worth of the human person, and must be eliminated.”** The Beijing Declaration and Platform for Action 1995*** includes violence against women as one of its twelve critical areas of concern to women.** * 33 ILM 1534 (1994) ** World Conference on Human Rights, Vienna 14 - 25 June, 1993, UN Doc.A/CONF.157/24 (1993) *** A/CONF.177/20 (1995)

28 28 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The views and comments of international bodies such as the International and Regional Human Rights bodies, e.g. the UN Committee on the Elimination of Discrimination Against Women, which apply and interpret international human rights law can also be utilised. Therefore e.g. General Recommendation No. 19*, issued by the CEDAW Committee which clearly states that gender based violence constitutes discrimination against women pursuant to CEDAW, can be considered and applied nationally. The Human Rights Committee in General Comment 28 on the ICCPR expressed the view that gender-based violence violates the provisions of the ICCPR against torture and inhuman treatment and requires State protection in relation to the actions of persons in public and private life.** Judges should also be aware of the Millennium Development Goals, particularly Goal 3 on gender equality and empowerment of women, though the eight goals are interdependent. UN Doc A47/38(1992) Equality of rights of men and Women CCPR/C/21/Rev.1Add. 10, 29 March, 2000. See also e.g. General Comment 18 (37) of the UN Human Rights Committee on non-discrimination (adopted 1989)

29 29 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law Bearing our constitutional provisions and human rights law in mind, “[i]t is the duty of the judiciary to understand the nature, extent and impact of violence against women in the conduct of proceedings in their courts and in their judgments.”* Constitutional provisions can be utilised by the courts as a basis for addressing the myths associated with the public – private dichotomy regarding the enforcement of women’s rights and for upholding our countries’ responsibilities in relation to their international human rights obligations, especially as CEDAW speaks to state responsibility for private actors.** Thus, the international human rights obligations of our countries to fulfil, promote and protect the rights of their citizens – in this instance women – that is, the due diligence obligations, as enunciated in Velasquez Rodrigues v Honduras*** must be appreciated by the judiciary as an integral, though independent arm of the State. * The Challenge of Bangalore: Making Human Rights a Practice Reality 47, Commonwealth Judicial Colloquium, Bangalore, India, Dece 1998 – Principle 14, 25 Commonwealth Law Bulletin 47 at 59. ** CEDAW art 5. *** Inter-Am Ct HR (Ser C) No. 4 (1988) July 29 1988.

30 30 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The due diligence test as outlined in Velasquez Rodriguez v Honduras, and the Convention Belem do Para were applied directly to a case of violence against women in Maria de Penha v Brazil.** In this case, the Inter-American Commission on Human Rights concluded that Brazil had violated the rights of the petitioner and was therefore liable to her for the delay in effectively prosecuting her husband for domestic violence. It further concluded that the violation amounted to a “pattern of discrimination evidenced by the condoning of domestic violence against women in Brazil through ineffective judicial action.” The Commission recommended the payment of compensation to the petitioner and the adoption of measures at the national level to address domestic violence. * Annual Report, Inter-Am Commission on Human Rights, Case No. 12.051, Inter-Am. CHR 704, OEA/Ser. L/V/II.III doc. 20 rev. (Apr 16 2001).

31 31 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law Similarly, in MZ v Bolivia* the Commission determined that Bolivia would have violated the rights of the petitioner if the allegations concerning the judicial overturning of a rape conviction in the face of overwhelming evidence were true. In MC v Bulgaria**, the European Court of Human Rights held that Bulgaria had violated the rights of a 14 year old girl by failing to effectively investigate rapes allegedly committed on her. The Supreme Court of India in Vishaka v State of Rajasthan***, applied articles 11 and 24 of CEDAW, General Recommendations of the CEDAW Committee and the Beijing Platform for Action, which flowed from the World Conference on Women, in holding that sexual harassment of working women was a violation of inter alia their constitutional rights to gender equality, life and liberty in an environment where sexual harassment was not uncommon. The court stated that it had no hesitation in placing reliance on the international human rights provisions for the purpose of construing the nature and ambit of constitutional guarantees of gender equality in the Constitution. * Annual Report, Inter-American Comm of HR, Case No. 12.350, Inter-Am. CHR 121, OEA/Ser. L/VII.114 Doc 5 rev (Oct 10 2001). ** 2003-I ECHR 646 (Apr 3 2004). *** (1997) 6 SCC 241; [1997] 3 LRC 361; See also Apparel Export Promotion Council v Chopra [2000] LRC 563.

32 32 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law In 2008, the European Court of Human Rights in Bevacqua & S v Bulgaria* found Bulgaria to be in violation of the rights of the complainant where for years the administration of justice system failed to protect her and her son from the violence perpetrated by her husband and where she had encountered many difficulties regarding securing custody of her son.* The court reasoned that respecting private and family life may include “a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals.” * Cited in In pursuit of Justice - Progress of the World’s Women 2011-2012 published by UNWOMEN, p 46. ]

33 33 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law And in 2010 in the Philippines, a rape survivor complained to the CEDAW Committee under the Optional Protocol about discriminatory attitudes among the judiciary. She alleged that gender based myths and misconceptions about rape, including that rape victims are timid and easily cowed and that when a woman knows her attacker consent is implied, were relied on by the judge in her case leading to the acquittal of the accused. The Committee found that the woman was re-victimized through her treatment by the court and stressed that “stereotyping affects women’s rights to a just and fair trial.” The Committee further stated that “the judiciary must take caution not to create inflexible standards of what women and girls should be, or what they should have done when confronted with a situation of rape, based merely on preconceived notions of what defines a rape victim or a victim of gender-based violence.”* The Committee recommended that the government award compensation and put in place appropriate training for judges, lawyers, law enforcement officers and medical personnel, to avoid re-victimizing women and “to ensure that personal mores and values do not affect decision-making.”* * In pursuit of Justice - Progress of the World’s Women 2011-2012 published by UNWOMEN, p 55.

34 34 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The recognition of due diligence obligations is especially important because invariably, “States do not see themselves as responsible for violations of women’s rights by private actors.”* A failure on the part of the judiciary to uphold the human rights norms would amount to a failure by the State to live up to its international obligations. A failure to be a responsive judiciary to women’s rights issues may mean that judges may be complicit in the violation of the rights of individuals which they have sworn to protect without fear or favour. The state would be liable even indirectly for ‘its failure … potentially through its judicial or legislative branches, to act appropriately in anticipation of or in consequence of private acts.’** Such responsibility accrues for acts or omissions of the judiciary even though it is constitutionally independent because state accountability is a fundamental principle of international law whereby a state can be held liable for breaches of its international obligations even to the extent of being liable to pay compensation. * Preliminary Report of the UN Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN.4/1995/42, para 107. ** Rebecca Cook, ‘State Accountability Under the Convention on the Elimination of All Forms of Discrimination Against Women’, in R. Cook, ed The Human Rights of Women: National and International Perspectives, Univ of Pennsylvania Press, Philadelphia, 1994, 238.

35 35 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The “emergence of State responsibility for violence in society plays an absolutely crucial role in efforts to eradicate gender-based violence and is perhaps one of the most important contributions of the women's movement to the issue of human rights.”*. State obligations to respect, protect and promote respect for human rights mean that each branch of government must “introduce and maintain rules and procedures to provide and promote compliance, in discharging their functions within the international human rights customs by which they are bound.” ** Justices Byron and Barrow spoke to these issues in Gladstone and Francois. In the context of being gender conscious, judges will also have to assess and reassess what should and should not be admissible evidence. A conscious effort should be made to use gender neutral language as part of the response to promoting the human rights of women and girls. And in summing up to juries, judges would have to take account of gender perspectives where relevant and in effect enlighten juries as to more modern ways of assessing evidence so as to address societal, cultural and stereotypical views e.g. regarding marital rape, commercial sex workers etc. “The judiciary, as an integral though independent arm of the State, must endeavour to ensure that as the guardian of the Constitution, it does not in effect violate the provisions of the Constitution by utilising and or upholding laws which are discriminatory.”*** * Preliminary Report of the UN Special Rapporteur on Violence Against Women, Its Causes and Consequences, E/CN.4/1995/42, para 107. ** The Challenge of Bangalore: Making Human Rights a Practice Reality, Principle 6, at p 58. *** Roxane George, Balancing Justice in Rape Trials: Judicial Activism for Gender Equality, Masters Thesis, Univ of Oxford, 2005

36 36 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law The judiciary has to take up the challenge to do its part in honouring our States’ commitments and obligations in implementing international human rights law and the instruments by which they are bound. Judges should adopt interpretations of the Constitutions and laws that do not conflict with State international obligations. The judiciary, as it always does, has a pivotal role to play as the guardian of the interests of justice, for ultimately it is this arm of the State which will have the final say on the application of the fundamental rights and human rights, and most notably for women CEDAW and Convention Belem do Para. The overarching framework of international human rights law permits the judiciary to educate itself and “engage the law’s transformative potential … to permit the development of a theory of equality that will advance women’s interests, identify and recognize violations of their rights, and lead to effective remedies.”* * Kathleen Mahoney, Canadian Approaches to Equality Rights and Gender Equity in Courts’ Law’ in Rebecca Cook (ed) Human Rights of Women: National and International Perspectives (Univ of Pennsylvania Press 1994), 441.

37 37 Judicial accountability vis-à-vis the State’s human rights obligations – applying international human rights law Generally, the implementation of the international human rights conventions by our states is monitored in the case of the United Nations by UN Committees, established pursuant to the various human rights conventions. Our States have reporting obligations to these UN Committees. These reports should contain information on the role of the judiciary as an arm of the State regarding its human rights treaty obligations. Representatives appear before the committees to defend the country reports. These committees also receive shadow reports on the human rights performances of our states. In the case of territories which have signed Optional Protocols, individuals can make complaints about allegations of violations of their human rights to these committees. In the case of the Inter-American system, the Inter-American Commission for Human Rights and the Inter-American Court of Human Rights can receive complaints regarding violations. These complaints may refer to decisions of our courts. While it is recognised that there is and would be tension as regards the views or recommendations expressed by human rights bodies and human rights advocates and activists, and our judicial role and pronouncements nationally, knowledge and appreciation of these views and recommendations can only enhance the human rights discourse.

38 38 Conclusion The Courts, in terms of ensuring that human rights are upheld, have been given the specific mandate to take up the mantle and interpret our Constitutions in light of international human rights norms. It is incumbent on the judiciary to show some judicial activism and make our Constitutions truly living documents so that they are grounded in our ever changing and dynamic societies. The jurisprudence permits a more enlightened approach and the judiciary should not be hesitant in calling for submissions on human rights where relevant and in articulating newer ways of addressing age old concerns in relation to women’s human rights and human rights generally. The interpretation of human rights provisions should be generous rather than legalistic so as to secure the full benefit of the constitutional provisions for the protection of individuals. Caribbean judges have been and must continue to be change agents. We cannot allow the constructs of culture, religion and societal views about gender to cloud our response as judges to gender issues. Further, “what must be understood is that gender bias in the application and interpretation of laws is important not only for individual women before the courts. To the extent that the justice system suffers from gender bias, the system fails in its primary societal responsibility to deliver justice impartially. As a consequence, the administration of justice as a whole suffers. The legitimacy of the entire system is brought into question.”* * Kathleen Mahoney, ‘Canadian Approaches to Equality Rights and Gender Equity in Courts’ Law’ in Rebecca Cook (ed) Human Rights of Women: National and International Perspectives (Univ of Pennsylvania Press 1994), 441, 452.

39 39 Conclusion The Goddess of Justice is a woman who holds the scales of justice evenly balanced. She cannot be seen to be a symbol for the protection of the rights of men more than she protects the rights of women and vice versa. It would be ironic if in this 21 st century, the Goddess of Justice does not have a gendered perspective. Chief Justice Bhagwati has commented that he disagrees with the image of Lady Justice as being blindfolded, preferring that she keep her eyes wide open to see the many injustices and inequalities which women suffer.* Judicial objectivity, fairness and impartiality in promoting the observance of human rights generally are key to the ultimate realization that women’s rights are human rights so that there is a just response to addressing gender issues. * Justice Bhagwati, former Chief Justice of India, Keynote address, Caribbean Judicial Colloquium on the Human Rights of Women and the Girl Child, Gender Equality and the Judiciary ed Kirstine Adams & Andrew Byrnes, p 34.

40 40 GENDER EQUALITY, THE RULE OF LAW AND INTERNATIONAL HUMAN RIGHTS STANDARDS JUDICIAL ACCOUNTABILITY IN ADDRESSING GENDER JUSTICE Judicial Colloquium for the OECS, St. Lucia Roxane George Puisne Judge Guyana November 17 - 18, 2011


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