Issues about gender equality are very much in the news these days. I thought it might be useful to add to the discussion the text of a talk I gave eight years ago, soon after I retired from the Court of Appeal. At that time I was the Executive Vice-President of the Commonwealth Magistrates’ and Judges’ Association, and our regional conference in Bermuda in 2007 was brilliantly organised by Justice Norma Wade-Miller, a local High Court Judge, who in due became the President of the Association.
The star of that conference, I rccall, was Justice Leona Theron, an outstanding young South African judge, for whom glass ceilings presented no obstacles at all to her very obvious talent. And there were many other fine female judges from other parts of the Commonwealth there, too. What is it in England that has made us lag so far behind the rest of the world? It is good to see that real efforts are now being made to seek out the answer.
Setting the Scene: Equality and the Courts, Some Issues for the Judiciary
An address given at the Commonwealth Magistrates’ and Judges’ Association’s regional conference in Bermuda, 20th August 2007
Today we are meeting under the shadow of Dame Lois Browne-Evans’s death. She was Bermuda’s first female barrister, Bermuda’s first female Attorney General, and the first female Opposition Leader in all the countries of the Commonwealth. When she died, the First Minister of Bermuda told how she shattered glass ceilings, battled racism, empowered women and uplifted black men. He said that the people of Bermuda were saying farewell to a legend like none other.
It is therefore very appropriate that this conference is about equality. Most of it will be about gender equality, but in this opening talk I want to put that topic in a wider context. To most lawyers and judges, equality is a topic which has only come to the fore in the last thirty years. I didn’t learn much about it when I studied for my Bar exams in the early 1960s. And equality means different things to different people.
When the six founder members of the European Community signed the Treaty of Rome in 1957, equal pay for equal work meant equality between men and women. When we introduced an Equal Pay Act in the UK over 30 years ago, this was what that Act was all about. But gradually over the years what is meant by the obligation to provide equal treatment for everyone has steadily widened.
In England and Wales we are all issued with an Equal Treatment Bench Book. You can pull it down from the Judicial Studies Board’s website where it is available for everyone in the world to read. The first section is called “Equality before courts and tribunals.” It starts with a piece on equality and justice, and continues with chapters on diversity, unrepresented parties, social exclusion and poverty, minority ethnic communities and equality law. These are all “must reads” for all judicial officers.
There are then six other sections that give very practical advice to judges and magistrates on different themes: “minority ethnic communities” (again), belief systems, children, disability, gender inequality (which includes a bit about gender reassignment) and sexual orientation. This is what today’s equality agenda is all about.
There was nothing at all of this kind available to judges and magistrates when I became a full-time judge in 1988 – still less when I became a part-time judge in the early 1980s. We were all supposed to be fair, and to do our best when we were judging cases involving people whose culture or religious beliefs were very different from our own, but we didn’t receive any specific advice on how to do it.
Although this bench book contains masses of factual information, its main thrust is practical. It starts with some key points which I think are worth reading in full, because for the judicial officer this is the underlying theme of this conference.
Equal access to justice
Most people find an appearance before courts or tribunals to be a daunting experience.
People who have difficulty coping with the language, procedures or facilities of courts or tribunals are equally entitled to fairness and justice.
People who are socially and economically disadvantaged in society may assume that they will be at a disadvantage when they appear before a court or tribunal.
Those at a particular disadvantage may include people from minority ethnic communities, minority faith communities, individuals with disabilities (physical or mental), women, children, those whose sexual orientation is not heterosexual, and those who through poverty or any other reason are socially or economically excluded.
Just because someone remains silent does not mean that they necessarily understand, or that they feel they have been adequately understood. They may simply feel too intimidated, too inadequate or too inarticulate to speak up.
Ensuring fairness and equality of opportunity may mean providing special or different treatment.
Effective communication is the bedrock of the legal process – everyone involved in proceedings must understand and be understood or the process of law will be seriously impeded. Judicial office-holders must reduce the impact of misunderstandings in communication.
Unless all parties to proceedings accurately understand the material put before them, and the meaning of the questions asked and answers given during the course of the proceedings, the process of law is at best seriously impeded and at worst thrown seriously off course.
Discrimination must not be permitted, whether direct or indirect. Recognising and curbing our prejudices is essential to prevent erroneous assumptions being made about the credibility of those with backgrounds different from our own.
Most people ‘read’ behaviour in terms of their own familiar cultural conventions and in doing so can often misunderstand. Ethnocentrism – the use of one’s own taken-for-granted cultural assumptions to (mis)interpret other people’s behaviour – is a common human failing.
This is about treating everyone who comes to court with dignity and respect. It is about administering the law in a way that appears fair to everyone: in a way that everyone feels comfortable with. People should be able to go home after a day in court and tell their friends and family:
“Even though I lost, they really listened to me. They really understood what I was saying to them, and I thought I had had a fair deal.”
I remember Anesta Weekes QC, whose family comes from Montserrat, telling a judges’ training course in England 15 years ago that she once had a Jamaican client who was really angry about the British justice system. He told her he didn’t think for a moment he would have a fair trial. He had such a broad Jamaican accent that she had difficulty in understanding what he was saying. During the trial the judge handled him beautifully. Without being patronising, he made sure that the jury understood everything he wanted to say. After the trial was over, and he had been inevitably convicted, Anesta went down to see him in the cells, where he told her how impressed he had been with the fairness of his trial. This is what equal treatment is all about.
But this isn’t what always happens, in my country at least. An experienced academic researcher, Professor John Baldwin, recently conducted a study into people’s perceptions of small claims process, and this is what he had to say:
“With or without a lawyer, few lay people say that they feel at ease in this setting. Many litigants described in interviews how they were taken aback by their first sight of the courtroom and its formality … The interviews were peppered with words like ‘ intimidating’, ‘daunting’, ‘frightening’, ‘terrifying’, ‘forbidding’, and ‘formidable’…
Less than half of the unrepresented litigants … said that they coped well in this setting and even those who were represented by counsel frequently said that they found the court appearance a daunting experience … a few described how they had gone to pieces when they realised what was expected of them.”
This is the opposite to what is meant by Equality and the Courts.
In her speech at our conference in Toronto last year, Chief Justice Beverley McLachlin told us that for a judicial officer deciding a case in accordance with the law, in a reasonable time, and in accordance with the processes mandated by law, is only one part of the judicial task. Justice must also be delivered in a responsive manner, one that takes account of the social context, and the different perceptions of those who seek it.
She went on to make the point I have quoted from the bench book about the need to avoid what she called false assumptions about cultural differences. In a world marked by pluralism, she said, and in communities where diversity is so prevalent, the judge must become the interpreter of difference. The judge must become the one who listens to every voice and understands them all.
And this does mean every voice. A judicial officer cannot pick and choose which voices to listen to with special care, because he or she has a sense that they are people who are particularly disadvantaged. In his Kapila lecture in 1992, Jerome Mack, a very experienced black American equality trainer, said:
“I am totally at ease on the issue of race. I am somewhat less at ease on the issue of gender. I am not quite at ease on the issue of disability. So race is my issue, I feel confident on that issue, I can talk to that issue. But if I can only talk about discrimination based on race then I am not against discrimination. I’m against discrimination against black people. And I say, if you are going to be about discrimination then you must say that any discrimination which is arbitrary, is bad. Not just discrimination that talks to your issue. I find that a lot of people are advocating their own issues as a way forward, but when they come to other people’s issues they have no understanding or clarity about them. I find ethnic minorities who are sexist and cannot begin to understand the ramifications of sexism, but they cry crocodile tears when it comes to racism. I find women who are emotive on the issue of sexism and have no understanding of racism or disability and do not care. I say then that you are talking about self-interest, you are not talking about discrimination. We are ill-at-ease on this subject, except our own issue”.
But I am here to talk particularly about gender equality, which has never been a topic at which I have been particularly at ease. One must always be careful to ensure that prejudices about what were traditionally regarded as the different roles for men and women don’t creep into the process of judging. About 15 years ago my wife was a member of a school board charged with the job of choosing a new headteacher. One of her male colleagues asked a female candidate why she wanted the job and why she didn’t prefer the role of bringing up children at home. The local authority representative on the Board immediately cut in.
“Don’t answer that question”, she said. “It’s illegal”.
Another of Jerome Mack’s stories arose from an experience he had had when advising the board of a bank. It was full of well-meaning men who were genuinely worried because they were very good at recruiting women to the lowest grade jobs, but when it came to promotions, women fared very much less well than men. Jerome listened to them carefully, and then asked if he could take home twenty personal appraisal reports, picked at random, with an equal number of reports on men and women. The next day he brought the reports back, with copies made of them so that all the names were blanked out. He then asked each member of the board to do a little test. They should read each report carefully and then guess whether it was being written about a woman or a man. They were all 100% correct. The criteria that were being used by their line managers at that level were quite different for men and women employees. This was unconscious bias, built up of the prejudices about the role of females which those line managers had gained over the years. It was resulting in a great deal of injustice for the women concerned.
When we come to talk about issues of gender equality within the Commonwealth, we find that the path is strewn with similar prejudices, which may be conscious or unconscious. A lot of the prejudices stem from the religious codes that have come down through the centuries. For Christians, for instance, the teachings of St Paul had a lot of influence over the years in relation to the way in which women were treated. In his letter to Timothy he said that women should adorn themselves in modest apparel, with shamefacedness and sobriety; not with broided hair, or gold, or pearls, or costly array, but with good works, as becometh women professing godliness.
“Let the woman learn in silence with all subjection”, he said.
Women were legally subjected to men as a matter of English law in a number of remarkable ways until well into the twentieth century. Marriage, or coverture, under the common law amounted to the extinction of the wife’s independent legal being. Blackstone wrote:
“The very being or legal existence of the wife is suspended during marriage or at least incorporated and consolidated into that of the husband under whose wing, protection and cover she performs.”
The husband had the right to administer lawful and reasonable correction to his wife. A married woman could not enter into a legally binding contract unless she was a merchant in her own right. She could not make a will without the consent of her husband. It is only 125 years since the Married Women’s Property Act was passed, which ended a lot of these old rules. But some of them lingered on. Women were not entitled to vote in our national elections on equal terms as men until 80 years ago. Until very recently the English common law was interpreted as meaning that a husband could not be convicted of raping his wife.
Muslims, too, have inherited stricter rules in relation to the way women may behave than are current in many parts of the non-Muslim world. Devout Muslims follow the teaching in that passage from the Holy Quran which I quoted in my judgment in the case of the schoolgirl who wanted to wear the jilbab:
“And tell the believing women to lower their gaze and guard their sexuality, and to display of their adornment only what is apparent, and to draw their head-coverings over their bosoms….
O Prophet, tell your wives and daughters and the believing women to draw their outer garments around them when they go out or are among the men.”
There are elements of Shari’a law which are much more favourable to women than their equivalents in the common law. But there are other features of it, for example the penalty of death by stoning for a woman caught committing adultery, that seem barbarous to most non-Muslims today.
But it is not only our inheritance from Christian and Muslim moral codes that confront the judicial officer in the Commonwealth in these days of the pluralism and diversity of which Chief Justice McLachlin spoke. The papers at the Toronto conference included contributions from different parts of Africa which brought home the role played by customary law in the different jurisdictions.
A High Court judge from Nigeria explained that his country is a secular state characterised by religious pluralisms. There is the law embodied by the Nigerian Constitution, and then there is customary law. Islamic law is now administered in the courts of eleven states in Northern Nigeria, but the Nigerian Constitution categorises it as customary law and not as an independent source of law. In Nigeria a court may declare a custom repugnant to natural justice, equity and good conscience, or inconsistent with public policy. This is how the Nigerian Supreme Court struck down an Ibo custom that allows a woman to be married to a deceased man.
In Nigeria the role of the judiciary has been described by another Nigerian judge in these terms:
“The judiciary has always been in a position to concretise the divergences in cultures and customs which have existed among the various ethnic and/or religious groups within the country. In appropriate cases the courts could by skilful and intelligent interpretation and application blend differing rules of customary law together, always with a view to a unity of goals and purpose.
Thus the apparent divergences can be made responsive to the challenges of forging a sense of national consciousness and building a national identity despite and even within such divergences.”
This provides a challenge for a judge, particularly when people’s views about what is appropriate are sharply polarised. Similar issues arise in Uganda, as the author of a paper on Ugandan family law which was given at Toronto described. She said that the laws governing family life in Uganda today legitimise the authority of male members of a family over the lives of female members. For example, a wife cannot obtain a domicile of choice that is different from her husband’s until after his death. In matters of inheritance daughters are prejudiced when compared with sons. A man can divorce his wife on the grounds of her adultery, but his wife has to rely on another matrimonial offence in addition to adultery before she can obtain a divorce.
Article 21 of the Constitution of Uganda, however, says that:
“All persons are equal before and under the law in all spheres of political economic social and cultural life and in every other respect and shall enjoy equal protection of the law.”
The Constitution also contains a standard non-discrimination provision in relation to race, sex and colour and so on. The paper suggested that in these circumstances:
“The role of a judicial officer is to ensure proper implementation of law. When faced with laws that are discriminatory and which perpetuate inequality, the judicial officer should scrutinise them more deeply with the view of bringing them into conformity with the Constitution.”
The judicial dilemma is highlighted, however, by the fact that over the last ten years reforming legislation has been stalled. Laws to criminalize rape within marriage, or to provide equity within polygamous marriages are unable to reach the statute book. The judge therefore has the language of the Constitution as a tool for achieving greater equality than the legislature is willing to provide in express terms.
In the same way a Ugandan magistrate described in Toronto how the clash between the new legal regime introduced with the arrival of colonialism and the traditional beliefs within Ugandan tribes remains very strong in many parts of Uganda today. The protection of women by the criminal courts is not helped by the way in which most African women have been raised. They know they are not supposed to utter certain words in public, especially those that are seen to be of an obscene nature, and this means that if they are the complainants in a case of sexual assault it is very difficult for a conventional court to elicit from them precise information about what actually happened.
There were similar contributions at Toronto from Ghana and Malawi. These are two other countries where family relationships were regulated by customary law before the British came, and where customary law is still powerful. In Ghana, like Nigeria, the courts have an express power to override customs that are repugnant to national justice, equity and good conscience. A Ghanaian judge described how since independence the courts have tried to be abreast of the times by making declarations intended to mitigate the harsher features of customary law. A good example of this was a judgment of the new Chief Justice of Ghana 14 years ago. To reduce the hardship suffered by many widows who could not prove that they had been married with all the necessary customary rites and ceremonies, she held that a form of valid customary marriage could be proved if it was shown that the parties had lived together as man and wife to the knowledge of their families and the whole world.
As in Uganda, the Constitution of Ghana contains provisions protective of fundamental human rights and individual dignity. Article 1(2) of the Constitution provides that it is to be the Supreme Law of Ghana and that any other law found to be inconsistent with any provision of it shall, to the extent of the inconsistency, be void. This, too, provides the judicial officer with the tools to override elements of customary law that are inconsistent with the basic human rights norms identified by the Constitution.
A Malawian judge told how a defendant husband had been acquitted of murdering his wife when he was upset when she changed her mind and refused him intercourse after a seven month gap. This was held to be sufficient to cause an ordinary person of the accused person’s community to lose his self-control. In Malawi express provisions of the Constitution have brought about important changes in customary family law. Young people over the age of 18 no longer need their parents’ consent before they can lawfully marry, and the minimum age at which girls may lawfully consent to intercourse is now 15, not 12.
What I have been suggesting so far has been that in our different countries the unequal treatment of women has been a feature ingrained in societal consciousness for centuries, and that it remains so strong in many parts of the Commonwealth today because it has such deep roots either in religion or in customary law. I have also suggested that the judicial officer does not always have to wait for a change in statute law before he or she can give effect to a woman’s right to equality. Although practices have to be pretty bad before a judge can hold that they are contrary to national justice, equity and good conscience, or that they are inconsistent with basic constitutional norms, these powers do exist and have been used to good effect from time to time.
Where does our common membership of the Commonwealth fit into all this? The Commonwealth has an action plan for gender equality. In this plan the Commonwealth asserts its commitment to promoting a rights-based approach in every area of its work. The plan points out that on issues related to gender equality and human rights, the main instruments by which Commonwealth member states are obliged to guarantee equality of rights between women and men are not only the various national constitutions. They also include international human rights instruments like the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The plan describes how this framework is reinforced by provisions in national statutes, as well as by regional treaties and instruments and other international or regional human rights instruments and monitoring bodies, which embed and extend these rights. Of particular relevance in this context are the International Covenant on Economic, Social and Cultural Rights; the 2003 protocol to the African Charter on Human and Peoples’ Rights which deals with the Rights of Women in Africa; the Convention on the Rights of the Child; and the four gender-related Conventions of the International Labour Organisation, on equal remuneration, on freedom from discrimination at work, on workers with family responsibilities and on maternity protection.
Although 50 Commonwealth countries have ratified CEDAW and 15 have ratified its Optional Protocol, the plan says that there are still significant gaps in implementation, and that many countries have ratified them with reservations. More importantly, the plan suggests that the lack of a gender perspective in the administration of the law often stymies the gains that are made in international and regional treaties and conventions. Even where sound legislation exists, the application and interpretation of these laws are often inadequate. Eight different reasons are given for this: absence of political will; jurisdictional difficulties; lack of awareness at all levels in the public service and justice systems; lack of enforcement capacity; traditional or customary systems of law that discriminate against women; women’s inadequate awareness or legal illiteracy concerning their rights and how they may obtain recourse to justice; limited human and financial resources for monitoring and enforcement of women’s rights at national, local and community levels; and inadequate evidence-based data collection.
Of the different forms of discrimination and disadvantage experienced by girls and women, the plan mentions the way in which girls may be denied the right to an education; how women’s work is often accorded lower value, status and remuneration; how women and girls are more vulnerable to exploitation; and how women experience particular discrimination as they age. The plan proclaims the importance of promoting active dialogue and engagement, not only among members of the justice system, but also among members of religious, cultural, traditional and civil institutions and communities, to address women’s human rights within all the different cultures that make up a country. Harmful practices which violate the rights of women and girls such as female genital mutilation, early marriage, and widow inheritance should be eliminated as a matter of urgency. Where multiple legal systems and practices exist – as when constitutional, religious and customary systems and practices co-exist side by side – full consideration should be given to the human rights of women and men, and girls and boys. Where violations of these rights occur, effective recourse to justice and effective remedial measures need to be established.
The plan goes on to speak of gender-based violence, trafficking in women and girls, and the marginalisation of indigenous peoples (particularly women) in some countries. It ends this section by saying that respect for land and property rights is fundamental to the realisation of human rights and gender equality. De facto discrimination persists with regard to ownership of land and property and inheritance rights in spite of the constitutional and legal guarantees in many Commonwealth countries which prohibit such discrimination.
There follows a long list of things that need to be done throughout the Commonwealth to achieve greater equality. The list starts with legislative and constitutional reform and then refers to what it calls “judicial capacity building”. It goes on to say that the mechanisms for implementing gender equality commitments should be strengthened and more effective ways worked out for monitoring future progress.
I am always feel a bit lost when reading high level plans, because there is such a gulf between the planners in their offices and at their international meetings and those of us who have to put their plans into effect. This is why conferences like this, which focus on what the judicial officer should do to ensure equality at ground floor level, are so important, and I wish there were more of them.
The plan talked about judicial capacity building. This means that in each of our countries we should have judicial officers who are capable of doing all they can within the law to advance the cause of equality. It means a judiciary to which women have access, not through positive discrimination, but on merit. It means a judiciary that appears scrupulously fair when determining cases involving women and children. This does not mean weighting the law in their favour, but it does involve judges and magistrates making sure that they understand all the particular needs and problems of the women before the court, and that they are not imposing male-centred solutions which do not take into account women’s special needs as people who are responsible for the care of others.
It means alertness to relevant provisions of equality law, and of the provisions of the national constitution or the Human Rights Act or the local Charter rights, or whatever, which make it possible for the law to be administered more evenly. And it means training arrangements for judges and magistrates that bring home the messages of the importance of equal treatment before the law again and again.
I end, as I began, with Dame Lois Browne-Evans. When she died two months ago, the Bermudan Bar Association said of her that she was a fierce defender of human rights, in the very best traditions of the Bar. Her work for the rights of oppressed people and her involvement in the struggle for universal adult suffrage and against institutional racism placed her at the forefront of human rights champions. She fought against all forms of discrimination, from that based on race to sexual orientation, and was a champion of equal rights all of her professional life. This is what this conference is all about.