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CMJA REGIONAL AND GENDER CONFERENCE

"Equality and the Courts:
The Commonwealth Expereince"

19-23 April 2007
Bermuda

This Conference attracted over 180 delegates from 32 jurisdictions of the Commonwealth and beyond.

The Conference was opended by the Chief Justice of Bermuda, The Hon. Justice Richard Ground. Keynote Speakers included

Justice Sanji Monageng, High Court Judge of the Gambia and Commissioner of the Human Rights Commission on Human and Peoples' Rights outlined the problems faced by those fighting against gender violence in Africa. "It's helped to show that what we're doing is not in vain. While I appreciate that we have a lot of work to do, seeing what other countries have achieved I know that we are not fighting a losing battle," she explained.

Judge Leona Theron of South Africa provided inspiration by outlining the challenges she had personally faced as a young black female lawyer then judge in a South Africa that still discriminates against women in all sectors of society.

A number of other presentations were given on Youth Justice, The role of expert witnesses and the legal profession, the courts, human rights and economic development, the role of lay justices in ensuring equality.

The CMJA is extremely grateful to the Bermuda Government and the Bermuda Judiciary for their support and assistance in making the conference a great success.

Although it as hoped that a blog of the conference proceedings would be available during the Conference, due to technical difficulties, this was unavailable. Therefore the blog prepared by one of the delegates, David Jenkins can be found below:

"Notes and Jottings – A personal view of the conference.

These notes will also form an internet blog, where your own reactions to the conference can be freely posted.

Friday 17 August

The days leading up to any conference inevitably bring a flurry of administrative activity and there is no exception here. With over 150 delegates expected, many of whom are coming with their partners, there are many arrangements to check. Today for some delegates the weather to the south of Bermuda is causing concern, with Hurricane Dean threatening to affect Jamaica over the weekend. There are a few cancellations in anticipation of this.

The programme has been finalised, and on reading it, one realises just how vast is the subject under discussion in the coming week. How will the Chief Justice of Bermuda, The Hon Mr Richard Ground approach the subject of equality in his opening address? The topics to follow are, seemingly, practical, as in the keynote address by Sir Henry Brooke, ‘Setting the scene:….some issues for the judicial officer’. Will this be descriptive, contrasting issues for court officers in the various countries represented here; or will it be reflective, jurisprudential in tone?

A brisk presentation in the afternoon is promised by Dr Karen Brewer. Anything with the word ‘toolkit’ in the title these days, suggests solutions to frequently encountered problems, and the gender and human rights toolkit surely must be a very full box indeed! A nice feature of this conference is the focused panel discussion. The toolkit is to be discussed by four practitioners of note from the Caribbean and Bermuda. A focused discussion can be very rewarding for delegates, for the panellists have had time to think about the issues they have been asked to discuss and with some luck and good chairmanship the ideas should flow thick and fast. Delegates could get a great deal from this format.

As the afternoon wears on in the first day, a real choice appears. The focused discussion is applied in parallel sessions to the role in the equality debate of lay justices in the courts; or, quite different to the role of courts dealing with commercial issues. What a contrast! On the one hand one can think of these issues in relation to the individual; on the other in relation to institutions. Micro and Macro issues side by side. This is why the topics in this conference are so important – they impact at all levels. Panellists in these sessions are drawn from wide areas of the Commonwealth, from developed and economically emerging countries. This should prove fascinating as we see just how the notion of equality is subject to interpretation in vastly different economic climates.

In the evening Bermuda’s Government plays host to the conference, as the Premier, Dr Ewart Brown provides a reception for the delegates. In his foreward to the Conference programme Dr Ewart Brown mentions how Bermuda is undergoing major reforms to its judicial system, following the recommendations of a comprehensive review undertaken in 2004. It is clearly timely that this conference is taking place here at this time, and it will be interesting to see how the ministerial presence at this conference stimulates the changes taking place here.

Looking forward to the second day, Her Honour Justice Sanji surely has her work cut out with the bold title, ‘Human Rights in the wider Commonwealth’ This conference is represented by 33 countries, and the variety of experiences on offer will be wide. How will she approach this complex topic? The morning continues with two very different group discussions, with the fascinating prospect of discussion about the vexed questions in family law, where violence is involved, on the one hand; or, alternatively, a discussion of that complex relationship between the legal profession and expert witnesses. As with the word ‘equality’, there are no absolutes when defining the term ‘expert’ – or are there?

In the afternoon, a fascinating pair of presentations is on offer, and it is a relief not to have to choose between them. The equality issue is complex enough when applied to gender, but it may be more poignant still when applied to children. That poignancy moves off the scale for most of us, when applied to areas of conflict. With two contributors from the UN discussing these topics, this promises to be a rich session indeed.

Finally, in a major day, the issue of gender comes to the fore, as it is discussed in a Commonwealth perspective. This full session will need dynamic chairing and equally energetic contributions from the panellists, but it promises to be a session which will reveal rich diversity across the Commonwealth.

On the final day, the keynote address promises to be noteworthy with the Chairmanship of the Chief Justice of Bermuda introducing a Judge of the High Court in South Africa, Her Hon Leona Theron. Here we shall here of the issues of equality as applied in a theatre of continuing and dramatic social change. How are the courts responding to the special challenges of this environment?

The final presentation of the conference focuses on youth. Not mentioned so far, this is a welcome and imaginative session, where the issues of equality as applied to the young in our societies are so closely linked to the respect for law, the credibility of legal institutions as perceived by generations approaching adulthood. It will be interesting to see how His Worship Michael Frederiksen from Canada will approach this topic, and how experiences described in Canada and in Scotland will be perceived by the hugely different countries represented at this conference.

The final panel discussion session, to be chaired by the Rt Hon Lord Hope of Craighead focuses again on the issue of human rights as applied to different levels of economic development. It will be fascinating to see this panel grappling with the subject, and with input from Cameroon, Trinidad and Tobago, Mozambique, Malt, South Africa and America, this could be gripping stuff.

The closing address seems a long way on, as we contemplate the conference, but if all these sessions fulfil their promise, the task of drawing it all together will not be easy. But this only amplifies the fact that this is a very important event being held in Bermuda this week, and one which could have far reaching implications for legal activity in many regions of the world. It will be good to report how the events unfold in the next days, and how much the promise of what is to come is realised.

Sunday 19 August

The conference area at the Fairmont Southampton is now receiving delegates who are arriving throughout the day. There is concern at the progress of Hurricane Dean, which seems to be heading directly for Jamaica. There is pleasure and relief when organisers hear that the Jamaican delegates plan to leave for Bermuda on Sunday evening, ahead of the hurricane.

In the evening the welcome reception at the hotel brings all delegates as a body into view. Immediately, it is clear just how many countries and cultures are represented here. As host, the Hon Mr Richard Ground welcomes the conference and is thanked on behalf of CMJA and the delegates by Sir Henry Brooke. The energy in the conference is apparent as discussion around the room creates a continuous sound, and conference organiser the Hon Mrs Justice Wade Miller extends the function.

Monday 20 August

At 9.30 the huge Poinciana room is full of delegates and accompanying partners, and Justice Wade Miller brings proceedings to order. There follows a visual and oral spectacle as the flags of every country represented here are brought in Bermudians, from young children to police cadets and young professionals. There is fine musical accompaniment in piano and voice. Thirty three countries, and there is a special note of appreciation when the Jamaican flag comes to the front, as all the delegates have managed to get here, despite the weather. There is relief that the hurricane does not appear to have done its worst. In a moving opening address, the Regional Vice President sets the tone of the conference, emphasising the importance and weight of the themes to be covered, Equality, Gender, Human Rights and Justice. She makes it clear that this is an important event, where some of the finest legal minds from Commonwealth will have the opportunity to examine these themes with ‘an intense microscope’, subjecting them to ‘rigorous and exacting analyses. This audience is an audience of leaders with the passion to effect necessary change in legal jurisdictions. All this is skilfully blended with rather seductive descriptions of this beautiful island location, and so delegates are invited to enjoy, but to work hard too!

The seriousness of the conference themes are underlined by those Justice Wade Miller brings in support of her remarks. Aristotle and Abraham Lincoln are two of these, with quotes on the centrality of Justice in the ordering of human affairs and the proposition that all men are created equal, but in contemporary terms the towering figure for this conference is one of Bermuda’s own giants, Dame Lois Browne-Evans. As lawyer and politician, Dame Lois embodied so many of the themes on display here, and for Justice Wade Miller, ‘during this week, Dame Lois is the hidden delegate’.

The speech of welcome finished Justice Wade Miller hands over to the Chair of the Gender Section of CMJA, Mrs Clover Thompson-Gordon. With a powerful and often amusing style, Mrs Thompson-Gordon rallies the delegates to prayer with the Bishop of Bermuda, the Rt Reverend Ewin Rattery, and introduces the first speaker and two distinguished commentators to the podium.

In the first keynote paper we have the Hon Mr Richard Ground, Chief Justice of Bermuda. In a powerful address, Mr Ground traces some of the complexities inherent in the notion of equality in modern legal jurisdictions. The overall impression is that terms like equality and discrimination are rooted in a social context of cultural norm and prejudice. Mr Ground talks of the lawyer’s love of procedure – an alley to dart down when the jurisprudence gets tough perhaps? He cites a local issue, where cases can fall because procedure demands the return of overseas victims to court, when perpetrators are known and witnessed locally. The prohibition of hearsay evidence, he suggests, can sometimes also be a source of discrimination, despite the intention that it is meant to protect. Law he says, is not a game, it is a search for the truth of a situation, and it is important to keep that at the front of one’s mind and to make procedure the servant rather than the master of legal activity.

The Chief Justice does not flinch from addressing a thorny subject for lawyers by tacitly acknowledging that issues such as equality and discrimination have to be understood not only legally, but also politically. How do the courts deal with matters of discrimination, when the issues are controversial in the political arena? In Bermuda in 2007, the issue of homosexuality is arousing controversy; elsewhere in the countries represented there will be other topics. All these place a major responsibility on the courts and the administration of justice, and it is for judicial officers to adopt a dynamic and intelligent response to these challenges. This is a thought provoking paper by a senior legal figure focusing on contemporary and urgent questions.

Comments on the Chief Justice’s presentation come from Senior Bermudian Government figures, The Hon Paula Cox, Deputy Premier and Minister of Finance and the Hon Mr Philip Perinchief, Attorney General and Minister of Justice. It becomes clear that change is in the air in Bermuda, there is an appetite for genuine change and improvement in the system of justice. Ms Cox, using a wonderful poem from France, speaks with a quiet yet fierce deep seated passion about equality, and urges delegates to think freshly, and not to be afraid to challenge any contemporary thinking, but to go the edge in order to see what is possible. In similar vein, Mr Perinchief sets out the importance of creating legal mechanisms which accord the highest importance to equality and respect at all stages of the process.

A fine opening session is brought to a close by Mrs Thompson-Gordon.

The second keynote address is given by Sir Henry Brooke, Executive Vice-President of CMJA, who is introduced by Justice Norma Wade-Miller. Sir Henry speaks on:

Setting the scene: Equality and the courts: Some issues for the Judiciary

Sir Henry expresses the view that in dealing with the issue of equality there are many voices to take into consideration. Voices concerned with race, gender and disability, for example. It is not enough, he says to link the issue of equality with one of these only.

Inequality on grounds of race may by now be fairly clear; inequality on grounds of gender is much more complicated; inequality on grounds of disability may be new ground for some of us.

Sir Henry focuses also on some of the issues which constrain a purely legal approach to the issue of equality. Societies are formed by cultural, including religious values, and issues of equality will be affected by these. He speaks of the very different religious exhortations, which have to be modified by courageous independent action from judicial officers.

To what extent is there a Commonwealth perspective on all of this? There are 33 countries represented here, all of whom are party to United Nations commitment to human rights. How do individual cultural considerations stand up in relation to international declarations on human rights?

Sir Henry demonstrates clearly that the issue of equality is not just a personal or individual issue – it affects whole societies. People trafficking is an issue which is cross gender, echoing earlier times when slavery was a robust trade. Does our conference issue reflect much wider social issues than the individual cases that come before the courts, and if so, how can delegates as practitioners take account of this?

‘Judicial capacity building’ was an eloquent phrase used by Sir Henry, but in a typically wry aside he pointed out the gulf existing between planners and practitioners. Talking about something is different from acting upon something. Delegates can be expected to have pronounced views on all of this!

How can delegates, as legal professionals, balance the issue of equality, with all this complexity, in day to day work in the courts? Should you even try? Sir Henry suggested that, in the end, the issue has to have a political drive. Citing Dame Lois Browne as a fine example of someone who went beyond the legal structures of the courtroom into the political arena, Sir Henry also left us here in this conference with a very old problem. How does judicial and political work mix? As with the issue of equality, the answer to this question is much more complicated than might first appear.

Another strong contribution for this extraordinary first day.

In the afternoon, the first panel discussion on regional issues of equality sees the Hon Acting Chief Justice for the Eastern Caribbean, Brian Alleyne, chair a spirited discussion with colleagues from Barbados, Anguilla, Trinidad and Tobago and Bermuda. This plenary session sees delegates not slow in coming forward with comments and contributions, and the panel discussion format seems to be working well.

Late on in the afternoon, two breakout groups, respectively on the role of the lay justice and the role of the courts in economic development, and we shall try and obtain some reactions later in the conference to these working sessions.

The day has been noteworthy on all fronts, and now the ending promises to be a fitting climax. Buses have turned up to take all of us to Dockyard, and to the Commissioner’s house for a reception hosted by the Premier of Bermuda, the Honourable Dr Ewart F. Brown. The ride is spectacular enough, but the stage for the reception, a veranda high above the immediate surroundings, affords a stunning view of Bermuda’s skyline. The Premier is warm in his welcome, and makes fine judgement between noting the importance of the conference and, in his capacity as Minister for Tourism, in encouraging delegates to return soon for a little relaxation! Sir Henry Brooke, on behalf of CMJA thanks the Premier and there is a delicious moment when, in referring to the Premier as Prime Minister, the delighted retort comes back, ‘I did not know that gaining independence would be so easy’.

A great day, heralding a conference with superb promise "