Gender Justice and the Legal Profession
Republic of Fiji
Gender Justice and the Legal Profession
Nazhat Shameem Khan
Permanent Representative to the United Nations in Geneva
Ambassador to Switzerland
Keynote Address at the Fiji Women Lawyers’ Association
Suva, 21st February 2018
“Gender inequality is the most serious and pervasive form of discrimination in the world. While this affects everyone, it is women and girls who face the most discrimination as a result of gender inequality. This is a key driver of poverty and a fundamental denial of women's rights.
Women and girls form the majority of those living in poverty. They have fewer resources, less power and less influence in decision making when compared to men. They are exposed to various forms of violence and exploitation and experience further inequality because of their ethnicity, age, race, class, marital status, sexual orientation and (dis)ability.
We believe that transforming gender and power relations, and the structures, norms and values that underpin them, is critical to ending poverty and challenging inequality. We believe that women taking control and taking collective action are the most important driver of sustained improvements in women's rights, and are a powerful force to end poverty not only for women and girls, but for others too.”
In 1983, when I was called to the Bar, there were a handful of women lawyers in Fiji. I was the first woman lawyer in the office of the DPP. There were so few of us, that the legal profession had a clear image of being a male preserve, a profession where the role of women lawyers could be limited to divorce and custody, marketing the law firm to attract more clients, and making tea. I was told on my first day in office that I was an experiment and that an office meeting had been held to discuss whether the Office of the DPP was ready for women. In court I experienced hostility from police officers, and the judiciary. The world of hostility directed towards women, needs deconstruction. How much of it is discomfort that a woman is challenging all the expected norms, simply by being in the room, speaking, and even (God forbid) disagreeing with a man in authority? How much does the hostility showcase the intersection of discrimination, the combination of cultural discrimination, gender discrimination, and religious prejudice? We often experience the greatest hostility from men of our own communities and religious groups. This is because we challenge the social and cultural norms they have been taught from childhood. That women are subordinate and must not speak, must not challenge and must not upset the norms of a century? If our mere presence in the courtroom is offensive to these norms, then, as I learnt very quickly, it doesn’t matter what you say. You will always offend and will always face hostility. We should recognize however the pervasive effects of the merging of cultural stereotypes and gender stereotypes. And we should learn to acknowledge that hostility to women at the Bar is often not a reflection of what we say or do, it is a reflection of fear of the loss of the way things are expected to be in our cultures, our homes and in our relationships. Hostility is usually about the fear of a loss of patriarchal power. Thus the regularity of gender based hostility from men within the same culture as the woman who dares to challenge that power.
Today I want to focus on the relationship between power and the courts, the way in which women in the courts and legal profession may experience the effects of gender stereotyping, and ways in which we can provide better substantive justice for women in the justice system. I will speak of women who are victims of sexual and gender based violence, a classic example of a historical disadvantage and a continuous challenge to gender justice, of women who are offenders in the court system, and of women who are lawyers and judges. In the course of this address you will forgive me if I tell a lot of stories. Fiji is in the midst of rolling out the COP 23 Talanoa Dialogue and we know how powerful a message is, when told in the form of a story. I make no apologies for telling the stories of my own experiences. I think that may be why you invited me here today.
But first, what is gender justice?
Gender Justice and the Woman Offender
Gender justice is looking at justice from the lens of the experiences and lives of women. Gender justice is about recognizing that access to justice is determined not only by the written law, but by the relationship between gender, financial independence, access to the legal profession and to legal aid, legal literacy, and by the gender competence of the Bench. And I begin with a story. As a new prosecutor in 1984, I learnt much from sitting at the back of the courtroom observing the prosecution skills of the police prosecutors. On a Monday morning a woman sex worker was brought into the court. She was charged with the old Penal Code offence of soliciting. She pleaded guilty but in mitigation she said that the only reason she had been charged was because she had refused to provide free sexual services to the arresting officer. She said that she was the only sex worker of Indian origin in Cumming Street, and was tired of the harassment of police officers of Indian origin. The magistrate made no comment and proceeded to sentence. However, the arresting officer was in court and it was clear from his demeanor that she was speaking the truth. In that one incident, I saw the intersection of discrimination on the grounds of culture and gender in the decision to prosecute. And, because the decision to prosecute is made away from the scrutiny of the courts, the magistrate really was unable to provide a remedy. The sex worker went to prison, because she did not deny committing an offence, but in that short incident I learnt of the limitations of the court system in identifying gender and cultural discrimination, and how important it is that power imbalances in society should be taken into account to provide an equal justice in court. I also learnt that if we are to provide equal justice, we would need to critically evaluate structures, institutions, and policies from a gender lens.
Women who are offenders are small in numbers in the court system and there are several criminological studies examining why that might be so. One theory is that women are socialized to conform and that they are less likely to break into houses or commit violent robberies. However, these theories do not always examine why women are increasingly becoming involved in the drugs trade, in money laundering offences, in infanticide and abortion, and in homicide. I believe that causative theories are unhelpful because in setting out to explain women’s behavior we fall into the trap of stereotyping women and assuming that their lives and characteristics are the same. They are not. Thank goodness for the fact that there is no such thing as a typical woman! However, what is a concern is when offences, defenses, sentencing remarks, and appeal judgments reflect stereotypes about women, which entrench existing inequalities, define women in terms of their biology, and further perpetuate those stereotypes. Women who are offenders had at their disposal in the past the ability to rely on their hormones to excuse themselves. The offence of infanticide is still defined in terms of the biological effect of childbirth when many psychologists have explained the offence of infanticide not by biology, but by inadequate social and financial support at the time of childbirth. Explaining women’s conduct in terms of their biology is a trap. It suggests that women are irrational, subject to their hormones and therefore incapable of holding high office when objectivity is required.
Gender Justice and Women Victims
The justice system has similarly stereotyped women victims.
Thus the “bad wife” defence and mitigation in domestic violence cases distracts from the real issue before the court which is whether there was violence, and if so whether there were injuries which must be reflected in the sentence, and begins to explore instead what society expects from women. If a “good” woman is one who stays at home and cooks dinner, then there isn’t a single good woman at the Bar table. But in exploring this, and allowing the defence to affect the sentence, the justice system tilts in favor of the perpetrator thereby aggravating institutional inequalities.
The law has discriminated against women on a number of fronts specifically in the case of gender based violence. The old law of corroboration which was eventually struck down by the Fiji Court of Appeal on the ground that it constituted gender discrimination, and the law of evidence on recent complaint which assumes that all women will raise a hue and cry after being sexually assaulted, are good examples. Many prosecutors struggled to prove consent in rape cases where the victim did not struggle or resist because of the exercise of patriarchal and family power. This was not, prior to the Crimes Act, defined adequately by either legislation or common law. And of course the debate on whether rape is an offence of specific or basic intent has taken up a lot of judicial time. Why does it matter? It matters because if it is an offence of specific intent then intoxication is a possible defence to rape. In deciding these issues, and in determining them, are our judges gender competent?
With the overwhelming numbers of cases of sexual and gender based violence before Fiji’s courts, the gender competence of our judiciary becomes of paramount importance. Our judges must not express, entrench or use gender stereotypes in the determination of cases. Of course judges have been socialized in the same way as other members of society, and are subject to the same biases. There are judges who no doubt believe that fundamentally all women are embodiments of Jezebel waiting to entrap and manipulate men. Or that they are weak, irrational and hormonal victims with no real control over their lives. However identifying these stereotypes and guarding against allowing them to influence the judicial decision, is an integral part of judicial gender training. I am happy to say that Fiji’s Chief Justice is committed to compulsory gender training for his judges and magistrates. I come from Geneva to facilitate these workshops. They are rewarding and of course, continuous work in progress. However, it is worth noting that the provisions in our Constitution for Constitutional Redress, are a powerful mechanism for ensuring the conformity of our laws with gender equality. In practice, what gender equality is in the courts, will continue to be determined by the judiciary. Thus the imperative for ensuring gender objectivity through continuous judicial training.
Gender Justice and Women Lawyers and Judges
That brings me to the role of the woman lawyer. And of course the women who are members of our judiciary. I pass over the barriers that many woman have had to overcome to enter law school. You are all aware that 100 years ago women were not permitted to study law. Now, looking at the law schools in Fiji, there are times that the numbers of women graduates surpass the numbers of men. This casts our education system in an excellent light. Clearly it does not discriminate in admission, examination processes and grading criteria. However, the test of substantive gender justice is not the number of junior lawyers who are graduating and are in the work force, but what work they do, how they are able to work in an equal environment without constraints caused by unfair maternity conditions, work hours which are not family friendly and sexual harassment in the work place, and the number who survive to become partners, and judges. That picture is not so encouraging. When I was 22 I was told that in 20 years’ time, there would be women in leadership roles in the legal system. I look around me now, and I do not see such leadership positions for many woman. And, for those of us who are holding leadership positions, are we able to work in a climate of respect and equality? Are we subjected to the discomfort of our subordinates and colleagues who are hostile to the idea of a woman leading on anything? We now have for the first time, a woman President of the Law Society, a matter of great pride for Fiji. However, is she able to truly implement policies she thinks are important, or is she too working in a male environment which is resistant to change and gender equality? I have not asked her this but it is an important question.
The most significant barrier to equality in the legal profession is the hyper masculinity of the profession itself. Attitudes to woman lawyers have not changed dramatically and woman lawyers still experience hostility from colleagues and subordinates. We are not alone in this. Both Australia and New Zealand report sex aggregated data on the legal profession which is not encouraging. The New Zealand Human Rights Commission reports;
“At least 15 years after the free flow of women to the bar began, few are appearing in appellate matters or in big commercial cases, although the reasons for this are unclear.”
In 2006, the Australian Women Lawyers conducted a gender appearance survey which revealed that at the Victorian Bar women are in the minority in court appearances with numbers declining as the courts become higher in status.
So we are not alone.
In the same study women lawyers identified the barriers to their advancement. Work hours, work conditions, lack of professional support and salary. Many law firms and Government offices operate according to the hours of a man who has an obliging wife at home bringing up the children, and who can work throughout the weekend, until midnight daily, and without leave. That is no longer our legal profession. In addition to the fact that many lawyers are women, the work hours of law firms are not conducive for a man who wants to spend time with his children. If we are to say to the people of Fiji, that men and women equally are responsible for the family and in the same way, if that is how we are to dismantle the limiting and discriminatory stereotypes of the social behavior of men and women, then employers must adapt the work place to be family friendly. Regrettably, when a family can no longer cope with the demands of family and work, it is usually the woman who leaves and stays at home. I am an ambassador and supervise staff myself in Geneva. I see no reason why my staff should be in the office after 5pm or in the weekends. They all have mobile phones and laptops and can contacted at any time for urgent work. Further, the Mission is family friendly and is open to children coming to the office when they need to be with a parent.
Let us examine work conditions.
Surveys have shown that women state lack of professional support as a major barrier to advancement. When trying to do what is right and ethical, why should our voices be the only voices in the room? When needing guidance and support, is there an adequate mentoring system in the law firm which does not throw the woman lawyer to the wolves when she needs help? Is there an effective sexual harassment policy in place which articulates not only the remedies but also the definition of what sexual harassment is? The international law on sexual harassment is not always consistent with national laws. Many national laws are conservative about sexual harassment and define it in narrow terms. We are fortunate in Fiji, because we not only have a legislative definition in the Employment Relations Act 2006, but we have a comprehensive definition in our National Gender Policy which was adopted by Cabinet in 2014. The laws of Fiji enact both the quid pro quo harassment and also the hostile work environment. When you receive a hostile barrage of emails, when your superior or colleagues impose a bullying environment on you because of your gender, and when there is a continuing course of bullying conduct designed to demean and degrade you as a woman, you are being subjected to sexual harassment. Sexual harassment is a form of discrimination against women, and is a barrier to the advancement of woman. When I was subjected to such harassment as a prosecutor I vowed that I would not let it happen to any woman on my watch. I have done my best not only to ensure that employers know what it is, but to protect women from it in the work places I find myself in. But it is not easy. Many men and woman do not know what sexual harassment is. They think it is about sex. They do not realise that it is about the exercise of male power over women and marginal groups in the work place. They do not realise that any demeaning and insulting conduct towards a woman in their power, is capable of constituting sexual harassment even when sex is not demanded. We still have a long way to go in Fiji, to have these difficult but necessary conversations with employers. However, what we can all demand, as a right under the law, is that every work place has a sexual harassment policy which is implemented effectively when a complaint is made.
I heard an interview with actor Shah Rukh Khan the other day. He was asked how men could be sure that they were not harassing women, and what could be a test for their conduct. He said, I ask myself, am I acting in a way which affirms the dignity of women in everything that I do? If I stick to this simple rule, I know I will never be guilty of harassment. A good test perhaps. For lawyers I would also recommend a consideration of the Employment Relations Act and the National Gender Policy of Fiji. You will find the test and the Policy at paragraph 4.28 at http://www.fiji.gov.fj/getattachment/db294b55-f2ca-4d44-bc81-f832e73cab6c/NATIONAL-GENDER-POLICY-AWARENESS.aspx.
That leads me to the question of the role of women judges. I have a lot of stories about my life as a woman judge. Some of them in hindsight are now quite funny because of the clear gender basis for the treatment of the only and first woman judge at that time. I will not. We do not have time. But the Hon. Chief Justice knows them well. He was always a bemused but supportive companion on my journey as the first woman everywhere, and often a horrified witness. However, what many women judges speak of in other jurisdictions, and what I found, is the lack of peer support from other women judges when there are none.
Then there is the other problem. The woman colleague who thinks she is a man and actually cooperates in perpetuating gender power injustices in the work place. I have always said that it is not only men who need to be gender competent. How many of us forget how hard it was to get where we are now, and spend all our time creating barriers for other woman? Far too many of us, as women judges in other jurisdictions have found. An effective strategy that some men have devised is to pit two women together, so that it cannot be suggested that this is a case of sexual harassment. Yet one of them, is expected to further patriarchal power and authority.
We should also remember that many women judges have experienced gender based hostility from the Bar. Applications for disqualification from defence lawyers in rape cases, on the ground that a woman judge is incapable of objectivity in cases of sexual and gender based violence have been made in Fiji. The stereotype on which this application is made, is of course that women are irrational and incapable of objectivity. Thus making them unsuitable for appointment to the Bench.
We still have too few women in the judiciary. Studies show that many in the United Kingdom do not wish to apply because of family unfriendly work conditions. Others in other jurisdictions are subjected to sexist recruitment policies and unconscious bias. There have been major reforms to the appointing processes in countries like the United Kingdom and India, to try to open the process up to more women. For the first time, we in Fiji, have had women in our Judicial Services Commission. Our Judicial Code of Ethical Conduct places the judicial officer in the centre of efforts towards ensuring equality before the law. And our judicial officers undergo compulsory gender training which then protects against a hostile work environment for women judges.
However all of this is work in progress. The examples I have spoken of, show how a justice system is vulnerable to a lack of equality not only in the way litigants are treated, but also in the way women lawyers and judges do their work. The judiciary and the legal profession must not just administer and deliver an equal justice only for others. They must be equal in themselves.
This address is of course also about the role of education. I see the only effective way of delivering gender justice, as providing gender training for all persons in the justice system. The judges, the magistrates, the prosecutors, the police officers, the Legal Aid Commission and the private Bar. Of course such training can be difficult and painful because it requires us to examine ourselves and our own thoughts and beliefs. But it is the only way to transform our society. The suffragettes who fought for votes for women, knew that the fight was much bigger than votes. They started a revolution aimed at transforming our societies. And we women lawyers must make the same commitment. We must be strong. We must be good lawyers ourselves. We must support each other. And we must be determined to change the world we live in, so that the courts and the legal system deliver an equal justice. We can do it. But we can only do it together. And we should never forget the attempts made to disempower us in this journey we have all made to success. Success must never be achieved on a foundation of the degraded corpses of others. I finish with this message from Wangari Maathai;
“A tree has roots in the soil yet reaches to the sky. It tells us that in order to aspire we need to be grounded and that no matter how high we go it is from our roots that we draw sustenance. It is a reminder to all of us who have had success that we cannot forget where we came from. It signifies that no matter how powerful we become in government or how many awards we receive, our power and strength and our ability to reach our goals depend on the people, those whose work remain unseen, who are the soil out of which we grow, the shoulders on which we stand.”
Nazhat Shameem Khan
PR to the UNOG
Suva, February 21st 2018