Securing Equality for All in the Administration of Justice: Another Twist to Human Capital Development

This series of blogs over the next three (3) weeks will focus on  some fundamental underpinnings of Human Capital Development. It commences this week with the judicial factors,  to be followed by the religious and the parliamentary, respectively. This series is inspired by the work of the Pan Caribbean Partnership against HIV/AIDS in the Caribbean (PANCAP), under the umbrella of the Caribbean Community and its Justice for All (JFA) Roadmap: https://pancap.org/pancap-documents/pancap-justice-for-all-roadmap-revised-2018-12-11/. The JFA programme  engages a variety of stakeholders toward the  goal of reducing stigma and discrimination, that are major barriers to ending AIDS within the Sustainable Development Goal (SDG) #3,  "Good Health and Wellbeing" while advocating for achieving the Targets of SDG # 16, " Peace, Justice and Strong Institutions".


The Judicial Education Institute of Trinidad and Tobago (JEITT) together with the Faculty of Law, St Augustine; Institute of Gender and Development Studies (IGDS), UWI St Augustine; The UWI Rights Advocacy Project (URAP); and the Pan Caribbean Partnership against HIV/AIDS (PANCAP) must be congratulated for initiating  the Judicial Dialogue on Securing Equality for All in the Administration of Justice, in 2017.  The theme is also the title of a book edited by Janeille  Zorina Matthews, a multidisiplinary criminal justice scholar  and Joel Amoah, a researcher and activist on human rights and  legal pluralism. Contributions to this volume are by highly regarded lecturers, researchers, advocates, legal practitioners and the social scientists.  The initial dialogue has been converted into an Annual Judicial Conference which in May 2019, brought together approximately 120 Judges and magistrates from the  Caribbean in St Kitts/Nevis. In this case, the focus was on Project Equality which in essence,  demonstrates how the legal environment is important to human capital development.   It is a sensitization process for regional judges, judicial masters and magistrates updated by  evidence from socio-legal research with a view to:

• Examining the  legal concepts of equality and non-discrimination.
• Exploring how best to bridge the gap in trust and fairness that currently exist in the administration of Justice in the Caribbean.
• Identifying  the impediments in accessing justice commonly faced by groups at higher risk of discrimination, vulnerability and social exclusion in society.
• Recommending  steps and actions that judicial officers can take to improve access to justice and secure equality before the law for vulnerable groups.

Legal concepts of equality  and non-discrimination. These hinge on the principle that “all humans  are born equal in dignity and rights” (Article I of the Universal Declaration of Human Rights 1948).  Hon Justice Jamadar, a contributor to this volume and soon to be sworn in as Justice of the Caribbean Court of Justice (CCJ)  presents a unique interpretation of the meaning of “being” in the Declaration. It is interpreted to mean 'life itself' to include rivers, forests, oceans, flora, fauna and the earth itself. It is  the consequence of the larger vision that is truly a recognition of social, cultural, and environmental consciousness that leads spontaneously and responsibly to respect and regard equality for all in the broadest sense.  

Bridging the gap in trust and fairness. Research shows that equal treatment is reflected in the structures, systems and attitudes  in which individuals and communities engage. They are essential to peace and security. Hence Project Equality  focuses on the historically marginalized, alienated and vulnerable groups and communities in society. Among the reasons for this are three pertinent tendencies..  First,  the distrust of the state  relates to a deep rooted colonial past of policing whereby  'the policed' are treated as subjects rather than citizens. Second  the practice of punishing vulnerability is gradually being reviewed.  Examples are the dramatic reduction in criminalization of ganga use in Jamaica, the current discussions about criminalization of HIV transmission and the recent rulings that criminalization of consensual sex between adults is a violation of the Constitutions of Belize and Trinidad and Tobago.  Third, the privileging  of Christianity that may result in religious dogma  unconsciously influencing law making or may be disproportionately  influencing the court room. Several judicial decisions (Mc Farlane vs Relate 2010)  conclude that promoting the law for the protection of a position held purely on religious grounds cannot be justified.   The intent must be on ensuring that the needs of the most vulnerable are met and a resolve “to leave no one behind”.

Removing impediments to accessing justice.  A series of reforms in the administration of justice refer to the key tenet of the rule of law and procedural fairness.  They stress the principle that a model code of judicial conduct ensures that persons must be able "to get to the court room door";  must not be subject to undue impediments to having their cases heard; and must not suffer any form of vulnerability, disadvantage and social exclusion.  A good illustration is the ruling of the Jamaica Appeals Court in Court of Appeal vs Hines and King (1971), on  the right  of a Rastafarian to begin his oath with "I swear by Almighty God, King Rastafari".  This according to the ruling is "consistent with his professed belief of the sect to which he belongs".  Similar groups have benefited from rulings supporting their rights to access. In 2007, Justice Bereaux underscored the importance of equal access by ordering that provision be made  for facilities for people with disabilities to have access to the public entrance of the Hall of Justice in Port of Spain, Trinidad and Tobago. The Jamaica Judicial code (revised 2014) states that " it is part of the judge's role to ensure proper accommodation is made for people who experience certain challenges, might have difficulties or be at a disadvantage".  More recently, CCJ rulings in McEwan vs Attorney General Guyana (2018) also supported trans persons getting into the court room with what was otherwise considered 'inappropriate dress'.


Recommendation  to improve access to justice and secure equality before the law for vulnerable groups. The book is replete with recommendations  drawn from various countries, highlighted in  the sensitization sessions at the 2019 Judicial Conference.  Among them are the following codes of conduct for judges:

• Maintain professional competence in the law and not be swayed by partisan interests, public clamour, various sources and irrelevant grounds.
• Awareness of the differences arising from various sources , social, political and economic status and other irrelevant grounds.
• Understand diversity in society and the differences from various sources.
• Desist from manifesting bias in the performance of judicial duties by word or conduct toward any person or group.
• Recognize that equality according to the law is not only fundamental to justice but is strongly linked to judicial impartiality.

How these legal codes and principles for reducing stigma and discrimination match the outcomes of discussions among faith leaders and parliamentarians will follow.

Reference
Janielle Zorina Matthews and Jewel Amoah eds, Securing Equality for All in the Administration of Justice : Proceedings of the Caribbean Judicial Dialogue , Faculty of Law, UWI, Mona , Jamaica : Pear Tree Press, 2019

Eddie Greene    

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