Guyana Bar
Association Conference
“The State of
the Legal Profession. The way forward”
25-26 November
2000, Guyana
______________________________________________________________________________
Exploring Constitutional Imagination, Points in limine
about gender bias:
Who are "We the People of the Co-operative Republic
of Guyana" and where do daughters in law belong?
Tracy S. Robinson
Lecturer
in law, UWI, Cave Hill Campus
I want to say what a
pleasure it is to be here and I also want to thank the Guyana Bar Association
for extending this invitation to me.
This is my first visit to
Guyana and I have been looking forward to it. Everyone knows that we Jamaicans
think highly of ourselves and our country, but I have always been non-plussed
when Guyanese point to our beautiful water masses, the Rio Grande, the Rio
Cobre and say, And you call that a river!
You’ll be interested to
know that it is my fascination with the grandeur of Guyana, that motivates my
talk with you. For those of us from the North of the region or living in the
eastern Caribbean, your Constitution, compared to ours, looks like the seas of
rivers one finds here to our puny tributaries (and here I dare not even bring
Barbados where I live into the picture). I am sure you have different opinions
on its worth, many of you might be very cynical about it, I too as you are
about to see have my own reservations, but you cannot deny that, like the
landscape and waterways, what you have is a grand constitution.
Like a true academic I have
obscured my mandate. I was asked to speak about gender bias in Caribbean legal
systems, and I have instead come up with some unintelligible confounding topic
for discussion. And like a true lawyer I am about to sidestep the real question
at hand by taking points in limine.
In spite of this, I still want to plead that I am in this exercise not being disengenuous. I’ll explain why.
The word bias imports prejudice or slant, if you want mathematical terms, one word would be diagonal. If we were thinking of antonyms, the opposite of gender bias, I think quite simply it would be gender equality. Equality is the ideal and bias the deviation.
Here is my point and I am
anxious that it not be too subtle for you to catch it. Whether you see bias, a
slant, a diagonal line, or alternatively, equal-ness, fairness and balance
depends on how you hold your head, the angle from which you are looking. This
seems so obvious as to lack profundity—that different people will look at the
same thing and one come to the conclusion that there is a slant, others will
see it as level and balanced, because they are looking at it from different
perspectives. But this self-evident
point is the essence of everything I am going to say today, perhaps it is all I
will manage to emphasise today.
Before we can begin to talk
about incidents of gender bias—whether it exists in sentencing of male and
female offenders, or in judicial attitudes in sexual offences trials, or
whether women get a fair deal in seeking child maintenance or in property disputes
when a relationship ends, or whether child custody is skewed in favour of men
or women, or whether we are treating sexual harassment in the workplace
seriously as a problem, or who is hurt most by the fault based divorce
laws—before we can get to those crucial questions, we must ask ourselves, what
angle are we looking at the issues of gender from, because that will determine
what we see.
This is my point in limine, literally meaning, the point
at the threshold, or at the very beginning. That we must investigate our
perspective on gender issues, that axis on which we place men and women which
tells us who we expect them to be and become and how to behave, before we can
determine whether the axis has gone askew. Otherwise, I believe we find
ourselves arguing in unproductive ways and we miss the fact that the meaning we
give to ‘gender equality’ and ‘gender bias’, really are a function of the
viewpoint we bring to the discussion.
I hope you can stay with me
as I attempt to make this one point in different ways. I am not looking for
consensus—I am not bothered by being controversial, feminist sensibilities
rarely engender that in the Caribbean—but I do hope you take the time to
comprehend my argument.
I have said just that the point in limine is about perspective—where you are when you are looking
at the issue of bias. Well if that is so, then the place in limine, at the
threshold at the very beginning, for understanding the meaning of gender, how
women and men are viewed in the nation, for us must be the preambular
declarations in the Constitution. In magnificent style, like the great US
Constitution, the first words in the present Constitution of Guyana are, “We
the People of the Co-operative Republic of Guyana”. Today in looking at the
question of perspective, I want to ask, how does the Constitution imagine ‘We
the People’? Some times we forget that, as Justice Assissah said in the
Botswanan case Dow v Attorney General,[1]that
the constitution not only deals with the design and structure of state power,
it “is a document of immense dimensions, portraying, as it does, the vision of
the people’s future”. Often times we overlook that constitutional law is a
conversation in which fundamental questions about the organisation of social
and political life, including the position of men and women in society, are
self-consciously and explicitly dealt with.[2]
Permit me jump to article
29, the most definitive language guaranteeing gender equality that can be found
in any Commonwealth Caribbean constitution. Women and men, it says, have equal
rights and the same legal status in all spheres of political, economic and
social life. All forms of discrimination against women on the basis of their
sex are illegal.
It continues: The exercise
of women’s rights is ensured by according women equal access with men to
academic vocational and professional training, equal opportunities in
employment, remuneration and promotion, and in social, political and cultural
activity, by special labour and health protection measures for women, by
providing conditions enabling mothers to work, and by legal protection and
material and moral support for mothers and children, including paid leave and
other benefits for mothers and expectant mothers.
For those of us committed
to seeing the recognition of women’s rights as human rights, these words are
fairly close to as good as it gets. Rather than just the usual civil and
political rights, we see clear enunciation of women’s economic and social
rights too. And Guyana stands out in the region in its efforts to support the
constitutional framework with legislation. There is the Equal Rights Act 1990
and the Prevention of Discrimination Act 1997. Women have been afforded more
equitable rules for distribution of property when a relationship ends and given
access to financial provision on the death of their partner through the Married
Persons Property Amendment Act 1990 and Family and Dependants Provision Act
1990. Importantly both recognise the reality of Caribbean families by extending
relief to those in relationships looking like marriage. The numbers of statutes
relating to women in the workplace are too numerous to mention here. The
Medical Termination of Pregnancy Act 1995 is an important recognition of
women’s autonomy over their bodies and the Domestic Violence Act 1996 speaks
clearly to women’s right to safety of their persons and to a life free of
violence.
The question then is, what
do all these lofty ideals and rights mean? Perhaps by now you can anticipate my
argument—I think what they mean depends on what angle you are looking at it
from.
Some of you no doubt
remember the case of Nielsen v Barker[3].
And I’m sure you know its idiosyncrasies far better than I do. Fin Mortensen
came to Guyana purporting to be one Ragner Harry Nielsen. He was a bit of a
professional criminal in Denmark, he had earlier convictions for fraud and
burglary, and then he had been sentenced to life imprisonment on convictions
for murder and rape. While serving that sentence he escaped from prison and he
found his way to Guyana where he, amongst other things, married Saadia Mohamad,
who said that was at the time of his arrest she had been living with him for
seven months and was pregnant.
The whole object of
Nielsen’s case was to prove that he was not a prohibited immigrant; part of his
argument being that through his marriage to a Guyanese women he belonged to
Guyana. Wbo was a belonger? Under the Immigration Act, the dependant of a
Guyanese qualified for belonger status. Dependent was in turn defined as the
wife of a Guyanese. Husbands of Guyanese women were excluded. The wives of
Guyanese men had belonger status but not the husbands of Guyanese women. It
brings to mind those provisions in your independence Constitution which gave
Guyanese married men superior rights to pass on citizenship to their foreign
spouses and children born outside of the jurisdiction than Guyanese married
women—widely acknowledged to have been discriminatory.
Nielsen saw the obvious
difficulty-- that he did not fall within the terms of the Act, but made a
valiant argument that he should. It was quite simple, he pointed out that the
provision that only granted belonger status to the foreign wives was
discriminatory and violated the equality clause in article 29. As an existing
law he argued that the provision should be modified to bring it in conformity
with the constitution. The solution—change the word wife to spouse.
The Court of Appeal
dismissed this argument as out of hand. They said that the purpose of the
equality clause was to achieve equality between the sexes, not elevate men—here
I take the judges to mean Mortensen aka Nielsen especially. The concept of
dependency articulated in the Immigration Act was said to be in no way
inconsistent with the guarantee of equality in article 29. In any event, the
Court of Appeal though that changing the word wife to spouse would
fundamentally alter the concept of dependency as it had developed in family
law, seen in the common law duty imposed on a husband to maintain his wife.
Change could only come from Parliament.
At this point we have to
pause and take a deep breath, for, notwithstanding the abhorrence we have for
this scoundrel and criminal, this was a remarkable decision. The idea that the
constitution as the highest law in the land could not and should not dictate
the norms embodied in legislation, but rather should defer to Parliament to
make the necessary changes, was a devastating blow to everything I had learnt
and hoped about constitutional supremacy. The ironic suggestion that the more
entrenched the discrimination was in ordinary law—here embodied in numerous
common law principles—the less capable the Constitution would be of insisting
on change devastated my optimism about constitutional review.
Let me make this plain,
from everything I can glean, Nielsen was a despicable man. No one would have
wanted to see him use what lay people derisively call technicalities to find a
way to stay in Guyana. But this, I suspect, overriding concern cannot justify
the outcome of the case on this constitutional point. Even if the court
accepted his reading of the equality clause, which I dare say they should have,
he would have still lost the case on many other grounds.
The reason I am so strident
on this one is because, in effect, this case says that a law that defines the
position of women as dependants of men is consistent with equality. Yes, this
case was about Nielsen ingenuously trying to find a way to avoid the prison
cell patiently awaiting him in Denmark, but it was not entirely about him. This
case was also fundamentally about the rights of women as citizens to confer
status on their foreign husbands, just as men were able to. Nowhere was this
seriously acknowledged or properly addressed. Instead the case gives
constitutional imprimatur to a characterisation of men as the true citizens and
women obtaining rights to participate in the life of the nation through their
relationship to men. I respectfully suggest, this cannot be right.
It was this case that
singly shattered my naïve assumption and optimism that words like equality,
discrimination, bias, prejudice had precise and inevitable meanings that
everyone would agree on. I then discovered, it all depended on what angle you
were looking at it from. I then realised that articulating a standard of equality
even in a grandiose fashion, or prohibiting the violation of it—bias—would not
inevitably lead to a just society.
The result in the case of
your Constitution is even more stunning. In Nielsen
the Court of Appeal rejected the argument that the provision in the Immigration
Act was not in conformity with article 149(1) of the Constitution. That article
mirrors the anti-discrimination provision found in the Bill of Rights of most
other Caribbean constitutions. Like the early constitutions of the 1960s, it
prohibits discrimination of a wide range of grounds, but does not include sex.
The Court of Appeal said the category of prohibited grounds was closed, sex
could not be implied, and dismissed the application on those broad equality
points. Please follow me this extra step. In 1989 after that famous case, Att-Gen v Ali[4]
an amendment was made to the Constitution to provide that the Chapter
containing article 29—‘Principles and Bases of the Political. Economic and
Social System—contained only directly principles and did not give rise to any
enforceable rights.
The extraordinary effect of
all of this is that where gender equality is
flamboyantly enunciated in article 29, its inclusion is said to mean nothing in terms of justiciability
and where gender is not mentioned,
this time in the anti-discrimination section in article 149, its absence is
said to mean everything. This is a
highly unsatisfactory position for women in this country to find themselves in,
at a time when I understand it is hard to find room to articulate concerns
about gender, in an environment where race talk seems to have enveloped almost
all the nation’s imagination of injustice. I am told that women have had to
almost invade the constitutional review process to put gender issues on the table.
This reminds me of the
statement made about two years ago by the Jamaican Attorney General when asked
to explain why an interim bill to amend the chapter protecting fundamental
rights and freedoms in the constitution did not seek to include sex as an unlawful
ground for discrimination. He explained that the issue of gender would
eventually be looked at, but was not included in the interim bill because “we
have to put into that Bill matters which
are of the utmost importance like the right to vote, the right to hold a
passport, to have fair treatment.” He added: “I am not saying that gender is not important…it is intended that the new
charter on fundamental rights will be tabled within weeks and will include the
provision that has to do with discrimination on the grounds of gender.”
So women’s rights are not unimportant, just not of the utmost importance. This hierarchy
of rights and interests,
this notion that women can
wait a little longer for their issues to be addressed while matters of the
utmost importance (like race) get dealt with,
this placative tone calling
for patience in getting to questions of gender,
this pause we invariably
make in getting to questions of the meaning and value of masculinity and
femininity in the life of our countries and the region,
is the backdrop, the
perspective the angle from which I believe we are seeing issues of gender bias
and equality in the Caribbean.
And so as I thought about
all of this, I decided I needed to go back to the threshold, the very
beginning, of really who ‘We the People’ are. Your constitution reads:
“We the People of the
Co-operative Republic of Guyana are
the proud heirs of the
indomitable spirit and unconquerable will of our forefathers who by their
sacrifices, their blood and their labour made rich and fertile and bequeathed
to us as our inalienable patrimony for all time this green land of Guyana
Saluting the epic struggles
waged by our forefathers for freedom justice and human dignity and their
relentless hostility to imperialist and colonial domination and other forms and
manifestations of oppression;
Acclaiming those immortal
leaders who in the vanguard of battle kept aloft the banner of freedom by the
example of their courage, their fortitude and their martydom whose names and
deeds being forever enshrined in our hearts we forever respect, honour and
revere…
In Jamaica we would call
this lyrics, some of you no doubt amidst the grave economic problems of Guyana,
would prefer to label it bombastic and rhetorical flourish. Whatever you call it,
you should not underestimate its importance as the beginning of understanding
who has the right to claim to belong and be a part of Guyana, to be a part of
‘We the People’. Too often we make the mistake of skipping over it and delving
into the body of the constitution, including the equality clauses. The body and
substance might start at article 1, but the soul is in the preamble.
As a non Guyanese perhaps
you can help me literally identify some of these people—forefathers who waged
epic struggles for freedom, justice and human dignity, relentlessly hostile to
imperialist and colonial domination, immortal leaders who were in the vanguard
of battle and kept aloft the banner of freedom.
You see, when I read first
about the proud heirs (in traditional terms the male offspring entitled to
inherit from his father), of the inconquerable spirit of the forefathers, who
bequeathed you their inalienable patrimony (property inherited from ones
father) I wondered about how women fit in this conception of We the People.
I can already hear some of
you castigating me for being so literal and pedantic. We all know the rule of
interpretation that the masculine includes the feminine. Well that merely
describes the outcome, not the process. Here is what I mean when I say that.
Try to think through (I acknowledge this is an abstract exercise) the process
which begins with reading the masculine pronoun ‘he’ in a statute and
concluding that it also means ‘she’. It is never automatic, in fact it is
almost contrived: First we read he and we understand it to mean just that,
talking about men. Then we remind ourselves that women are included, but not in
the first instance, or intended in their own rights: women come in through men.
We keep talking about the
outcome, that women are included, that gender equality is provided for in the
constitution, but we pay little attention to the process, which is one of
inclusion through men, not intention as women.. Sure, the masculinist character
of ‘We the People’—forefathers, heirs, patrimony—includes the feminine. But do
not miss the order, it is men in the first instance who are described as ‘We
the People’, women come in, when we remember that they must be included, and
this time they enter through men (he includes she) and through their relationship
to the forefathers as mothers, daughters and sisters. Men are the centre of
constitutional concern; the sine qua non of
the constitution is justiciability, and women don’t even get that. Of course,
women are not excluded from citizenship, but that citizenship is firstly
conceived in terms of women’s relationship to the paradigmatic citizens, men. A
respondent in the Women in the Caribbean Project put it nicely, “You see a
woman because you see a man, you say so and so and his wife”.
This is precisely what
Nielsen ended up saying, when it suggests that we can conceive of equality in
conditions where we don’t recognise women’s separate identity and we define
them in terms of men. The whole point of my discussion of Nielsen case is to show you how perspective counts. Exactly the
same type of understanding of the role of men and women in the life of the
nation we see in the preamble is articulated in Nielsen and it ultimately
determined what equality and bias really meant.
As I think about how women
are meant to fit into “We the People” I am increasingly more concerned about
the position of, what I called in this paper, the daughters in law—women in the
legal profession, in the legal fraternity. The legal profession has to be an
important index for understanding issues relating to the materialisation of
women’s citizenship. I am not suggesting that lawyers are representative of the
general population in anyway. What I want to say is that lawyers are
significantly responsible for making live a vision of meaningful citizenship
for women and men: we draft the constitutional provisions, we are
disproportionately involved in parliamentary politics and hence play a key role
in re-articulating constitutional vision, we through our advocacy champion
constitutional values and as officers of the court uphold it in every regard,
and as judges and magistrates we are guardians of constitutional principles. It
goes without saying that if the professional lives of lawyers do not
demonstrate gender justice then it is hard to imagine that we can effectively
or sincerely play our important role in facilitating national goals for the
same.
I understand that the
Guyana Association of Women Lawyers recently responded to what were said to be
statements made by the Chancellor on the place on women in law practice. I
don’t have a transcript of the Chancellor’s comments, so I will refrain from
speaking directly to them. But I am sure you are well aware of that debate.
I would like to put this in
a broader context of concerns being expressed about the numbers of women
entering the legal profession. There is almost a panic that women seem to be
taking over law. I feel myself right in the middle of this controversy because
the University of the West Indies is at the heart of the debate as the level of
female enrolment steadily increases and law always gets special attention. At
the reunion of the Norman Manley Law School recently, celebrating 25 years of
professional legal training in the Caribbean, one of the main topics of discussion
was the ‘disparity’ between the numbers of men and women entering the
profession. As a teacher in the first part of legal education, the LLB degree
at Cave Hill I expect to see about three women for each man in my classes. Many
see this as a crisis, lawyers now recruit openly for male attorneys, especially
in litigation practice. There is a cry for gender balance, for a reorientation
away from the female bias evidencing itself. All of this tends to miss the
point in limine about perspective,
the angle from which we see this, the ideology about the appropriate position
of men and women in law we bring to this, entirely.
There is a famous US
Supreme Court case Bradwell v Illinois[5]
decided in 1872 in which the Court upheld an Illinois prohibition on women
practising law. Myra Bradwell who wanted to practice and challenged the statute
was dismissed with this missive from Justice Bradley:
[The civil law] as well as
nature herself, has always recognised a wide difference in the respective
spheres and destinies of man and woman… The natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for many of the
occupations of civil life. The constitution of the family organization, which
is founded in the divine ordinance, as well as in the nature of things,
indicates the domestic sphere as that which properly belongs to the domain and
functions of womanhood.[6]
We have made progress in the last century, but there still is a sense that even if we let women participate, they must know their place. We continue to hear strains of the theme—family law not criminal law, chamber work not advocacy, government service and less private practice, in-house counsel not counsel in court.
As we get into the ‘counting numbers’ game we rarely see how selective we are being. When was the last time you heard a hue and cry about the numbers of women in nursing; No! Caregiving, cultivated through women’s proper ascription to the private domain, is an appropriate venue for paid employment for women. We rarely notice that we overlook the fact that in raw numbers, almost everywhere in the Caribbean, law is still a man’s world, men dominate numerically; and that the women are disproportionately clustered at the bottom. The presence of a woman chief justice is remarkable largely because this is a country in which there are no women senior counsels and women seem to be still very underrepresented at the very top of the profession. I am often told that it is just a matter of time, women will get to the top and take over. Time is the bane of women’s progress. We are either told, please wait we cant deal with your issues right now, we have more important things to do; or just wait and see, your ascension is inevitable, even imminent, so we have no need to address pressing issues women face today.
As we watch this ‘inevitable’ ascendency of women in law, lets exercise some restraint because it does not mean the profession has all of a sudden become more hospitable to women. I still meet women in the early years of practice who weep at the prospect of having to their senior partner that they are pregnant, or who are snickered at when their court attire is maternity wear, or who are surprised to discover that their male classmate from UG or UWI is being paid 20% more than they are by the firm, or that in chambers their senior hands all the best briefs to her male counterpart, or that their clients don’t pay as readily as they do for male lawyers. The more women are prepared to leave their womanness out of the picture, look more like men, is the more willing the profession often is to accept their progress. And here I mean no disrespect to many remarkable stories of women’s success in law, here in Guyana and the rest of the Caribbean, but it is often at enormous sacrifice. The more able women are to delay child bearing or abandon it, to absorb the pernicious harassment that still exists in the profession without public complaint, to take out their braids when they go to court, the better their chances sometimes become. Not that masculinity is left out of law practice, quite the contrary—the Bar still literally means that, a particular capacity for consumption, an aggression only men are allowed to have. Women in law can face a double bind, they are told they are too soft for criminal work and advocacy, but censured for being unladylike when they are aggressive, the very thing it is said they need to be.
Is it inconceivable to imagine a world in which rather than punishing women professionally for having children, we feel a sense of shame that we still impose the principal responsibility for child rearing and the household on women and that women’s disproportionate unpaid work in this regard in fact is a subsidy to men who are freer to fulfil professional ambitions? Why cant we imagine a world in which those involved a practice devoted to the most fundamental institution of society—the family—who in daily practice are made to take on the daily stresses and problems of ordinary people are as prestigious as those defend criminals at the bar.
I am asking the same preliminary question about what we imagine the role of men and women in our nation to be. It is that which tells us why we see female ascendancy in law but ignore its persistence in nursing, or how we are quick to remind everyone we have a woman CJ, but watch every single year a new batch of young female attorneys unsuspectingly face a few notorious harassers who transgress over and over again, but simply relegate this to a rite of passage for new female practitioners.
As we get caught up in the rhetoric of bias and equality, balance and prejudice, ascendancy and marginalisation, let us stop and take some points in limine about our assumptions about the role men and women should have in the life of the nation.
My suspicion is, that in spite of all the progress, there is an undercurrent which still holds on the idea that women can become involved, can participate, can even be in exceptional circumstances President of the country, but that when we think of ‘We the People’ we in the first instance think of men, and then only after consider women’s inclusion. That hesitation or brief equivocation before we get to women’s right to be included, that small pause is filled with hierarchical possibilities and actualities—that clear distinction between matters of the utmost importance and those not unimportant.
So as you contemplate the state of the legal profession and the way forward and as you engage in the crucial process of constitutional reform, remember the grandeur of your constitutional heritage. Take some time to go the soul of the Constitution, to the threshold of constitutional meaning and the organisation of social and political life—who are ‘We the People’ and how we understand citizenship for men and women. Can I suggest we do this as visionaries rather than by romanticisng a past, that was far from romantic for women. Let us this time around say not just who we recognise as the immortal leaders in the vanguard of old battles, but express a commitment to a new kind of democratic leadership that embraces women not just at the grassroots, but in the pinnacle at the treetops; let me encourage you to not just salute the epic struggles of the so called forefathers, but honour the battle for daily existence all Guyanese people, especially women, wage every day in these hard times; Let us not just focus on what legacy we consider ourselves heirs to but contemplate with seriousness and humility what legacy do we will leave and want to leave for the daughters and sons of this country.