16th January 2000

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Her rights and his prejudices

An international conference on sensitizing judges on the importance of gender equality was concluded in Colombo recently

Judges, lawyers and hu-man rights activists from the Asia-Pacific region met in Colombo last week to discuss human rights and equality for women in a move hailed by activists as a "great step for womankind in our country."

"When Neil Armstrong landed on the moon he said it was a giant step for mankind. I can with confidence say that this conference is a great step for womankind of our country," noted Justice Shiranee Tilakawardene from Sri Lanka's Court of Appeal.

Ms. Tilakawardene, also the convenor of the Asia-Pacific Advisory Forum on Judicial Education on Equality Issues, made these remarks at the opening session of the Forum's four-day meeting on human rights and equality, aimed particularly at sensitizing judges on the importance of gender equality. The meeting concluded on Friday.

This was the third meeting - on human rights and equality - organized by the Forum, the previous two being held in New Delhi (1997) and Lahore (1999).

Conference organizers said the meeting, which brought together 50 male and female judges, lawyers and rights activists from across South Asia, Fiji, Britain, Canada and South Africa, discussed issues on violence against women and children and judges' attitudes towards women and their equal treatment under the law.

"Judicial myths, stereotypes, attitudes of judges. Were found to have contributed to the obstacles for women to have their fundamental right of equality enforced through the courts," said Justice Tilakawardene, an outspoken activist on human and legal rights of women.

The meeting raised many interesting issues on how and whether judges' attitudes towards women in the courthouse should and would change and why equality before the law is the right of women.

In many such situations, judges were found wanting and biased against women.

Clare L' Heureux-Dube, a senior judge of Canada's Supreme Court and president of the International Commission of Jurists (ICJ), says judges in order to be impartial should have an open mind, and not have assumptions that have no place in reality.

She told The Sunday Times in an interview, on the sidelines of the meeting, that rape and violence against women were happening across the world, and not only in the Third World.

"Women are raped in Canada; they are raped in the United States or in France. But that is not the problem. The problem is - how is it settled? If the rapist goes free it means there is something in the system we have to verify. Why do women feel uncomfortable to report a rape? It is because the system doesn't help them to go through that process," she said.

Ms. Dube said women were victimized and traumatised when they had to repeat the incident "under adversarial cross examination."

"Questions are irrelevant - how were you dressed? Does it matter ... you could be naked, but was there consent? This is the attitude. Judges don't realize that these are questions that are irrelevant."

The Canadian judge, a respected world figure in the field of human and legal rights and judicial education, said common law prescribed that women's testimony should be corroborated not men's. "Why? Because of the myth that women are not credible. But when they say a woman has robbed or anything else, corroboration is not asked for. It is only in sexual assault cases and violence against women, that this is necessary," she said.

She also said there was a myth that if a woman was raped, there should be injuries that are visible. "You can get raped without any visible injuries. What about internal injuries - trauma and abuse?"

These were some of the key issues raised at the meeting, as women participants and male rights activists spoke of the crisis facing women in reporting a crime and being examined in a courthouse and the attitudes of the police and judges in these situations.

The frequently asked question at the meeting was - are judges biased against women and what should be done to change these attitudes?

Most studies show that the courts, which should be the arbiters of justice for women who are victims of rape and other violence, had re-traumatized and stigmatized women when they appeared to give evidence or were cross-examined.

A study on gender and justice by Sri Lankan law teachers Shyamala and Mario Gomez noted that though Sri Lankan laws provided, for a trial "in camera", this procedure was hardly used. The mother of a child rape victim, whose trial was in camera, was quoted as saying that "when the children were relating the incident, they (the judge) would ask everybody else in the courtroom to leave."

"However, this served little purpose because the defence counsel would ask the questions so loud that anyone standing outside the courts could hear him. Even though we were standing quite far from the courtroom we could still hear our children crying and the questions put to them by the defence lawyer," the woman said, according to the Gomez report.

Naina Kapur, an Indian barrister and director of a women's rights group based in New Delhi called Sakshi, told The Sunday Times though the number of incidents of violence against women may not have increased, there was greater visibility of these cases now.

"The women's movement and the media have been able to bring these issues to the public eye," she said. It was a 1996 Sakshi survey on "Gender and Judges: A Judicial Point of View" that spurred the Asia-Pacific Forum to initiate a gender equality programme for judges.

A conference document said that Sakshi's three-year study in five Indian metros related to the judicial perceptions of women who access the justice system in situations of violence.

The survey interviewed judges, women lawyers and women litigants about the access and impact of justice in situations of violence against women. "While the report emphasized awareness of judicial gender bias, judges were unaware that such bias lived within them," the document noted.

Kapur said that victims of violence shudder from going to courts saying the experience in courts is worse than the crime itself. "When we interviewed judges during the survey they came up with some amazing opinions.

One judge said that if his daughter was violated, he would advise her to adjust instead of reporting the incident."

Kapur said with the judicial education process, judges were becoming more and more aware of social realities. " In the survey, we placed judges as fathers and their daughters getting sexually abused, and asked what they would do. When it comes closer home, it makes you look at your attitudes."

Speakers at the meeting included the Sri Lankan Chief Justice Sarath Silva, Colombo University Vice-Chancellor Prof. Savithri Goonesekere, Albie Sachs of South Africa's Supreme Court and Dr. Radhika Coomaraswamy, Special UN Rapporteur on Violence against Women.

The conference was jointly organized by Sakshi and Colombo's Law and Society Trust and sponsored by the Canadian International Development Agency (CIDA).

Coomaraswamy, in her presentation, raised pertinent questions on when crime against women becomes a human rights issue.

"If a man beats his wife or rapes a woman, this is a criminal issue, not a human rights one."

She said judges often accepted the distinction between private and public domain when crimes against women were committed. The sanctity of the home, the family honour were more recognized by judges than crime and domestic violence against women.

"Judges let people go free in many cases due to family honour and traditional practices. These are not related to the law at all," she added.

"How do we change tradition? How do we get judges to use criminal law to tackle inhuman, traditional practices?

Douglas Campbell, a judge of Canada's Federal Court, said nowadays judges sit together and discuss judgments that have been criticized by the public, to ascertain the areas of criticism and what may have gone wrong.

"This is what judicial education is all about. They want to hear other opinions."

Campbell, who has been involved in judicial education as a teacher for many years, said judges wanted people to believe that the system was sound and had integrity.

"About 10-20 years ago they did their job and did not respond to public criticism in any way. Now they do. The judiciary is more open. People say what they want to say now.''

Kathleen Mahoney, a law professor in Canada who also works on human rights and women's issues, noted that when judges get involved in social education "you know they are making an attempt not to be sexist and racist because the fact is ... many of them are without realizing it."

There is independence

The independence of Sri Lanka's judiciary is unquestionable, according to the International Commission of Jurists.

Clare L' Heureux-Dube, a senior judge of Canada's Supreme Court and President of the International Commission of Jurists (ICJ), told The Sunday Times that the ICJ sent a mission to Sri Lanka a few years ago, to probe the independence of the judiciary.

"We were absolutely amazed to learn how independent your judges are," she said, adding that the ICJ regularly visits countries to ascertain the independence of the judiciary and to what extent it is respected.

Ms. Dube said the report on Sri Lanka was extremely positive in the context of independence, security of tenure and salary levels of judges, which are essential to avoid corruption. ICJ, an international human rights organization devoted to the independence of the judiciary around the world, is sending an observer for a trial in Colombo next month involving the Chief Justice, she said.

Desmond Fernando, a respected lawyer from Sri Lanka and former president of the International Bar Association (IBA), is a member of ICJ's 45-member executive committee.

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