November 24, 2011


By: The Hon. Mme. Justice Désirée P. Bernard, O.R., C.C.H. Judge, Caribbean Court of Justice

Over the past one and one half days we have been addressed about and have discussed the topic of Gender and the Law in all aspects - gender-based violence, gender and judging, human rights of victims and perpetrators of violence, equality in division of property, gender equality and international treaties as well as gender in the work-place, masculinity and violence, sentencing and access to justice. I asked myself what more was left to be said, and decided that perhaps a historical overview of earlier judicial colloquia may form a backdrop to all of the issues we have so far considered.

The last two decades have revealed increasing recognition of women's rights as human rights, no doubt facilitated by the ratification by an overwhelming number of member states of the United Nations of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The effectiveness of any treaty or constitutional instrument depends in large measure on its application and interpretation. In this regard judges are strategically placed to determine such effectiveness by utilisation of international treaties in their judgments particularly in promoting and enhancing women's rights. It was recognised that the historic conservatism of the judiciary resulted in a reluctance to depart from tradition and time-honoured precedent, and a change of attitude was essential especially at the national level in order to advance the status of women.

In pursuance of this objective in 1994 the Commonwealth Secretariat, the Commonwealth Foundation and the Commonwealth Magistrates and Judges Association initiated a series of judicial colloquia on the utilisation of international human rights standards in domestic litigation. The result of this first colloquium held in Zimbabwe for senior judges of the African region was the adoption of the Victoria Falls Declaration of Principles for Promoting the Human Rights of Women. These Principles reflected the vital function of an independent judiciary to interpret and apply national constitutions and laws. One of the principles recognised that discrimination against women could be direct or indirect, and indirect discrimination requires particular scrutiny by the judiciary.

With regard to international human rights instruments the Victoria Falls Declaration recognised that these instruments have inspired many constitutional guarantees of fundamental rights and freedoms, and as such they should be interpreted generously, particularly those pertaining to women in relation to discrimination. Further, it is essential to promote a culture of respect for international and regional human rights norms, and particularly those affecting women which should be applied in the domestic courts of all nations and given full effect. They ought not to be considered as alien to domestic law in national courts.

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