Vital Lies, Simple Truths and Judicial Independence

on 08/16/2015 - 10:41 pm

by Quenby Wilcox

In the global battle to end domestic violence, governments are ‘rationalizing’ unbridled discrimination against women and corruption in court systems with the argument that judicial actors are ‘protected’ and ‘immune from sanctions’ under the principle of ‘judicial independence’ (or ‘sovereignty/federalism’ in the case of the American government and Gonzales vs. USA, 2011).

But, these arguments, from a purely logical stand-point, have no validity or substance, and are nothing more than gobbledygook of on-the-fence, do-nothing bureaucrats. As Daniel Goleman explains in Vital Lies, Simple Truths “one of the more commonplace strategies, rationalization, allows the denial of one’s true motives by covering over unpleasant impulses with a cloak of reasonableness… Rationalization are lies so slick we can get away with telling them not only to ourselves, but even to others, without flinching… a favored defense among intellectuals, whose psychological talents include inventing convincing excuses and alibis.” 

One of the principles upon which judicial independence is based is found in a report by the American Bar Association (ABA) An Independent Judiciary, which states that;

Judicial independence makes a system of impartial justice possible by enabling judges to protect and enforce the rights of the people… [it] is not for the personal benefit of the judges but rather for the protection of the people, whose rights only an independent judge can preserve. A truly independent judiciary is one that [] is not compromised by politically inspired attempts to undermine its impartiality.

The principle objective of “judicial independence” is “to protect and enforce the rights of the people” and NOT to “assure the impunity of lawyers and judges” in cases of negligence, malpractice, or “judicial error” (the ‘defense’ of the Spanish government in Gonzalez Carreño vs. Spain, CEDAW, 2014).  

The fact that a government refuses to investigate allegations of widespread discrimination against women within its courts, and then in official investigations claim that the discriminatory actions of lawyers, judges, law enforcement, and other court-officials are “immune” (under the principle of judicial independence) aggravates their legal responsibility under the ‘obligation to protect’ – elevating human rights violations to crimes against humanity as defined by art. 7 of the Roma Statute of the International Criminal Court.

Human rights law of the past 60 years clearly establishes that state and non-state actors cannot use ‘sovereignty rights’ to justify ‘human rights violations’ (ie. Rationalizations used by Hitler, Pinochet, Franco, Omar Bashir, Kim Jong-il, Bush etc.). Ergo, following the same logic and legal argumentation, judicial independence cannot be used to ‘justify,’ and thereby, ‘legitimize’ systematic discrimination against women in the courts, under international law standards – particularly after CEDAW’s recent ruling in Gonzalez Carreño vs. Spain.  

This is why it is important to examine how, in the past 5-6 decades, government officials and courts across the globe, have been indoctrinated with ‘patriarchal-dominance’ ideologies by male-supremacy groups in their backlash to feminism (ie. “politically inspired attempts to undermine the impartiality [of the juiciary”).  During this time male-supremacy advocates have managed to solidify and amplify an already discriminatory agenda within the courts, with major media outlets jumping on the band-wagon, portraying men as ‘injured,’ ‘angelic’ fathers/husbands vs. ‘villainous,’ ‘greedy,’ ‘lazy’ mothers/wives who are sucking the life-blood from their ex-husbands.

Gender-stereotyping by lawyers, judges, court-psychologists and other court personnel label women as “shameful parasites” who “do nothing but live off the back of their hard-working, upstanding, kind husbands – giving them nothing in return,” or “shameless hussies” who have “abandoned their children in exchange for egotistical, money-grabbing pursuits.” The first dialogue is used to rationalize the violation of women’s economic right, and the second is used to rationalize the violation of women’s custodial rights.

In family courts -- women are damned if they do, and damned if they don’t!

Spain provides an excellent case study of this phenomenon, with extensive documentation by Amnesty International and Save the Children on the failure of the courts to implement gender-equal human rights standards in actual court cases and judicial decisions – with the enormity and severity of the situation further high-lighted in Gonzalez Carreño vs. Spain  (CEDAW).

And, since defending the economic rights of women (particularly during a divorce) is absolutely vital in empowering her, it is important to examine how international, human-rights standards and gender-equal constitutions and legislation are being applied and implemented in challenging the discriminatory norms in family courts. For example:

  • How are international conventions being used by family law lawyers in Spain (in conjunction with art. 14, 33 & 39 of the Spanish Constitution, Spanish civil code (arts. 66-68, 90-101, 315-1410) and the Equality Act) to challenge widespread discrimination and violation of economic and custodial rights of women by family courts?  
  • How are these legal tools, as well as penal codes, being used to sanction discriminatory actions (and omission of actions) of judicial actors?
  • How are they being used to reclaim reparations for victims of discrimination and legal abuse?
  • How & why are gender-stereotyping and double-standards in the courts creating situations where female victims are being incarcerated over the smallest technicalities, but abusers and judicial actors are absolved of all criminal wrong-doing for repeated felonies?

These are questions policy-makers and governments, as well as the women’s human rights and legal community, should be asking in ending impunity for the widespread discrimination against women in the courts.  The key to ending violence (and abuses of power in all their forms), lay in ending impunity of perpetrators.  As the UN states in Ending Impunity for Violence Against Women and Girls:

Violence against women and girls is increasingly recognized as one of the most serious and urgent challenges of our times. In all parts of the world, its very real and harmful effects on women and girls have been seen to impede the pursuit of development, peace and gender equality. The international community and civil society together have concluded that there are no circumstances that can excuse violence that targets women and girls — it is always a violation of their human rights, it is always a crime, and it is always unacceptable.

All too often, perpetrators of violence against women and girls go unpunished. Such impunity — viewed by many as equally widespread, and equally unacceptable, as the violence — is a key element in perpetuating that violence and discrimination. As long as impunity for violence against women and girls is accepted and tolerated by society, so too will society continue to accept and tolerate acts of violence.

But despite growing awareness of the magnitude of the problem, its dimensions, forms, consequences and costs — to both the individual and society at large — the political will to end the culture of impunity, and to effectively prevent and address violence against women and girls, has not yet materialized.

Just like Pinocchio whose nose would grow longer and longer with each lie; the tales governments are spinning in international courts, to their constituents and even to themselves are growing longer and longer – with the empty promises and double-talking of politicians as obvious and ridiculous as the nose on Pinocchio’s face.

 

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