For those of you who don't know me, my name is Chen Foley, I'm a litigation associate, Cedric Chadli.
I'm also the chair of the board of the Centre for Justice.
And it's my pleasure to welcome you to this series of presentations this evening on race, law and history.
This is the third in a series of events that's been spearheaded by the Oxford Research Centre in the Humanities Race and Resistance Network,
and it has been organised with the cooperation of the Centre for Justice.
What makes this event different from the other events that have been organised in the past is that it's designed for
members of the bar to explore the theme of racial justice within the context of Bermuda's legislative and judicial history.
We're thankful to the Bermuda Bar Association, Appleby, Conyers Talent Pyramid and the Hamilton Princess for helping us to make this event a reality.
I also wish to acknowledge the work of Alexa Verdi, who sitting in the front.
Alexei is a Bermudian lawyer, and she's also a Ph.D. candidate at Oxford University,
and she had the vision of creating this evening's event, although the preparation,
I should say, although preparation was underway for this event in advance of the UK Supreme
Court decision in Roberts and the Commissioner of Police of the Metropolis.
It's worthwhile, I think, mentioning that the speech of Lady Hale is a stark reminder to many of us that the law
doesn't always respond to issues of race and racial justice in the way that we expect.
And it's for this reason that there's tremendous benefit in gathering together for a purpose such as
this to thoughtfully consider amongst our friends and colleagues the reality of how issues of race,
law and history in Bermuda have helped to shape our jurisdiction. There are three points of housekeeping that I just want to mention briefly.
The first is that as a courtesy to all the speakers,
may I ask that you either silence your cell phones if you don't have that functionality or you don't know how to use it?
Please turn it off.
If you're a member of Bar at the Bar Association, tonight's event will provide you with a 1.5 five points towards your 2016 requirement,
so please remember to sign up on the sign up sheets at the back of the hall.
Time permitting will have a Q&A session and I'll come back towards the end
with some guidance for how we can facilitate that at the end of the programme.
At this time, I would like to welcome the Honourable Chief Justice of Bermuda,
Dr. Ian Caroli, to the podium who provide this evening's keynote address.
Dr. Carolyn needs little introduction. He is, of course, the Chief Justice of Bermuda, and he also has a keen interest in Bermuda's legal history.
The paper he will present is entitled 400 Years of Courts in Bermuda 16 16 to 20 16 towards a non-racial vision of justice.
Please welcome our Chief Justice. Good evening, and thank you very much for that kind introduction, Mr Foley.
It's great pleasure to be able to participate in this event.
The 400th anniversary year of the permanent establishment of courts here is an appropriate time to reflect on race, law and history in Bermuda.
From the perspective of the courts, at least, this story, which must be told is of a journey in search of a promised legal land.
A land inspired by a vision of non-racial justice. A land which has neither been pursued at the speed of light nor at the speed of instant messages.
It is a tale I should stress at the outset, not told by an erudite legal historian, but by an earthy,
legal tradesman who occasionally likes to putter in the Garden of Practitioners scholarship.
According to my version of the story, the judicial travellers have overall made steady,
albeit sometimes halting progress towards that idyllic legal land, which is watered by a spring of pure and undiluted non-racial justice.
I would decline to follow for present purposes the somewhat cynical view of New World
Social Progress offered by Max Romeo in this popular reggae song one step forward,
two steps backwards in Babylon. Before beginning the story proper, however,
it is necessary to explain how I conceived the issue of race to be relevant to the judicial function
of the courts and why I consider non-racial justice to be still an ideal which has yet to be realised.
Why do I suggest that in 2016, the courts are still churning towards an ideal of non-racial justice?
The view that human rights provisions serve a non-legal function of setting ethical standards has been
persuasively put by the economics philosopher Amartya Sen as follows Proclamations of human rights.
Even those stated in the form of recognising the existence of things that are called
human rights are really strong ethical pronouncements about what should be done.
Legislating to create human rights protections and to prohibit human rights infringements is an important concrete and finite step.
But it does not guarantee that the protected rights will in practise be respected fully or at all.
Indeed, the courts are given the vital role under our legal system of enforcing the legal protections against human rights abuses,
including discrimination on the grounds of race. In today's legal terms,
most discussions of race in the law are shaped by 20th century human rights provisions in international
conventions and national constitutions designed to prohibit discrimination on various grounds,
including race. This modern approach of prohibiting multiple grounds of discrimination in a
holistic fashion is apposite for the judicial perspective of race and the law.
All forms of discrimination based on the personal characteristics of litigants ought to be shunned
by the Bermudian courts because equal treatment is central to the modern judicial function.
The British derived judicial oath reads as follows I do swear that I will well and truly serve Her Majesty Queen Elizabeth,
the second her heirs and successors and will do right to all manner of people after the laws and usages of Bermuda without fear or favour,
affection or ill will. So help me God. The need for judges to be sensitive about the multidimensional nature of discrimination is today well.
Canadian Chief Justice Beverley McLauchlan has eloquently described this aspect of the judicial function in the following way.
Justice must always be delivered in a responsive manner, one that takes account of the social context and different perspectives of those who seek it.
Justice must also be delivered in an impartial manner.
One which is free from prejudice or false assumptions about cultural difference in a world marked by pluralism.
The judge must become the one who understands every voice, any historical review of race and the law,
no matter how superficial, must not only have regard to the wider backdrop of discrimination as a whole.
It must also take into account the extent to which at various points in history,
the concept of equality before the law was defined and recognised not just
locally but in the wider world with which Bermuda was most closely involved.
It goes without saying that in a new world society with a history of both slavery and segregation,
the law at one time did not consider even overt racial discrimination to be as offensive as we consider it today.
The need for judges in a society such as Bermuda to be mindful of socio legal history was perhaps best expressed in a Caribbean
context some years ago by the now dean of the Faculty of Law at UC Santa Gaston Trinidad Rosemary Belen Toine as follows.
Just as the study of the English Common Law must examine the historical evolution of that law, so to my start,
so too must the study of West Indian law appreciate the birth of our own law grounded in slavery and colonialism.
The Caribbean man and judge has an active role to play in reinterpreting the legal framework to build a more indigenous and just society.
The Bermudian judiciary's journey in pursuit of the ideal of pure justice is a story which can conveniently be divided into three chapters.
The Pre Emancipation Period 16 16 to 18 30 for the Post Emancipation Period 1834 to 1968.
The Post 1968 Constitution period 1968 to 2016.
Assuming I do not run out of time, Bermuda began its life in constitutional terms as an appendage of Virginia.
The island was legally created or constituted by amendment and 16 12 to early.
A royal charter is granted by the by King James, the first to the Virginia company.
The Virginia company sold its rights in Bermuda for 2000 pounds.
Great bargain to various London merchants who returned the islands to the Crown in return for the grant on June 29th.
16:15 of Letters patent to the governor and company of the City of London for the plantation of the Summer Islands.
All the king's subjects who migrated to Bermuda and their children born there were granted all liberties,
franchises and immunities of free denizens and natural subjects within any of our dominions.
To all intents and purposes, as if they had been abiding and born within this,
our Kingdom of England or in any other of our dominions as far as possible,
the courts established were required to apply English law in the case of mutiny or rebellion martial law as applicable in England by a jury of 12 men.
Bermuda legally began as an English settlement whose residents included non English people regulated under a constitutional system,
which only formally recognised the liberties of English subjects and only fully English men.
In the first 100 years of the court's existence, persons of indeterminate status not only included all women African slaves, Native Americans, Irish,
Scottish and Welsh indentured servants who are often prisoners captured in the wars which created the United Kingdom,
where all people of indeterminate legal status because of their race or ethnicity broadly defined.
The constitutional order, which legitimised legal discrimination on racial grounds was from time to time subjected to vigorous challenge,
but the rule of law under a flawed constitutional order always prevailed.
There would be a number of conspiracies during the Premam suppression era aimed at overthrowing the established order,
which were foiled and often prompted explicitly racial legislation aimed at preventing rebellion by slaves and free college.
How one must ask, did the courts operate in practise during this era?
On June the 15th 16 16, the Court of General Tsai's first sat in St George's.
Various orders were made in civil cases.
However, the first criminal jury trial also took place after an accused man was charged and pleaded not guilty in CFE.
Hallet edited Butler's history of the Bermuda is the first formal jury trial in Bermuda is described as follows.
This is a translation into modern, modern English. The original version is not so easy to digest.
Soon after the departure of the pianist, Edwin Lifesize at St George's began, where there were only a few matters of importance to deal with.
The jury consisted of 12 men selected by a haphazard mixture of martial law and the Law of England and a discredit to both systems.
But one case arising was that of a man by the name of John Wood, who was arraigned and condemned.
He was an abject, hopeless and open, open mouthed Frenchman who in a drunken state had spoken cheekily and arrogantly to the governor.
Wood was arrested and charged with mutiny and rebellion, put to trial and sentence by the person who had been appointed judge.
The governor himself never took on the role of judge, as he was well aware of his own incompetence in that respect.
The condemned man was hanged some two days after the trial. Clearly, not only did free speech have its limits.
The principle that justice delayed is justice denied was given.
What now seems overly zealous recognition of a cursory review of sentences imposed by the courts in the pre emancipation era suggests,
perhaps unsurprisingly,
that English male citizens were treated far more leniently for criminal infractions than were persons of indeterminate legal status.
Somewhat surprising is the fact that even though special measures were taken to deal with serious rebellions,
even slaves were afforded the right of being tried in a court of law by a jury and in ordinary cases.
More surprising still is the discovery that courts comprised entirely of white Bermudian men were motivated to dispense justice in a fair manner.
On the fifth of June 17 30 zero, Sally Bassett was sentenced by the Chief Justice to be burned at the stake
during a period when various slave owners were being poisoned by their slaves.
She had been convicted by a jury of 12 in the court of generalises three days earlier.
However, on June 4th, 17:30 back, another female slave was found not guilty of poisoning by a jury of 12 white, presumably slave earning men.
Despite the fact that seven white witnesses and one slave gave evidence against
her was the same jury which had convicted Sally Bassett two days earlier.
Was it the same jury who convicted Sally Bassett two days earlier and did they feel that one conviction was enough?
Court records reveal several instances of the death penalty not being carried out in respect of slaves,
typically in response to emotional pleas by their owners.
There are also interesting instances of judicial dissent.
For instance, at the December 18, 16,
72 72 assizes the court by a majority order that notices be posted for the return within 15 days of a runaway slave blackjack,
after which period he could be shot.
The governor and secretary of the council, sitting in a judicial capacity, dissented from the second limb of the decision.
It is unclear. A cynic might interpose whether this dissent was based on concerns for the life of black.
The property interests of his owner or the rule of law.
And unambiguously liberal and impressive dissent occurred on Christmas Eve 16 73, when Sir John Hayden,
Cornelius White and Thomas Lee Croft were in a minority who voted against summary execution after stigmatisation
and whipping for several Negroes presented to them by a grand inquest as guilty of a dangerous plot,
although the majority decision apparently prevailed. The governor with Mr Lee Craft concurring suggested that as no blood had been shed,
the leading conspirator should be branded with the letter R and the rest were whipped and sent.
Home Secretary White voted for trial by a petit jury, presumably believing that even slaves should be permitted due legal process.
There was unsurprisingly no apparent attempt in Slave-Owning, Bermuda,
to follow what possibly would have been viewed as the morally valuable but economically
catastrophic English human rights precedent of Somerset's case decided by Lord Mansfield.
Chief Justice Mansfield, intriguingly and coincidentally was at the time raising a black great niece,
Dido dramatically portrayed in the 2013 film Belle.
On 22nd of June 1772, Lord Mansfield gave a pivotal ruling which helped to inspire the abolition movement throughout the
British Empire and also contributed to a tidal wave which would eventually roll onto Bermuda shores.
The egalitarian spirit of that movement was reflected in one pre emancipation case.
In particular, an act to ameliorate the condition of slaves and free persons of colour was passed in 1827,
which made free coloured irons and slaves competent witnesses before the court,
but did so in discriminatory terms, requiring them to produce certificates of good character, a requirement not applicable to whites.
Chief Justice James Christie asked in an opening their sizes on November 4th, 1827,
suggested that it would be extraordinary that the higher standard of conduct should be exacted from a class of persons whose servile condition,
either actual or past, must have had a tendency more or less to debase them in comparison with whites and that of of two persons.
The one white or notoriously bad, the other coloured not of generally good character.
The first should be admitted as a legal witness in the last repudiated.
All laws should have a reasonable construction, and I think it would be reasonable to take the words generally good character in the lowest sense,
as applied to persons who were either actually slaves or who have recently emerged into freedom from a servile position.
Aston has a lawyer at the turn of the century had defended John Stevenson,
the Irish Methodist minister convicted of preaching to slaves in violation of an act passed shortly after his controversial arrival in Bermuda.
Estan impressively but unsuccessfully had raised freedom of conscience as a defence,
possibly advancing the first explicit human rights argument in Bermuda's legal history.
In 1825, while still Chief Justice Ashton donated the land upon which slaves would build the Cops Hill Methodist Church.
Thus, even before emancipation,
when the courts were still required to work within a constitutional framework which formally sanctioned racial discrimination,
Bermuda produced a leading lawyer and senior judge willing to adopt a creative and activist approach which favoured non-racial justice.
The 1830 for Emancipation Act not only ended slavery, but also ended the era of explicitly racially discriminatory legislation.
Little mentioned is the fact that the number two act of 1834 in complementary terms to number one,
guaranteed equal access to the law without regard to race.
This implies that not only was slavery itself limited to persons of African descent,
but that even free people of colour did not enjoy equal rights before the law.
Looking at the provisions of the 1834 Emancipation Act number two through 21st century lands,
it is difficult to understand how or why policies of racial segregation were subsequently introduced at a precise point in history,
which it has not been possible to identify without being challenged for contravening the equal rights provisions of this landmark legislation.
Was the Act forgotten?
Was it studiously ignored assuming its terms reflected its short title and that it merely provided for the liberation of former slaves?
The Emancipation Act number one, was enforced in the enterprise case in 1835, which will be addressed by another speaker.
It remains for other researchers to identify any other notable case or cases between 1834 and 1968,
when non-racial justice became constitutionally protected in modern terms where the courts were required
to consider the legality of the racially discriminatory practises in relation to access to facilities,
employment and the disposition of property by will, which undoubtedly existed through much, if not all, of that period.
But perhaps the courts of Bermuda can take credit for the progressive pamphlet published in
London by then retired Chief Justice James Christy yesterday in 1837 and sent to the Governor,
Council and Assembly a plan for the religious,
moral and general instruction and the beneficial management of the concerns of the emancipated people of colour of the Bermuda's.
The apparent silence of the courts and racial discrimination,
which was arguably prohibited by the Emancipation Act number two for over 150 years, serves to illustrate an important point.
Noble ideals enshrined in written or unwritten laws mean little and real were world terms unless they are either reflected
in voluntary human conduct or given vitality by lawyers and litigants enforcing human rights protections in the courts.
Under the Bermuda Constitutional Order 1968, the Bermuda and courts were given for the first time the power to administer justice within
a legal framework under which all legal proceedings were formally equal before the law.
Section 12 of the Bermuda Constitution both prohibited parliament from enacting laws which discriminated
on the grounds of race and prohibited the application of any laws in a discriminatory manner.
The Human Rights Act 1981 prohibited discrimination in relation to employment,
accommodation, the disposition of property and access to other services. Indirect racial discrimination perpetrated perpetrated through the property
vote was finally dispensed with voting rights and access to public offices,
including juries where available to all without regard to property status and indirectly race.
Was this not nirvana? The route to the Promised Land, where pure non-racial justice flowed like milk and honey,
was now impeded by very few obvious constitutional obstacles.
The Constitution itself blessed parish based boundaries, which gave greater weight to each vote in small, predominantly white constituencies,
notably Paget, when contrasted with the weight of each vote in large, predominantly black parishes such as Warwick.
This anomaly was effectively removed by the creation of single seat constituencies of,
as far as possible, equal size through amendments to the Constitution introduced in 2001.
On the other hand, the 1970 in 1971 the Juries Act was amended to create a new form of special jury trial apparently designed to produce indirectly,
predominantly white juries. This represented backsliding in both philosophical and practical terms,
but the legislative measure at least deployed the subtlety of approach which Bermuda's 1968 constitution demanded.
It even this blot on the legal landscape was removed in late 2004 following the recommendations of the Justice System Review Committee,
chaired by Justice Norman Wade Miller,
ignoring for present purposes the embarrassing omission from Section 12 of the Constitution of sex or gender as a prohibited ground of discrimination.
Racial equality before the law today is substantially guaranteed at the constitutional level.
One peculiar defect remains Section 12 to prohibits applying any law and indiscriminate in a discriminatory manner.
But subsection six provides as follows. Nothing in subsection two of this section shall affect any discretion relating to the institution,
conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.
Having regard to Bermuda's distinctive legal history of applying the criminal
law in a manner which discriminate against people of colour on racial grounds,
it is difficult to fathom why the Crown should,
in effect be given constitutional permission to deploy the prosecutorial discretion in a discriminatory manner.
Bermuda's courts are today well-equipped to grant relief in respect of racial
discrimination in a society in which the descendants of slaves are now a clear majority.
Equality before the law and racial terms is substantially protected by Bermuda's Constitution and the Human Rights Act 1981.
The court sought no longer to be directly implicated in applying the law in an explicitly discriminatory manner.
Indirectly, the courts are implicated in administering the criminal law in a manner which engages men of
African or mixed African descent in the role of criminal defendant to a disproportionate extent.
A racial group, which comprises roughly 60 percent of the resident population,
or 70 percent of the Bermudian population, constitutes nearly 100 percent of the prison population.
Why this is so is essentially a socio political question.
Is racial discrimination occurring in the delivery of public services or in access to social and economic opportunities?
Is racial discrimination occurring in ways which cannot be challenged through legal action?
These are questions which a judge is not qualified to answer.
Fortunately,
the cadre of lawyers willing and able to bring human rights to life through legal action is stronger than at any time over the last 400 years.
It is to be hoped that no legally actionable wrongs are being ignored.
The courts, however, are not only required to enforce legal prohibitions on discrimination.
Judges must avoid discriminatory behaviour when dealing with all cases which come before the courts.
In 2006, Chief Justice Richard Ground published a code of conduct voluntarily adopted by Bermuda's Judiciary Guidelines for Judicial Conduct.
Paragraph 62 provides judges must conduct themselves with courtesy to all and must require similar courtesy of those appearing in court.
Judges should be alert to protect parties or witnesses from discourtesy or displays of prejudice based on racial,
sexual, religious or other impermissible grounds.
It would be naive to suggest that any New World Ex-Slave Society has consigned all traces of European dominated racism to the historical dustbin.
However, for Muta can be proud of the progress that has been made by both the courts and the country as a whole over the years.
But before policymakers, social activists and interested citizens settle into a blissful state of smug self-satisfaction.
Perhaps we should ask an important question if race is slowly moving off the legal stage, what is taking its place?
Class or wealth, gender, language, place of origin, religion, sexual orientation and sharing this reflection this evening,
I have chosen to reject the famous observation of the German philosopher Hegel rulers.
Statesmen nations are wont to be emphatically commended to the teaching which experience office in history,
but what experience and history teaches this that people and governments never
have learnt anything from history or acted on principles deduced from it?
Lawyers trained in English common law tradition have always had a love of history.
Some would say such lawyers have an excessive fascination with the past at the expense of an active and creative engagement with the present.
But common law at their best look back at judicial precedents from the past and seek to extract general
principles which have enduring value and to both apply them in the present and commend them to the future.
And so in this spirit, I conclude as follows.
Looking back, over Bermuda's 400 year judicial journey towards the land of non-racial justice, three important lessons may be learnt.
Firstly, the rule of law, however imperfect, has always prevailed despite the most challenging of circumstances.
Secondly, the courts reflecting Bermuda as a whole have for many years displayed a perturbing capacity for accommodating inequality before the law.
The third historical lesson is that we can learn from history should we choose to study it with the activist
aim of applying its lessons today and tomorrow to keep our footing on the next leg of this judicial journey,
we can hopefully look back and see how our forebears stumbled on their way and
perhaps how we are stumbling in different but not wholly dissimilar ways today.
Race matters As Professor Cornel West has so powerfully argued in the United States context,
where the legal challenges faced by the descendants of slaves as an ethnic minority are
far greater than the challenges faced by their Bermudian ethnic majority counterparts.
Former Commonwealth secretary general Guyanese born Sir Srinath Ramphele, looking at the underpinnings of racism more broadly,
has persuasively identified the process of othering as the common strand, which facilitates much of man's inhumanity to man.
And woman. He has reflected that in today's multiracial cities, and I would add islands.
It is all too easy to become alienated from one's fellows to perceive them as strangers,
transforming them into others from whom we can justify withholding what Wilberforce so well described as that equitable consideration.
And that fellow feeling, which are due from man to man.
Fortunately, reflecting on race, law and history from a judicial perspective,
the court's route map to the land of pure non racial justice is comparatively simple and clear.
Even if the route promises many twists and turns along the way, judges are required by the judicial oath to do right to all manner of people.
Bermudian courts must ultimately be guided by disposition and by an approach which is aptly captured by columnists Sunita Maharaj.
Commenting on a human rights law reform call reportedly made last month by a judge in Trinidad and Tobago, a sister New World ex slave society.
She recently wrote.
Ours is a very fragile culture of rights, which is not surprising given our history in which the very right to humanity was denied.
People are naturally afraid that in the coalescing around one particular issue, we might end up excluding or devaluing another.
It could happen. That is why we cannot discriminate between rights or elevate one above the other rights.
Our rights, our rights.