1 00:00:00,890 --> 00:00:06,110 For those of you who don't know me, my name is Chen Foley, I'm a litigation associate, Cedric Chadli. 2 00:00:06,110 --> 00:00:09,260 I'm also the chair of the board of the Centre for Justice. 3 00:00:09,260 --> 00:00:16,040 And it's my pleasure to welcome you to this series of presentations this evening on race, law and history. 4 00:00:16,040 --> 00:00:24,590 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, 5 00:00:24,590 --> 00:00:28,970 and it has been organised with the cooperation of the Centre for Justice. 6 00:00:28,970 --> 00:00:35,720 What makes this event different from the other events that have been organised in the past is that it's designed for 7 00:00:35,720 --> 00:00:43,730 members of the bar to explore the theme of racial justice within the context of Bermuda's legislative and judicial history. 8 00:00:43,730 --> 00:00:52,370 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. 9 00:00:52,370 --> 00:01:02,560 I also wish to acknowledge the work of Alexa Verdi, who sitting in the front. 10 00:01:02,560 --> 00:01:07,360 Alexei is a Bermudian lawyer, and she's also a Ph.D. candidate at Oxford University, 11 00:01:07,360 --> 00:01:13,270 and she had the vision of creating this evening's event, although the preparation, 12 00:01:13,270 --> 00:01:18,730 I should say, although preparation was underway for this event in advance of the UK Supreme 13 00:01:18,730 --> 00:01:25,870 Court decision in Roberts and the Commissioner of Police of the Metropolis. 14 00:01:25,870 --> 00:01:32,680 It's worthwhile, I think, mentioning that the speech of Lady Hale is a stark reminder to many of us that the law 15 00:01:32,680 --> 00:01:37,840 doesn't always respond to issues of race and racial justice in the way that we expect. 16 00:01:37,840 --> 00:01:42,970 And it's for this reason that there's tremendous benefit in gathering together for a purpose such as 17 00:01:42,970 --> 00:01:49,570 this to thoughtfully consider amongst our friends and colleagues the reality of how issues of race, 18 00:01:49,570 --> 00:01:56,800 law and history in Bermuda have helped to shape our jurisdiction. There are three points of housekeeping that I just want to mention briefly. 19 00:01:56,800 --> 00:01:59,590 The first is that as a courtesy to all the speakers, 20 00:01:59,590 --> 00:02:04,630 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? 21 00:02:04,630 --> 00:02:07,240 Please turn it off. 22 00:02:07,240 --> 00:02:15,680 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, 23 00:02:15,680 --> 00:02:19,960 so please remember to sign up on the sign up sheets at the back of the hall. 24 00:02:19,960 --> 00:02:23,410 Time permitting will have a Q&A session and I'll come back towards the end 25 00:02:23,410 --> 00:02:28,420 with some guidance for how we can facilitate that at the end of the programme. 26 00:02:28,420 --> 00:02:32,320 At this time, I would like to welcome the Honourable Chief Justice of Bermuda, 27 00:02:32,320 --> 00:02:37,000 Dr. Ian Caroli, to the podium who provide this evening's keynote address. 28 00:02:37,000 --> 00:02:45,220 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. 29 00:02:45,220 --> 00:02:55,420 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. 30 00:02:55,420 --> 00:03:14,140 Please welcome our Chief Justice. Good evening, and thank you very much for that kind introduction, Mr Foley. 31 00:03:14,140 --> 00:03:19,470 It's great pleasure to be able to participate in this event. 32 00:03:19,470 --> 00:03:29,700 The 400th anniversary year of the permanent establishment of courts here is an appropriate time to reflect on race, law and history in Bermuda. 33 00:03:29,700 --> 00:03:37,830 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. 34 00:03:37,830 --> 00:03:49,680 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. 35 00:03:49,680 --> 00:03:56,910 It is a tale I should stress at the outset, not told by an erudite legal historian, but by an earthy, 36 00:03:56,910 --> 00:04:03,750 legal tradesman who occasionally likes to putter in the Garden of Practitioners scholarship. 37 00:04:03,750 --> 00:04:09,720 According to my version of the story, the judicial travellers have overall made steady, 38 00:04:09,720 --> 00:04:19,620 albeit sometimes halting progress towards that idyllic legal land, which is watered by a spring of pure and undiluted non-racial justice. 39 00:04:19,620 --> 00:04:25,500 I would decline to follow for present purposes the somewhat cynical view of New World 40 00:04:25,500 --> 00:04:32,160 Social Progress offered by Max Romeo in this popular reggae song one step forward, 41 00:04:32,160 --> 00:04:40,310 two steps backwards in Babylon. Before beginning the story proper, however, 42 00:04:40,310 --> 00:04:45,440 it is necessary to explain how I conceived the issue of race to be relevant to the judicial function 43 00:04:45,440 --> 00:04:57,190 of the courts and why I consider non-racial justice to be still an ideal which has yet to be realised. 44 00:04:57,190 --> 00:05:04,570 Why do I suggest that in 2016, the courts are still churning towards an ideal of non-racial justice? 45 00:05:04,570 --> 00:05:11,080 The view that human rights provisions serve a non-legal function of setting ethical standards has been 46 00:05:11,080 --> 00:05:18,790 persuasively put by the economics philosopher Amartya Sen as follows Proclamations of human rights. 47 00:05:18,790 --> 00:05:23,530 Even those stated in the form of recognising the existence of things that are called 48 00:05:23,530 --> 00:05:30,250 human rights are really strong ethical pronouncements about what should be done. 49 00:05:30,250 --> 00:05:38,890 Legislating to create human rights protections and to prohibit human rights infringements is an important concrete and finite step. 50 00:05:38,890 --> 00:05:45,520 But it does not guarantee that the protected rights will in practise be respected fully or at all. 51 00:05:45,520 --> 00:05:53,830 Indeed, the courts are given the vital role under our legal system of enforcing the legal protections against human rights abuses, 52 00:05:53,830 --> 00:05:59,170 including discrimination on the grounds of race. In today's legal terms, 53 00:05:59,170 --> 00:06:04,930 most discussions of race in the law are shaped by 20th century human rights provisions in international 54 00:06:04,930 --> 00:06:10,390 conventions and national constitutions designed to prohibit discrimination on various grounds, 55 00:06:10,390 --> 00:06:16,510 including race. This modern approach of prohibiting multiple grounds of discrimination in a 56 00:06:16,510 --> 00:06:22,390 holistic fashion is apposite for the judicial perspective of race and the law. 57 00:06:22,390 --> 00:06:29,290 All forms of discrimination based on the personal characteristics of litigants ought to be shunned 58 00:06:29,290 --> 00:06:34,990 by the Bermudian courts because equal treatment is central to the modern judicial function. 59 00:06:34,990 --> 00:06:42,820 The British derived judicial oath reads as follows I do swear that I will well and truly serve Her Majesty Queen Elizabeth, 60 00:06:42,820 --> 00:06:54,220 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, 61 00:06:54,220 --> 00:07:05,620 affection or ill will. So help me God. The need for judges to be sensitive about the multidimensional nature of discrimination is today well. 62 00:07:05,620 --> 00:07:13,750 Canadian Chief Justice Beverley McLauchlan has eloquently described this aspect of the judicial function in the following way. 63 00:07:13,750 --> 00:07:24,100 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. 64 00:07:24,100 --> 00:07:27,670 Justice must also be delivered in an impartial manner. 65 00:07:27,670 --> 00:07:35,890 One which is free from prejudice or false assumptions about cultural difference in a world marked by pluralism. 66 00:07:35,890 --> 00:07:43,660 The judge must become the one who understands every voice, any historical review of race and the law, 67 00:07:43,660 --> 00:07:50,260 no matter how superficial, must not only have regard to the wider backdrop of discrimination as a whole. 68 00:07:50,260 --> 00:07:55,870 It must also take into account the extent to which at various points in history, 69 00:07:55,870 --> 00:08:01,510 the concept of equality before the law was defined and recognised not just 70 00:08:01,510 --> 00:08:06,670 locally but in the wider world with which Bermuda was most closely involved. 71 00:08:06,670 --> 00:08:12,640 It goes without saying that in a new world society with a history of both slavery and segregation, 72 00:08:12,640 --> 00:08:21,010 the law at one time did not consider even overt racial discrimination to be as offensive as we consider it today. 73 00:08:21,010 --> 00:08:29,890 The need for judges in a society such as Bermuda to be mindful of socio legal history was perhaps best expressed in a Caribbean 74 00:08:29,890 --> 00:08:39,400 context some years ago by the now dean of the Faculty of Law at UC Santa Gaston Trinidad Rosemary Belen Toine as follows. 75 00:08:39,400 --> 00:08:47,560 Just as the study of the English Common Law must examine the historical evolution of that law, so to my start, 76 00:08:47,560 --> 00:08:55,840 so too must the study of West Indian law appreciate the birth of our own law grounded in slavery and colonialism. 77 00:08:55,840 --> 00:09:07,300 The Caribbean man and judge has an active role to play in reinterpreting the legal framework to build a more indigenous and just society. 78 00:09:07,300 --> 00:09:15,490 The Bermudian judiciary's journey in pursuit of the ideal of pure justice is a story which can conveniently be divided into three chapters. 79 00:09:15,490 --> 00:09:23,980 The Pre Emancipation Period 16 16 to 18 30 for the Post Emancipation Period 1834 to 1968. 80 00:09:23,980 --> 00:09:31,090 The Post 1968 Constitution period 1968 to 2016. 81 00:09:31,090 --> 00:09:40,600 Assuming I do not run out of time, Bermuda began its life in constitutional terms as an appendage of Virginia. 82 00:09:40,600 --> 00:09:45,070 The island was legally created or constituted by amendment and 16 12 to early. 83 00:09:45,070 --> 00:09:49,630 A royal charter is granted by the by King James, the first to the Virginia company. 84 00:09:49,630 --> 00:09:53,560 The Virginia company sold its rights in Bermuda for 2000 pounds. 85 00:09:53,560 --> 00:10:00,220 Great bargain to various London merchants who returned the islands to the Crown in return for the grant on June 29th. 86 00:10:00,220 --> 00:10:09,970 16:15 of Letters patent to the governor and company of the City of London for the plantation of the Summer Islands. 87 00:10:09,970 --> 00:10:16,660 All the king's subjects who migrated to Bermuda and their children born there were granted all liberties, 88 00:10:16,660 --> 00:10:22,450 franchises and immunities of free denizens and natural subjects within any of our dominions. 89 00:10:22,450 --> 00:10:26,950 To all intents and purposes, as if they had been abiding and born within this, 90 00:10:26,950 --> 00:10:32,290 our Kingdom of England or in any other of our dominions as far as possible, 91 00:10:32,290 --> 00:10:43,120 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. 92 00:10:43,120 --> 00:10:51,100 Bermuda legally began as an English settlement whose residents included non English people regulated under a constitutional system, 93 00:10:51,100 --> 00:10:57,160 which only formally recognised the liberties of English subjects and only fully English men. 94 00:10:57,160 --> 00:11:07,450 In the first 100 years of the court's existence, persons of indeterminate status not only included all women African slaves, Native Americans, Irish, 95 00:11:07,450 --> 00:11:14,380 Scottish and Welsh indentured servants who are often prisoners captured in the wars which created the United Kingdom, 96 00:11:14,380 --> 00:11:22,010 where all people of indeterminate legal status because of their race or ethnicity broadly defined. 97 00:11:22,010 --> 00:11:31,100 The constitutional order, which legitimised legal discrimination on racial grounds was from time to time subjected to vigorous challenge, 98 00:11:31,100 --> 00:11:36,230 but the rule of law under a flawed constitutional order always prevailed. 99 00:11:36,230 --> 00:11:42,170 There would be a number of conspiracies during the Premam suppression era aimed at overthrowing the established order, 100 00:11:42,170 --> 00:11:52,120 which were foiled and often prompted explicitly racial legislation aimed at preventing rebellion by slaves and free college. 101 00:11:52,120 --> 00:11:58,060 How one must ask, did the courts operate in practise during this era? 102 00:11:58,060 --> 00:12:03,940 On June the 15th 16 16, the Court of General Tsai's first sat in St George's. 103 00:12:03,940 --> 00:12:06,190 Various orders were made in civil cases. 104 00:12:06,190 --> 00:12:16,360 However, the first criminal jury trial also took place after an accused man was charged and pleaded not guilty in CFE. 105 00:12:16,360 --> 00:12:24,280 Hallet edited Butler's history of the Bermuda is the first formal jury trial in Bermuda is described as follows. 106 00:12:24,280 --> 00:12:31,870 This is a translation into modern, modern English. The original version is not so easy to digest. 107 00:12:31,870 --> 00:12:40,120 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. 108 00:12:40,120 --> 00:12:48,760 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. 109 00:12:48,760 --> 00:12:54,400 But one case arising was that of a man by the name of John Wood, who was arraigned and condemned. 110 00:12:54,400 --> 00:13:03,460 He was an abject, hopeless and open, open mouthed Frenchman who in a drunken state had spoken cheekily and arrogantly to the governor. 111 00:13:03,460 --> 00:13:11,290 Wood was arrested and charged with mutiny and rebellion, put to trial and sentence by the person who had been appointed judge. 112 00:13:11,290 --> 00:13:18,940 The governor himself never took on the role of judge, as he was well aware of his own incompetence in that respect. 113 00:13:18,940 --> 00:13:28,150 The condemned man was hanged some two days after the trial. Clearly, not only did free speech have its limits. 114 00:13:28,150 --> 00:13:31,840 The principle that justice delayed is justice denied was given. 115 00:13:31,840 --> 00:13:43,630 What now seems overly zealous recognition of a cursory review of sentences imposed by the courts in the pre emancipation era suggests, 116 00:13:43,630 --> 00:13:45,430 perhaps unsurprisingly, 117 00:13:45,430 --> 00:13:53,350 that English male citizens were treated far more leniently for criminal infractions than were persons of indeterminate legal status. 118 00:13:53,350 --> 00:14:00,820 Somewhat surprising is the fact that even though special measures were taken to deal with serious rebellions, 119 00:14:00,820 --> 00:14:10,510 even slaves were afforded the right of being tried in a court of law by a jury and in ordinary cases. 120 00:14:10,510 --> 00:14:20,980 More surprising still is the discovery that courts comprised entirely of white Bermudian men were motivated to dispense justice in a fair manner. 121 00:14:20,980 --> 00:14:27,430 On the fifth of June 17 30 zero, Sally Bassett was sentenced by the Chief Justice to be burned at the stake 122 00:14:27,430 --> 00:14:32,140 during a period when various slave owners were being poisoned by their slaves. 123 00:14:32,140 --> 00:14:37,270 She had been convicted by a jury of 12 in the court of generalises three days earlier. 124 00:14:37,270 --> 00:14:48,640 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. 125 00:14:48,640 --> 00:14:53,440 Despite the fact that seven white witnesses and one slave gave evidence against 126 00:14:53,440 --> 00:14:59,410 her was the same jury which had convicted Sally Bassett two days earlier. 127 00:14:59,410 --> 00:15:06,430 Was it the same jury who convicted Sally Bassett two days earlier and did they feel that one conviction was enough? 128 00:15:06,430 --> 00:15:12,220 Court records reveal several instances of the death penalty not being carried out in respect of slaves, 129 00:15:12,220 --> 00:15:16,980 typically in response to emotional pleas by their owners. 130 00:15:16,980 --> 00:15:22,860 There are also interesting instances of judicial dissent. 131 00:15:22,860 --> 00:15:25,170 For instance, at the December 18, 16, 132 00:15:25,170 --> 00:15:36,090 72 72 assizes the court by a majority order that notices be posted for the return within 15 days of a runaway slave blackjack, 133 00:15:36,090 --> 00:15:38,850 after which period he could be shot. 134 00:15:38,850 --> 00:15:45,540 The governor and secretary of the council, sitting in a judicial capacity, dissented from the second limb of the decision. 135 00:15:45,540 --> 00:15:51,870 It is unclear. A cynic might interpose whether this dissent was based on concerns for the life of black. 136 00:15:51,870 --> 00:15:56,670 The property interests of his owner or the rule of law. 137 00:15:56,670 --> 00:16:03,660 And unambiguously liberal and impressive dissent occurred on Christmas Eve 16 73, when Sir John Hayden, 138 00:16:03,660 --> 00:16:12,390 Cornelius White and Thomas Lee Croft were in a minority who voted against summary execution after stigmatisation 139 00:16:12,390 --> 00:16:20,700 and whipping for several Negroes presented to them by a grand inquest as guilty of a dangerous plot, 140 00:16:20,700 --> 00:16:28,650 although the majority decision apparently prevailed. The governor with Mr Lee Craft concurring suggested that as no blood had been shed, 141 00:16:28,650 --> 00:16:33,420 the leading conspirator should be branded with the letter R and the rest were whipped and sent. 142 00:16:33,420 --> 00:16:45,120 Home Secretary White voted for trial by a petit jury, presumably believing that even slaves should be permitted due legal process. 143 00:16:45,120 --> 00:16:50,340 There was unsurprisingly no apparent attempt in Slave-Owning, Bermuda, 144 00:16:50,340 --> 00:16:56,430 to follow what possibly would have been viewed as the morally valuable but economically 145 00:16:56,430 --> 00:17:03,300 catastrophic English human rights precedent of Somerset's case decided by Lord Mansfield. 146 00:17:03,300 --> 00:17:11,520 Chief Justice Mansfield, intriguingly and coincidentally was at the time raising a black great niece, 147 00:17:11,520 --> 00:17:17,390 Dido dramatically portrayed in the 2013 film Belle. 148 00:17:17,390 --> 00:17:27,470 On 22nd of June 1772, Lord Mansfield gave a pivotal ruling which helped to inspire the abolition movement throughout the 149 00:17:27,470 --> 00:17:36,410 British Empire and also contributed to a tidal wave which would eventually roll onto Bermuda shores. 150 00:17:36,410 --> 00:17:41,600 The egalitarian spirit of that movement was reflected in one pre emancipation case. 151 00:17:41,600 --> 00:17:49,130 In particular, an act to ameliorate the condition of slaves and free persons of colour was passed in 1827, 152 00:17:49,130 --> 00:17:54,860 which made free coloured irons and slaves competent witnesses before the court, 153 00:17:54,860 --> 00:18:03,470 but did so in discriminatory terms, requiring them to produce certificates of good character, a requirement not applicable to whites. 154 00:18:03,470 --> 00:18:09,050 Chief Justice James Christie asked in an opening their sizes on November 4th, 1827, 155 00:18:09,050 --> 00:18:18,230 suggested that it would be extraordinary that the higher standard of conduct should be exacted from a class of persons whose servile condition, 156 00:18:18,230 --> 00:18:27,140 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. 157 00:18:27,140 --> 00:18:32,720 The one white or notoriously bad, the other coloured not of generally good character. 158 00:18:32,720 --> 00:18:36,710 The first should be admitted as a legal witness in the last repudiated. 159 00:18:36,710 --> 00:18:44,540 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, 160 00:18:44,540 --> 00:18:53,090 as applied to persons who were either actually slaves or who have recently emerged into freedom from a servile position. 161 00:18:53,090 --> 00:18:57,560 Aston has a lawyer at the turn of the century had defended John Stevenson, 162 00:18:57,560 --> 00:19:07,370 the Irish Methodist minister convicted of preaching to slaves in violation of an act passed shortly after his controversial arrival in Bermuda. 163 00:19:07,370 --> 00:19:14,030 Estan impressively but unsuccessfully had raised freedom of conscience as a defence, 164 00:19:14,030 --> 00:19:21,180 possibly advancing the first explicit human rights argument in Bermuda's legal history. 165 00:19:21,180 --> 00:19:31,470 In 1825, while still Chief Justice Ashton donated the land upon which slaves would build the Cops Hill Methodist Church. 166 00:19:31,470 --> 00:19:33,480 Thus, even before emancipation, 167 00:19:33,480 --> 00:19:40,380 when the courts were still required to work within a constitutional framework which formally sanctioned racial discrimination, 168 00:19:40,380 --> 00:19:51,630 Bermuda produced a leading lawyer and senior judge willing to adopt a creative and activist approach which favoured non-racial justice. 169 00:19:51,630 --> 00:20:02,630 The 1830 for Emancipation Act not only ended slavery, but also ended the era of explicitly racially discriminatory legislation. 170 00:20:02,630 --> 00:20:11,420 Little mentioned is the fact that the number two act of 1834 in complementary terms to number one, 171 00:20:11,420 --> 00:20:16,250 guaranteed equal access to the law without regard to race. 172 00:20:16,250 --> 00:20:21,170 This implies that not only was slavery itself limited to persons of African descent, 173 00:20:21,170 --> 00:20:28,820 but that even free people of colour did not enjoy equal rights before the law. 174 00:20:28,820 --> 00:20:36,590 Looking at the provisions of the 1834 Emancipation Act number two through 21st century lands, 175 00:20:36,590 --> 00:20:45,050 it is difficult to understand how or why policies of racial segregation were subsequently introduced at a precise point in history, 176 00:20:45,050 --> 00:20:53,120 which it has not been possible to identify without being challenged for contravening the equal rights provisions of this landmark legislation. 177 00:20:53,120 --> 00:20:54,980 Was the Act forgotten? 178 00:20:54,980 --> 00:21:03,380 Was it studiously ignored assuming its terms reflected its short title and that it merely provided for the liberation of former slaves? 179 00:21:03,380 --> 00:21:11,590 The Emancipation Act number one, was enforced in the enterprise case in 1835, which will be addressed by another speaker. 180 00:21:11,590 --> 00:21:19,090 It remains for other researchers to identify any other notable case or cases between 1834 and 1968, 181 00:21:19,090 --> 00:21:25,570 when non-racial justice became constitutionally protected in modern terms where the courts were required 182 00:21:25,570 --> 00:21:33,070 to consider the legality of the racially discriminatory practises in relation to access to facilities, 183 00:21:33,070 --> 00:21:40,360 employment and the disposition of property by will, which undoubtedly existed through much, if not all, of that period. 184 00:21:40,360 --> 00:21:44,770 But perhaps the courts of Bermuda can take credit for the progressive pamphlet published in 185 00:21:44,770 --> 00:21:53,500 London by then retired Chief Justice James Christy yesterday in 1837 and sent to the Governor, 186 00:21:53,500 --> 00:21:56,950 Council and Assembly a plan for the religious, 187 00:21:56,950 --> 00:22:04,660 moral and general instruction and the beneficial management of the concerns of the emancipated people of colour of the Bermuda's. 188 00:22:04,660 --> 00:22:08,170 The apparent silence of the courts and racial discrimination, 189 00:22:08,170 --> 00:22:17,410 which was arguably prohibited by the Emancipation Act number two for over 150 years, serves to illustrate an important point. 190 00:22:17,410 --> 00:22:26,770 Noble ideals enshrined in written or unwritten laws mean little and real were world terms unless they are either reflected 191 00:22:26,770 --> 00:22:36,570 in voluntary human conduct or given vitality by lawyers and litigants enforcing human rights protections in the courts. 192 00:22:36,570 --> 00:22:45,450 Under the Bermuda Constitutional Order 1968, the Bermuda and courts were given for the first time the power to administer justice within 193 00:22:45,450 --> 00:22:51,480 a legal framework under which all legal proceedings were formally equal before the law. 194 00:22:51,480 --> 00:22:57,060 Section 12 of the Bermuda Constitution both prohibited parliament from enacting laws which discriminated 195 00:22:57,060 --> 00:23:02,790 on the grounds of race and prohibited the application of any laws in a discriminatory manner. 196 00:23:02,790 --> 00:23:07,200 The Human Rights Act 1981 prohibited discrimination in relation to employment, 197 00:23:07,200 --> 00:23:15,930 accommodation, the disposition of property and access to other services. Indirect racial discrimination perpetrated perpetrated through the property 198 00:23:15,930 --> 00:23:20,370 vote was finally dispensed with voting rights and access to public offices, 199 00:23:20,370 --> 00:23:27,030 including juries where available to all without regard to property status and indirectly race. 200 00:23:27,030 --> 00:23:34,290 Was this not nirvana? The route to the Promised Land, where pure non-racial justice flowed like milk and honey, 201 00:23:34,290 --> 00:23:38,580 was now impeded by very few obvious constitutional obstacles. 202 00:23:38,580 --> 00:23:46,260 The Constitution itself blessed parish based boundaries, which gave greater weight to each vote in small, predominantly white constituencies, 203 00:23:46,260 --> 00:23:52,890 notably Paget, when contrasted with the weight of each vote in large, predominantly black parishes such as Warwick. 204 00:23:52,890 --> 00:23:58,320 This anomaly was effectively removed by the creation of single seat constituencies of, 205 00:23:58,320 --> 00:24:05,760 as far as possible, equal size through amendments to the Constitution introduced in 2001. 206 00:24:05,760 --> 00:24:15,810 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, 207 00:24:15,810 --> 00:24:22,170 predominantly white juries. This represented backsliding in both philosophical and practical terms, 208 00:24:22,170 --> 00:24:29,900 but the legislative measure at least deployed the subtlety of approach which Bermuda's 1968 constitution demanded. 209 00:24:29,900 --> 00:24:37,760 It even this blot on the legal landscape was removed in late 2004 following the recommendations of the Justice System Review Committee, 210 00:24:37,760 --> 00:24:40,640 chaired by Justice Norman Wade Miller, 211 00:24:40,640 --> 00:24:49,850 ignoring for present purposes the embarrassing omission from Section 12 of the Constitution of sex or gender as a prohibited ground of discrimination. 212 00:24:49,850 --> 00:24:55,880 Racial equality before the law today is substantially guaranteed at the constitutional level. 213 00:24:55,880 --> 00:25:05,150 One peculiar defect remains Section 12 to prohibits applying any law and indiscriminate in a discriminatory manner. 214 00:25:05,150 --> 00:25:13,310 But subsection six provides as follows. Nothing in subsection two of this section shall affect any discretion relating to the institution, 215 00:25:13,310 --> 00:25:24,200 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. 216 00:25:24,200 --> 00:25:28,070 Having regard to Bermuda's distinctive legal history of applying the criminal 217 00:25:28,070 --> 00:25:32,450 law in a manner which discriminate against people of colour on racial grounds, 218 00:25:32,450 --> 00:25:35,510 it is difficult to fathom why the Crown should, 219 00:25:35,510 --> 00:25:44,860 in effect be given constitutional permission to deploy the prosecutorial discretion in a discriminatory manner. 220 00:25:44,860 --> 00:25:49,030 Bermuda's courts are today well-equipped to grant relief in respect of racial 221 00:25:49,030 --> 00:25:54,370 discrimination in a society in which the descendants of slaves are now a clear majority. 222 00:25:54,370 --> 00:26:02,260 Equality before the law and racial terms is substantially protected by Bermuda's Constitution and the Human Rights Act 1981. 223 00:26:02,260 --> 00:26:09,800 The court sought no longer to be directly implicated in applying the law in an explicitly discriminatory manner. 224 00:26:09,800 --> 00:26:16,390 Indirectly, the courts are implicated in administering the criminal law in a manner which engages men of 225 00:26:16,390 --> 00:26:22,480 African or mixed African descent in the role of criminal defendant to a disproportionate extent. 226 00:26:22,480 --> 00:26:27,430 A racial group, which comprises roughly 60 percent of the resident population, 227 00:26:27,430 --> 00:26:34,270 or 70 percent of the Bermudian population, constitutes nearly 100 percent of the prison population. 228 00:26:34,270 --> 00:26:39,410 Why this is so is essentially a socio political question. 229 00:26:39,410 --> 00:26:46,670 Is racial discrimination occurring in the delivery of public services or in access to social and economic opportunities? 230 00:26:46,670 --> 00:26:51,800 Is racial discrimination occurring in ways which cannot be challenged through legal action? 231 00:26:51,800 --> 00:26:56,360 These are questions which a judge is not qualified to answer. 232 00:26:56,360 --> 00:26:57,470 Fortunately, 233 00:26:57,470 --> 00:27:07,580 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. 234 00:27:07,580 --> 00:27:13,160 It is to be hoped that no legally actionable wrongs are being ignored. 235 00:27:13,160 --> 00:27:18,680 The courts, however, are not only required to enforce legal prohibitions on discrimination. 236 00:27:18,680 --> 00:27:24,560 Judges must avoid discriminatory behaviour when dealing with all cases which come before the courts. 237 00:27:24,560 --> 00:27:35,420 In 2006, Chief Justice Richard Ground published a code of conduct voluntarily adopted by Bermuda's Judiciary Guidelines for Judicial Conduct. 238 00:27:35,420 --> 00:27:45,530 Paragraph 62 provides judges must conduct themselves with courtesy to all and must require similar courtesy of those appearing in court. 239 00:27:45,530 --> 00:27:52,280 Judges should be alert to protect parties or witnesses from discourtesy or displays of prejudice based on racial, 240 00:27:52,280 --> 00:27:56,090 sexual, religious or other impermissible grounds. 241 00:27:56,090 --> 00:28:05,570 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. 242 00:28:05,570 --> 00:28:13,670 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. 243 00:28:13,670 --> 00:28:21,350 But before policymakers, social activists and interested citizens settle into a blissful state of smug self-satisfaction. 244 00:28:21,350 --> 00:28:32,140 Perhaps we should ask an important question if race is slowly moving off the legal stage, what is taking its place? 245 00:28:32,140 --> 00:28:44,370 Class or wealth, gender, language, place of origin, religion, sexual orientation and sharing this reflection this evening, 246 00:28:44,370 --> 00:28:50,410 I have chosen to reject the famous observation of the German philosopher Hegel rulers. 247 00:28:50,410 --> 00:28:57,610 Statesmen nations are wont to be emphatically commended to the teaching which experience office in history, 248 00:28:57,610 --> 00:29:02,290 but what experience and history teaches this that people and governments never 249 00:29:02,290 --> 00:29:08,860 have learnt anything from history or acted on principles deduced from it? 250 00:29:08,860 --> 00:29:13,630 Lawyers trained in English common law tradition have always had a love of history. 251 00:29:13,630 --> 00:29:23,290 Some would say such lawyers have an excessive fascination with the past at the expense of an active and creative engagement with the present. 252 00:29:23,290 --> 00:29:29,320 But common law at their best look back at judicial precedents from the past and seek to extract general 253 00:29:29,320 --> 00:29:35,530 principles which have enduring value and to both apply them in the present and commend them to the future. 254 00:29:35,530 --> 00:29:39,580 And so in this spirit, I conclude as follows. 255 00:29:39,580 --> 00:29:48,520 Looking back, over Bermuda's 400 year judicial journey towards the land of non-racial justice, three important lessons may be learnt. 256 00:29:48,520 --> 00:29:56,860 Firstly, the rule of law, however imperfect, has always prevailed despite the most challenging of circumstances. 257 00:29:56,860 --> 00:30:08,530 Secondly, the courts reflecting Bermuda as a whole have for many years displayed a perturbing capacity for accommodating inequality before the law. 258 00:30:08,530 --> 00:30:15,430 The third historical lesson is that we can learn from history should we choose to study it with the activist 259 00:30:15,430 --> 00:30:21,710 aim of applying its lessons today and tomorrow to keep our footing on the next leg of this judicial journey, 260 00:30:21,710 --> 00:30:26,050 we can hopefully look back and see how our forebears stumbled on their way and 261 00:30:26,050 --> 00:30:31,690 perhaps how we are stumbling in different but not wholly dissimilar ways today. 262 00:30:31,690 --> 00:30:37,810 Race matters As Professor Cornel West has so powerfully argued in the United States context, 263 00:30:37,810 --> 00:30:42,940 where the legal challenges faced by the descendants of slaves as an ethnic minority are 264 00:30:42,940 --> 00:30:49,180 far greater than the challenges faced by their Bermudian ethnic majority counterparts. 265 00:30:49,180 --> 00:30:57,820 Former Commonwealth secretary general Guyanese born Sir Srinath Ramphele, looking at the underpinnings of racism more broadly, 266 00:30:57,820 --> 00:31:09,050 has persuasively identified the process of othering as the common strand, which facilitates much of man's inhumanity to man. 267 00:31:09,050 --> 00:31:17,080 And woman. He has reflected that in today's multiracial cities, and I would add islands. 268 00:31:17,080 --> 00:31:22,540 It is all too easy to become alienated from one's fellows to perceive them as strangers, 269 00:31:22,540 --> 00:31:32,410 transforming them into others from whom we can justify withholding what Wilberforce so well described as that equitable consideration. 270 00:31:32,410 --> 00:31:37,420 And that fellow feeling, which are due from man to man. 271 00:31:37,420 --> 00:31:42,010 Fortunately, reflecting on race, law and history from a judicial perspective, 272 00:31:42,010 --> 00:31:48,040 the court's route map to the land of pure non racial justice is comparatively simple and clear. 273 00:31:48,040 --> 00:31:56,860 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. 274 00:31:56,860 --> 00:32:06,160 Bermudian courts must ultimately be guided by disposition and by an approach which is aptly captured by columnists Sunita Maharaj. 275 00:32:06,160 --> 00:32:16,000 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. 276 00:32:16,000 --> 00:32:19,240 She recently wrote. 277 00:32:19,240 --> 00:32:28,450 Ours is a very fragile culture of rights, which is not surprising given our history in which the very right to humanity was denied. 278 00:32:28,450 --> 00:32:37,480 People are naturally afraid that in the coalescing around one particular issue, we might end up excluding or devaluing another. 279 00:32:37,480 --> 00:32:47,530 It could happen. That is why we cannot discriminate between rights or elevate one above the other rights. 280 00:32:47,530 --> 00:32:52,297 Our rights, our rights.