Your Lordship
I beg your indulgence for using the public media to express my views on your recent announcement of the list of Barristers you have recommended for appointment to the rank of Senior Counsel. My profound respect for the institution of silk, its significance and the values which this 406 years old tradition still embodies, drives me to bypass the decorum of this noble profession and to have recourse to such a course of action.
The appointment of Senior Counsel provides a clear and public identification of those barristers whose skills, legal experience and personal qualities mark them out as being the best within the legal profession. It is a recognition of professional eminence, with those achieving the rank being identified by their peers as leaders in the field of law they practice. For the public, it is a mark of excellence and of a continuing expectation that an individual will consistently perform to the highest standards.
As a practicing member of the Bar with 28 years standing, an expert on the United Nations Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW), a Consultant for the International Commission of Jurists and a member of the International Federation of Women Lawyers, I wish to express my serious concern and profound disappointment that not a single woman has been recommended to join the elite professional rank of Senior Counsel.
I am relieved to note that fortunately, overall much progress has been achieved and that we have moved on since the days when a Supreme Court in Australia rejected a woman's application for admission to the Bar on the ground that:
"Nature has tempered women as little for the juridical conflicts of the court room as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things."
It is a fact that today an impressive number of women have joined the Bar. This increase in women's participation in the legal profession reflects important social changes and perceptions about women's role in society. However, I note with regret that in 2010, women barristers in Mauritius continue to be absent from the senior echelons of our legal profession, an absence that comes alarmingly close to their exclusion.
I would like to endorse and associate myself with all the comments made by my learned friend Urmila Boolell on the opacity of the appointment exercise as well as her extensive reference to the in-depth reform of the appointment process of Queen's Counsel in the United Kingdom in order to increase equality and diversity among lawyers.
It is my personal and humble opinion that the glaring absence of women among the 16 Barristers whom you have recommended, can but lead to the perception of a flawed and discriminatory selection process.
In UK, the reform of the appointment process was partly inspired by an acknowledgement that women lawyers can be victims of either direct or indirect discrimination such as glass ceiling, confinement to certain areas of law, in turn resulting in the low number of women QCs. The prevailing patriarchal patterns and the persistence of sex discrimination resulting in the low number of women appointed as QCs was therefore specifically addressed.
In Mauritius, the Sex Discrimination Act (which I ironically recommended in my Task Force report and also drafted) as well as the more recently adopted Equal Opportunities Act are not enough to remedy the culture of discrimination experienced by women barristers.
Mauritius as a State party to the CEDAW Convention is under a legal obligation to respect, protect, promote and fulfill the right to non discrimination for women. The State is obligated to address prevailing gender relations and the persistence of gender-based stereotypes that affect women not only through individual acts by individuals but also in law and legal and societal structures and institutions. The State has the legal obligation to address past and present discrimination against women and to give them an equal start and to empower them by an enabling environment to achieve equality of results.
My Lord, I wish to stress that I am not asking that "gender" be a criteria of selection as there are enough competent women at the Bar who can legitimately aspire to take Silk. I am simply advocating the need for all barristers to be assessed against a common competency framework and a common standard of excellence.
When I address the under representation of women in politics, I often hear that a "torchlight" is needed to look for women interested in politics. In the case of the legal profession, no torchlight is fortunately required to look for the competent and highly respected women at the Bar. The expertise of my learned friend Urmila Boolell in the field of Commercial and Corporate law, those of my learned friends Marie Lourdes Lam Hung, Radha Gungaloo, Narghis Bundhun and my own in the area of Family law, cannot be ignored.
I am inclined to ask myself whether the appointment of Senior Counsel could be reserved to certain areas of law such as Criminal law where women are often under represented……or could it be Commercial law?....... Surely not as my learned friend Urmila Boolell has also been excluded. Is Family law perceived as "second class" law and the Family Division of the Supreme Court an "inferior" Court? Only a transparent appointment process with clear criteria and guidelines can provide the answers to these questions.
My Lord, it is important to be reminded that in UK , QCs are appointed across all disciplines including Family Law where women predominates. In July 2006, not less than 19 QCs specialising in Family Law were appointed.
My Lord, I wish to conclude by stressing that firstly, my stand is dictated by the need to mark the beginning of an era in which people realize that equality, equal justice and equal opportunity are complex ideas difficult to implement and achievable only by sustained efforts of those committed to those ideals. More importantly, I am motivated and inspired by the large number of young, bright and extremely talented women who have joined the legal profession full of hope to climb the ladder one of these days. They all expect the institutions defending people's rights to be "naturally" willing to promote equality, fairness and justice. Unfortunately, the reality is a long way to their idealistic view of the justice system.
Yours Respectfully
Pramila Patten
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