Equality of men and women revisited. Part I
The Spanish Constitutional Court is becoming one of the most popular institutions in the country. By “popular” I do not mean “generally well-liked”, but “frequently used” or mentioned in conversations and in the media, that is, in the middle of the political debate. On the other hand, as I mentioned in previous contributions, (here and here) this situation has not been sought by the Court. In fact, it usually tries to avoid such situations. Nevertheless, the political fight sometimes extends to Domenico Scarlatti Street (the head office of the Constitutional Court). After the ‘war of recusations’ (see previous contribution), the time had come to the Court to decide about two very important issues, boosted by the Government and approved by an overwhelming majority of the Parliament: the establishment of gender balance in the lists of candidates put forth by political parties (at least 40% of each sex, and no more than five consecutive candidates of the same sex within the same list), and the special disqualifications of aggressions against women by present or former spouses, (even if they were not living together). The same action, (slapping one’s partner) is punished differently based on the based on the gender of the victim: if a woman slaps her husband, the criminal law categorizes it as a minor offense (it is still a tort, but is accompanied by minimal punishment). By contrast, if a man slaps his former girlfriend, it is a tort that may be punished up to 1 year of imprisonment (see article 153 of the Criminal Code, as amended by Organic Law 1/2004). This latter Decision has not yet been published. It was a tie vote: of the 12 constitutional judges, 7 magistrates voted in favor of the constitutionality of the Law and 5 against. After the vote, the 5 dissenting magistrates announced their intention to redact their dissenting opinions, (recently however one of them suddenly passed away). So the date of the publication of this Decision remains uncertain. With this in mind, I will focus on the “gender-quota” Decision.
GENDER BALANCE IN ELECTORAL LISTS
With Decision No. 12/2008, the Constitutional Court validated the contested constitutionality of the so-called “electoral gender quota” articulated in Organic Law 3/2007. This Act amended the General Electoral Regime Law establishing that electoral lists (for all varieties of election, national, regional, local etc) ought to have and equilibrate composition according to gender. And “equilibrate” means at least a 40% of candidates of each sex in the whole list. Thus, this proportion must be respected in each stretch of 5 candidates within the same list. In the absence of such a provision, a political party selecting 20 candidates could, for example, designate 10 candidates of one gender for the first 10 positions (where there is a better chance of getting elected), and the select members of the other gender for the remaining 10 positions. However, it has become usual for parties to use “zipper lists”: woman-man-woman-man etc.
In the process, as well as in the text of the Decision, plaintiffs argued that the electoral gender quota offended several sections of the Spanish Constitution article 6 (political parties), article 22 (right of association), article 23 (right of participation), article 14 and article 9.2, (which both relate to equality rights). In reality however, two main constitutional principles where at stake: the prohibition of discrimination against on account of sex (article 14, ‘equality before the Law’) and the obligation of the public authorities to promote the effective equality of individuals (article 9.2, ‘equality in Law’ or ‘effective equality’).
The main legal argument of the Constitutional Court (legal arguments 2-4) was based on article 9.2 of the Spanish Constitution, which holds that “It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove the obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life”.
Other Constitutional and Supreme Courts have had to manage similar situations in their respective countries. In Italy and France, for example, it a constitutional amendment was necessary to permit the establishment of a similarly gender-based quota. The Italian case is quite similar to the Spanish one. In fact article 9.2 is directly inspired by article 3 of the Italian Constitution, and article 23 of the Spanish Constitution (which enshrines the right to participate in public affairs) is quite similar to article 51 of the Italian Constitution.
Was the legal reasoning of the Spanish Constitutional Court different to the one of its Italian counterpart? As a matter exception, the Constitutional Court analyzed the question including the Comparative Law arguments and argued, that the Spanish Constitution allows differential treatment on the basis of gender whereas the Italian court did not, prior to its reform. In fact, on the one hand, article 3.2 of the Italian Constitution refers to the obligation of the public authorities to remove the obstacles of “economic and social order” which prevent the full political participation of individuals. On the other hand, article 9.2 of the Spanish Constitution leaves open the door to the nature of such obstacles (not only of economic or social order). Consequently, the Constitutional Court assumed that “article 9.2 deals expressly with the political participation and to the idea of removing obstacles, the Constitution adds, as well, “promote” and “facilitate”” (legal argument 2). The Constitution, the court reasoned, empowers public authorities to reach not only “legal equality” or “equality before Law” but also the “substantive equality, because only from that point of depart it is possible to reach effectively the free development of the personality” (legal argument 4).
However, the Decision implicitly concludes that electoral quotas do not involve a “positive action” or “positive discrimination”. Had the court concluded so, it would have had to find a constitutional justification of such difference of treatment. Instead, the court justified the legitimacy of the law, based on article 9.2 of the Constitution, which obliges political parties to act in a concrete way. By keeping the legal nature of this action undefined, the Court arguably constitutionalized the use of political parties as a means to reach effective equality between men and women. The contested Organic Law does not prohibit specific men or women from candidacy, nor does it expel anyone in particular from the Parliament. Rather, it regulates the way in which political parties may compose their electoral lists.
The only dissenting opinion holds that it is constitutionally valid for political parties to create rules that ensure the participation of women in electoral lists (through, for example, “zipper lists”), but that the imposition by Organic Law of any gender-based quota is contrary to the Constitution, (in particular articless 6, 22, and 23.2.
As previously mentioned, in other European countries where similar cases were decided by their respective Constitutional Courts, like France (in 1999) or Italy (2003), a constitutional amendment was required to permit so-called “parity laws”. In the United Kingdom, the imposition of electoral quotas was characterized as a violation of the right to access on equal terms to public office of the excluded candidates. The UK example is different because of the electoral system for the House of Commons: only one candidate may be elected in each constituency by the simple majority system (first past the post). So each political party decides whether they present a male or female as candidates. The Sex Discrimination –Election Candidates– Act of 2002 allows the adoption of such measures of positive action on a temporary basis (until 2015).
If the issue of gender-based quotas found its way to the European Court of Human Rights, the court would likely frame its discussion around the issue firstly of whether the regulation of the election process constitutes a restriction in the enjoyment of any conventional right (see, for instance, articles 11 and 14 of the European Convention on Human Rights,) and, secondly whether gender-based quotas constitute a legitimate aim “necessary” in a democratic society.