Proposition 53K3346

Projet de loi spéciale portant modification de la loi spéciale du 6 janvier 1989 sur la Cour constitutionnelle.

General information ¶

Submitted by

The Senate

Submission date

Jan. 15, 2014

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

EU law - national law constitutional court protection of privacy electronic document management electronic government gender equality international law - national law use of languages

Voting ¶

Voted to adopt

Groen CD&V Vooruit Ecolo LE PS | SP Open Vld MR

Abstained from voting

N-VA LDD VB

Party dissidents ¶

• Peter Luykx (CD&V) abstained from voting.

Contact form ¶

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Discussion ¶

March 19, 2014 | Plenary session (Chamber of representatives)

Full source

M is Bruno Van Grootenbrulle, rapporteur, renvoie au rapport écrit. Mrs Kristien Van Vaerenbergh, rapporteur, also refers to the written report.

The present text concerns the reform of the Constitutional Court. Since the Constitutional Court itself has made suggestions to modernise itself, one cannot, of course, oppose it.

Nevertheless, my group has serious concerns about what has been added and is under vote, namely: the minimum quota for women.

The special legislature, especially the Parliament – us and the senators – decides who will be appointed as a judge.

With the relevant provision, the special legislator implies that neither assembly has succeeded in appointing the right persons in the right place. That confession of guilt can count!

The introduction of quotas is therefore very ⁇ hypocritical, since in the past it was a consistent practice to disregard a minimum presence of women in the Constitutional Court.

Of course, this does not mean that our group is against the proportionate representation of women in top positions. The opposite is true. However, we believe that the rule of always selecting the most competent candidate must be used consistently and that thus the feminization of the magistrate is carried out in a natural way.

This has happened in the lower courts. In the lower courts there are no quotas. There is an increasing number of female judges being appointed.

In addition, we believe that quotas work counterproductively. The woman risks being labeled as an excuser or as someone who does not have sufficient capabilities but is chosen for a position because of her gender. The result is that women therefore have to prove themselves twice.

Therefore, our group will abstain from voting on the draft.

Colleagues, we all remember that at the beginning of this legislature, even in the period of the government of current affairs, we established gender quotas for the boards of directors of large companies. From the current point of view, this happened with an exchange majority, but that was of course not so at the time, because there were only exchange majorities at the time.

The measure has triggered a genuine social debate. In this context, some have rightly noted that the government has an exemplary role to play in creating equal opportunities. This is also the belief of our group. One of the reasons why we have submitted a special bill is to ensure that at least one in three female judges would sit in the Constitutional Court.

Indeed, colleagues, there are still many sectors in our society where the so-called glass ceiling is thick, where women are therefore seriously underrepresented in the higher levels, such as in the media, the universities and the public service.

The main reasons for referring to the Constitutional Court are for us the following.

First, it is a very striking example of a glass ceiling, because women are globally well represented in the judiciary, but the number of women decreases sharply as one looks higher on the ladder. This is important because, first, there can be no doubt that the pool of competent and ambitious women is sufficiently large, and, second, it shows that the factors that maintain such a glass ceiling and are situated, inter alia, in the method of selection and in a particular professional culture, are ⁇ persistent in this regard.

There has been a quota system in the Constitutional Court since 2003, in the sense that at least one female judge must sit in the court. But in practice, that minimum has long served as a maximum with the reasoning that there was already a woman sitting. Due to the recent appointment of Riet Leysen, for the first time in the history of the court, there are now only ten men and two women, one in six. The other is Trees Merckx-Van Goey.

The Court was established under the name Arbitration Court in 1984. That is thirty years ago and in all that time there were 4 female judges on a total of 47, which is 8.5%. Everything suggests that without the intervention of the legislator or anyone else, it can take generations before there are as many women as men seated in that court.

Quotas are horse remedies and we apply them because it is necessary, because we have tried other remedies and which have proved ineffective. This is clearly the case here.

The second reason why we focus on the Constitutional Court is the fact that the Court is the highest legal body with a unique role in the rule of law, the guardian of the Constitution. While other courts apply the laws we make, the Constitutional Court has the power to abolish them. To the extent that we use quotas from a representative logic, from an expectation of adequate representation of the female half of the population in such an important body, this is therefore a very good choice. Then, of course, there are still the imaging and role models, elements of invaluable value in an emancipation process. Among other things, for the students at our law schools, for the boys as well as the girls, the visible presence of women in legal top positions is an important element in their imagery of the legal world and their own career prospects.

The equal distribution of women and men is 50/50. For 12 judges, that would mean six women. That seems incredibly tight, but in fact it is no stricter than the requirement that there are six French-speaking and six Dutch-speaking judges or that there must be six former parliamentarians, three in each language group. So it could have been a legitimate choice to prescribe 6/6 or 40%, 5/8. Nevertheless, in our proposal, we have also pushed forward a modest proportion of one-third, at least four women out of 12, because there can therefore also be eight women seats in the future Constitutional Court.

In the proposal of our group, the one-third rule would be applied to each of the four groups of judges, so at least a female Flemish former politician – that is already there, at least a Flemish female jurist – that is also there, at least a French-speaking female former politician – that would then be the next appointment in the category of former politicians – and at least a French-speaking female jurist, the next appointment in that category.

The present proposal does not use that approach, it uses an aggregate approach that applies the one-third rule to the whole. In addition, there is a great deal of flexibility when entering into force. Since the last appointment was for a woman, two men can now be appointed before it must be a woman again and then two men before it must be a woman again. We can live with it, but I would find it very disappointing if the minimum speed in practice would once again prove to be the maximum speed and if it would become real male, male, female and male, male, female.

Colleagues, this is a matter in which we as parliamentarians have the ropes in our hands, or better you, because I will not be there anymore.

If we have a two-thirds majority for this quota scheme tomorrow, then I don’t understand how it could be that the next two appointments would still be men.

I would like to appeal to our French-speaking colleagues. If there were two separate constitutional courts, the Flemish Constitutional Court would already comply with the new quota system at this time, while the French-speaking Constitutional Court would not even respect the old rule of mixed composition.

You know that I am not a flamingot, my colleagues, but I can only establish this. I think it is time for this work to be done.