The application of the parity law which imposes the balanced presence of both sexes in future appointments at the head of the courts threatens to open a new front of protest at the General Council of the Judicial Power (CGPJ). Two levels of the body: the Equality Commission, on the one hand; and the technical office, on the other, have published antagonistic reports on how a norm that seeks to finally implement gender balance in the masculinized management of the courts should be applied.
The equal representation law, which came into force last August, requires in the case of the CGPJ that in all appointments and promotions which involve a certain margin of discretion or appreciation of merits “the principle of balanced presence of women and men be guaranteed” , so that people of each gender do not exceed 60% nor are they less than 40%.
However, the text does not define the modalities of application of this rule, which led to the approval of two reports which led to contradictory conclusions and presage divergences at a time when the CGPJ has almost a Hundreds of positions awaiting appointment, including 26 at the Supreme Court, where nearly one position in three is not filled.
Thus, while the opinion of the Equality Commission defends that the balanced presence of both sexes must be imposed in each category, the technical cabinet considers that it is sufficient that parity is achieved in all appointments during the five years mandate.
“Representation and decision”
The Equality Commission, which is the body to which the law assigns the task of “advising” the plenary session on equality between women and men, approved its report on October 21. The progressive majority of this commission succeeded in presenting a document which defends that these percentages of balanced presence must be projected onto the composition of each space of “representation and decision”. In practice, this means imposing parity in each allocated place category.
Among the vacancies to be filled are four of the five presidencies of the Supreme Court Chamber. With this criterion, at least two should be occupied by women so that, for the first time, the composition of one of the highest levels of the judicial pyramid is equal. The report of the Equality Commission is not binding, but the sources consulted maintain that if this criterion is not respected, both the Qualification Commission, responsible for interviewing the candidates; like the plenary session, they should motivate it.
The other report, which will be analyzed during the plenary session on November 27, was prepared by the technical cabinet of the CGPJ at the request of the president, Isabel Perelló. This opinion defends that it is sufficient that the balanced presence in the appointments made for the different types of positions is guaranteed throughout the “term of office” of the current governing body of judges, scheduled until 2029, and that the criterion Parity does not necessarily have to be applied to the Supreme Court, the National Court, the superior courts and the provincial courts nor in each of their chambers.
Their thesis is that, to comply with the law, it would be enough to appoint 40% women over the entire mandate, regardless of the type of position or its relevance. This is what the Equality Commission report defines as a “generalizing” criterion which could lead to “absurd” results and “blurred parity as a criterion for participation in decision-making areas”.
This opinion from the technical cabinet establishes that the balanced presence of men and women in the percentages fixed by law is an element which “must always be present in the decision of the plenary assembly relating to appointments”, but it also specifies that the jurisprudence of the Court of Justice of the European Union, the Constitutional Court and the Supreme Court prevents attributing to the sex of candidates “greater importance than to merit and ability”.
The imbalance of the Supreme Court
The two reports come at a time when the CGPJ has the complex task of renewing around a hundred positions within the judicial directorate. Among these vacancies are four Supreme Court presidencies. And there, the names of two candidates appeared as a possible source of conflict: the progressive magistrates Ana Ferrer and Pilar Teso, who are the favorites of the members elected on the proposal of the PSOE and Sumar to preside over the Criminal Chamber and the Litigation Chamber. .-Administrative, respectively. The conservative sector opposes his election and is ready to block the negotiations, according to the sources consulted, which would result in two men, the oldest, the one who establishes the rule in the event of no renewal agreement, who are also party favorites. conservative sector.
Until now, no law required equal representation within the judicial leadership. In 2019, the CGPJ approved the II Equality Plan, which provides that “positive action” measures will be put in place until the representative rate of 60 to 40% is reached in judicial positions. and governments of maximum accountability in the justice system. The law on equality, in force since 2007, also provides that public authorities will “endeavour” to respect the principle of balanced presence of women and men in appointments that correspond to them.
These are instruments that have failed to reverse the significant gender imbalance in judicial leadership. For more than five years, the judicial system has had more women judges than men: 57.2% women and 42.8% men out of a total of 5,416 judges. But the female majority is diluted as the positions of responsibility are distributed until reaching the Supreme Court, where there are 45 men and 12 women. Furthermore, the presidencies of its five chambers are in the hands of men and its Chamber of Government has only two women compared to eight men.
