In my last piece here I wrote about the female deficit on juries. Today, I shall tackle the female shortfall among judges. Here again, the government has no excuse, as with board members and presidents on government entities, it chooses the appointees and, thus, has the discretion to choose from the meritorious pool of qualified and experienced women available. But the government is somehow reluctant to do so. Women are sorely under-represented in the judiciary if we consider the number of female lawyers who have the requisite qualifications to be considered for appointment as judges.
Over the last 20 years there has been an exponential increase in the number of women lawyers. So why is it that we have only two women judges? As parliamentary secretary in the Prime Minister's Office, 13 years ago, I had commissioned Patricia Leighton (now emeritus professor of employment law) to conduct a study on how best to fast-track qualified women to the higher echelons of the public service so that the gender imbalance is addressed. Her report proposed a rather simple and fair programme, which was shelved by the following Nationalist government. Gender-mainstreaming is very much part of the government's discourse but it is ephemeral when it comes to action. A situation for which Malta continues to attract flak.
For instance, the European Court of Human Rights (ECHR) is demanding that Malta has a woman on the list of judges' names proposed for this court. The application for judges on the ECHR is open to lawyers, magistrates and judges. When the application was initially issued for three names to be chosen for submission, two women lawyers (there were no women judges yet) and three judges (obviously men) applied. The government, understandably, chose to submit the names of the three judges. When the Assembly did not consider the "men only" list, the government pointed out that: "From among the applicants, it chose the three most qualified and experienced in human rights and constitutional law, namely, the three judges of the Constitutional Court".
I cannot argue against this; when three judges with so much experience apply, choosing a lawyer (thus with no experience at the judiciary level) does not make meritocratic sense. It would be more grist to the mill for those who speak of women being nominated "just for the sake of having a woman on the list". There will be cries of tokenism. When the government explained the situation, the Assembly accepted:
"...where a contracting party has taken all necessary and appropriate steps with a view to ensuring that the list contains a candidate of the under-represented sex, but without success, and especially where it has followed the Assembly's recommendations advocating an open and transparent procedure involving a call for candidatures, the Assembly may not reject the list in question on the sole ground that no such candidate features on it."
There is no disgrace in failure. Disgrace is in not learning from our mistakes. And this government has not been learning from its mistakes. We need to be open about the selection process when choosing judges for the Maltese court and create the space for women who can succeed. It's not about special favours but about making sure the system is merit-based. This way more Maltese women will be able to gain experience as judges while the pool of qualified and experienced women as potential applicants to European and international structures will be broadened.
Evidently, little attempt is made to recruit a judiciary that represents society fairly and, while our most brilliant women are not given the opportunity, men continue gaining experience in this area.
The first woman judge to be appointed to the Supreme Court of India in 1989, Fathima Beevi, was recently quoted, in the International Journal of the Sociology of Law, saying that gender bias does exist in the judiciary and that competent women are rarely considered: "Unlike 50 years ago, there are more women in the legal profession today. Even if we are equal, authorities are not giving sufficient and equal opportunities to women". Sounds familiar.
The main criticism at our government is also about not appointing more women judges in spite of the fact that our University has been churning out women lawyers by their hundreds and many have been doing very well for themselves.
As gender specialist Mary Lou Stirling put it: "This issue is not only about opportunities for female lawyers. We must not underestimate the importance of fair representation of women among the judiciary. If a group does not see itself reflected in the judicial system, members of that group may question - with cause - the system's ability to deal fairly with its experiences and interests".
The judiciary must be representative of our society. This matters because democracy matters.
The author is a sociologist and a Labour member of Parliament.