– Inštitut za ustavno pravo

Zasl. prof. dr. Ciril Ribičič predaval na mednarodni konferenci o temi: Ensuring Gender Equality in Elections in Slovenia and the European Standards

International Conference on Comparative Legal Review and the Judicial Protection of Gender Equality
4 and 5 March 2021

Ciril Ribičič: Ensuring Gender Equality in Elections in Slovenia and the European Standards

Transkripcija predavanja:

A man advocating for women’s broader inclusion in representative and executive authorities encounters mistrust and ignorance among women and rejection and ridicule among politicians. I will try again, though. I believe that women are not to blame themselves, but in Slovene politics, they are neglected against their will and contrary to general social interests. Consequently, they also cannot be solely held responsible that their situation does not improve. The male majority controlling the politics at a local and national level, is the first to be called upon to achieve a more proportionate representation of women and men for society’s benefit as a whole and its coordinated action. This is all the more important in a crisis in which society should not afford to give up the activities and influence of half the population. Opposition to more equal participation of women in representative bodies would be more convincing if the prevailing men’s policy were more successful and enjoyed broader trust in the public and among voters than it enjoys today in Slovenia, but in many other countries too.

The story of women’s representation in politics did not start promising a hundred years ago. Article 70 of the 1921 Vidov Dan Constitution stipulated that the women’s right to vote shall be determined by law. The fundamental problem was not that such an important issue was degraded from the constitutional to the legal level. But in the fact that the law had not been enacted until World War II, and women were left without the right to vote. It was not until World War II that more courageous solutions to this issue appeared within the liberation movement. Women were afforded the right to vote at the establishment of liberation or field committees at the age of 18; in case they carried weapons, the age census was even lower. Something similar was brought about by the introduction of workers’ self-management in the 1950s when workers acquired universal suffrage at the age of 18, and by the age of 15, all employees were able to elect works councils.

It is known that socialist Yugoslavia had a respectable constitutional judiciary and constitutional law science, thanks to which the European Conference of Constitutional Courts in Dubrovnik was established in 1972. It is less known that the constitutional courts of the former republics have also functioned since the mid-1960s. This was also the case in Slovenia, where this fact is obscured by those who imagine that the constitutional judiciary kicked off only with them. When I served as a constitutional judge in 2004 at the celebration of the 40th anniversary of the Constitutional Court of Macedonia, one of the guests reminded me of the “activist” decision according to which the Slovenian Constitutional Court is famous and I will summarise it below.

After the public hearing, the Constitutional Court by decision no. U-I-37/76 annulled the provisions of internal legal acts in ten units of the well-known Celje enterprise EMO, insofar as they gave preference to male candidates over women in the systematisation of jobs. The annulment decision is based on the constitutional principle of equality between men and women, which must also be respected when competing for jobs in the economy. Therefore, in the Constitutional Court’s opinion, it was unconstitutional to give preference to men when running for a particular position. The Court adjudicated that the only exceptions could be those particularly dangerous jobs that were detrimental to health and which women were not allowed to perform because of their biological characteristics and motherhood. Today, such a decision is self-evident. At the time, it significantly impacted the equal employment of women in Slovenia and other parts of the former Yugoslavia. Following the adoption of this decision, companies abandoned the hitherto broadly established practice of privileging male candidates, both in their internal legal acts and in public vacancies. Otherwise, they would have risked the annulment. This demonstrated the actual de facto erga omnes effect of the Constitutional Court decisions. Estimates of the functioning of the Constitutional Court before Slovenia’s independence in 1991 range from an excessive idealisation of its role to the assessment that it was only an obedient tool for consolidating undemocratic power, and I shall rank this decision among the glorious seven.

Of particular importance to the topic under discussion is the provision of Article 3 of the current Constitution, which defines Slovenia as “the state of all its citizens”. In the Constitutional Commission, I insisted the female form of the noun citizen to be mentioned first, before the male form, and prevented some attempts to edit the text to return the male form to where they belong, men first. My argument was that women who make up most of the Slovene population are still a neglected “minority” when making authoritative decisions. Interestingly, an otherwise high-quality translation of the Constitution into English failed to show this feature of Article 3.[1]

Twenty years ago, when I tried to illustrate this feature of Slovene politics in the article “Slovenia is a noun of female gender”, I stressed that a woman in Slovenia has never served as president of the republic or prime minister, president of parliament, president of Constitutional Court, rector of the University where today’s conference is taking place, or ombudsperson. Later, Alenka Bratušek became the Prime Minister, Dragica Wedam Lukić, PhD, and Jadranka Sovdat, PhD, became presidents of Constitutional Court, Andreja Kocijančič, PhD, served as the University rector and the ombudspersons were, consecutively, Zdenka Čebašek Travnik, PhD, and Vlasta Nussdorfer. This demonstrates some progress, but the representation of women in state and local representative bodies has remained low and is in constant flux from election to election.

All of us who strive for more equal participation of women in Slovene politics have had high hopes since the 2004 amendment to the Constitution. At that time, Article 43, which deals with the right to vote, was amended as follows: “The law shall provide measures for encouraging the equal opportunity of men and women in standing for election to state authorities and local community authorities.” The legal theory states that this provision allows for the so-called positive discrimination of women. Upon the adoption of this amendment, constitutional jurists argued that it was unnecessary because the introduction of women’s quotas could have been justified by a creative interpretation of the Constitution. However, the prevailing opinion was that the amendment of the Constitution was necessary because otherwise, legal disputes could have been initiated by male candidates, claiming a violation of the equality before the law principle.

When associations seeking to strengthen the position of women in representative bodies proposed the introduction of quotas and the so-called zippers (alternately listing female and male candidates on the lists), they repeatedly encountered objections that this violated equality of suffrage and discriminatory treatment of male candidates. Therefore, a proposal emerged to regulate the issue in the Constitution in such a way that it would no longer be possible to object to the unconstitutionality of measures that endeavour to reduce the gap between the representation of men and women. The fathers of this amendment to Article 43 of the Constitution stressed that “women in Slovenia represent 51.13% of the population, and their participation in public affairs management has amounted to only 11% to 14% in the last ten years.” According to the National Assembly’s assessment, which adopted the amendment by a large majority, this was not a discriminatory treatment of men but a solution seeking to eliminate discrimination against women. The measure was conceived as anything but gender-neutral.

There is no doubt that the purpose of amending the Constitution was to improve women’s position in the National Assembly, other state bodies, and local community bodies (State Council, municipal councils). Although the text speaks of “the promotion of equal opportunities for men and women”, the amendment to the Constitution stems from the fact that women are in a substantial minority in all these bodies, most notably as mayors, then in terms of representation in municipal councils and finally in terms of representation in the State Council and the National Assembly.

An interesting question is whether such a justification of the amendment to the Constitution and the text of electoral law are in conflict? The justification is convincing as a foundation for introducing “women’s” but not “men’s” quotas. Therefore, we must be cautious that “gender” quotas, which refer to Article 43 of the Constitution, are interpreted as favouring the sub-represented gender and not neutral or even male.

Men are not under-represented in local and state authorities. On the contrary, they dominate in all these bodies. This also applies to the National Assembly, in which the share of female deputies decreased from 1/3 to less than 1/4 (23,3%) in the last parliamentary elections (2018)! If someone were to try to enable the introduction of “male” quotas by law, this should by no means successfully pass the constitutional review. In my estimation, it will be so, at least until the end of the 21st century. Council of Europe gender equality strategy 2018-2023 speaks about specific policies and actions, including positive action when appropriate, in critical areas for the advancement of women for the realisation of de facto gender equality. In my opinion the commitment of Council of Europe and member states governments for balanced participation of women and men by 2030 is far from realistic. And as long as this is the case, women’s quotas will be in accordance with the Constitution because they promote a more proportional representation of women in the National Assembly. In contrast, men’s quotas have the opposite effect because they contribute to maintaining male dominance in Slovenian politics. In the latter case, a well-founded constitutional amendment is interpreted and applied contrary to the constitutor’s intent.

Let me illustrate this with a concrete example. Electoral commissions annulled the list of candidates for deputies of the National Assembly in one of the constituencies because there were too few men (less than 35%), and the courts, including the Constitutional Court and European Court of human rights, rejected all legal remedies against such a decision. The effect of such a decision is all-round detrimental because it has prevented the smaller Sloga political party from running for more women in the hope that it would have helped reduce the gap between the representation of men and women in the National Assembly. The political party has not been successful in an election. Still, if it had been successful in a constituency, it could have achieved, at best, the election of one female deputy instead of one male deputy. Thus, the dominance of men in the National Assembly could in no way have been jeopardised. Let us break down the “gender-neutral quotas” (as they are called and defended by the Constitutional Court in the present case – Up-713/18) into two parts, the women’s quota and the men’s quota. It becomes clear that men’s quotas have no legitimacy, since in men, unlike women, it is not about protecting the rights of either a minority, or a vulnerable, or a powerless, or an under-represented group.

Let us look at the matter from the perspective of women candidates whose candidacy was annulled only because they were women. We can see that the gender quota was justified and used in such a way as to prevent a member of the sub-representative gender from running. I believe that such an interpretation of special measures to promote equal opportunities for men and women is not constitutionally acceptable. Namely, it creates the external impression that it is intended to encourage a more equal representation of women. Still, in practice, it has the effect of preventing or at least inhibiting a significant reduction in the gap between the share of men and women. This could be remedied in a variety of ways. One would be adopting an interpretative decision by the Constitutional Court that gender quotas are constitutional if interpreted and applied in a way that promotes a more equal representation of women and not by contributing to maintaining male dominance by repealing women’s candidacies.

If we try to uphold European democratic standards in suffrage, we will run into a plethora of problems. The European institutions, be they the Council of Europe bodies such as the Venice Commission, or the European Union, need to consider very diverse solutions in this area. Very different models of electoral systems exist across Europe, which these institutions recognise as democratic. These are various models that belong to the majority, proportional, and combined system. However, in conventions and human rights catalogues a solution could not be found that would guide us in resolving dilemmas and eliminating distortions. One provision that speaks in favour of my position, however, is to be found. This is Article 23 of the European Charter of Fundamental Rights, which clearly states when the special protection of equality between women and men is justified – when specific benefit measures are “in favour of the under-represented sex”. And in Slovenia, here and now, only women are under-represented!

Women’s rights activists argue that the best results regarding women’s participation can be achieved under the proportional system; worse results are brought by the combined system and the worst under the majority electoral system. Nevertheless, it is usually acceptable for them to personalise the proportional system to some extent, for example by introducing an absolute priority vote. I support a combined electoral system that builds on a combination of majority and proportional extremes’ positive features. According to some logic of reducing the differences between the existing electoral systems, the combined system is suitable for today’s Slovenia and promising at the global level. I believe that it is possible to find an effective way to strengthen the representation of women also within a combined two-vote system, provided that the second vote is no longer used exclusively to achieve a proportional representation of political programmes and parties, but also to maximise proportional representation of women and men. If the zipper, the high quota for the representation of women on candidate lists, and the adjustment of the second vote for this purpose would not prove to be effective, I believe the adoption of a legal provision ensuring a minimum share of female deputies in the National Assembly remains radical option, for instance, 1/3 or 2/5 of the MPs. In my opinion, 1/3 of women’s representation is the minimum proportion when women no longer act in parliament as imitators of men’s politics but start working differently, according to women’s logic, which is more restrained, reassuring, cooperative, inclusive and future-oriented (for their children and grandchildren). Undoubtedly, this would move the effort for more equal representation of women from the candidacy process to directly interfering in how many female MPs will be elected. I dare to suggest this despite what has been said in the introduction about men’s unwanted involvement in ensuring women’s equality.

I am speaking from Kranjska Gora, which is only a few kilometers from the Nordic Center Planica, where the next World Championships will take place, so I must add: Slovenian sportspersons have won six medals in Obersdorf so far. Five of them were won  by women.

In Kranjska Gora, on 4 March  2021

[1] “Slovenia is a state of all its citizens…”

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Zasl. prof. dr. Ciril Ribičič predaval na mednarodni konferenci o temi: Ensuring Gender Equality in Elections in Slovenia and the European Standards
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