The Judiciary is divided when it comes to applying parity: contradictory reports on the promotion of women

The application of the parity law imposed by the balanced presence of both sexes in future appointments at the top of the courts threatens to open a new front of dispute in the General Council of the Judiciary (CGPJ). Two levels of the body—the Equality Commission, on the one hand; and the technical office, on the other, have made antagonistic reports on how a norm that seeks to finally implement gender balance in the masculinized leadership of the courts should be applied.

The equal representation lawwhich came into force last August, imposes in the case of the CGPJ that in all appointments and promotions that imply some margin of discretion or appreciation of merits “the principle of balanced presence of women and men will be guaranteed, in such a way that people of each sex do not exceed 60% nor are they less than 40%.”

However, the text does not define how this rule should be applied, which has led to the approval of two reports that have produced conflicting conclusions and predict discrepancies at a time when the CGPJ has almost a hundred vacancies pending appointment, 26 of them in the Supreme Court, where almost one in three positions is unfilled.

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 believes it is sufficient that parity is achieved in all appointments during the five years of mandate.

“Representation and decision”

The Equality Commission, which is the body to which the law attributes the task of “advising” the plenary session on equality between women and men, approved its report on October 21. The progressive majority of that commission managed to put forward a document that defends that these percentages of balanced presence must be projected onto the composition of each area of ​​“representation and decision.” That, in practice, means imposing parity in each category of place that is awarded.

Among the vacancies pending 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 echelons of the judicial pyramid would be equal. The report of the Equality Commission is not binding, but the sources consulted maintain that if this criterion is not followed, both the Qualification Commission, in charge of interviewing the candidates; like the plenary session, they should motivate it.

The other report, which will be analyzed by the plenary session on November 27, has been prepared by the technical cabinet of the CGPJ at the request of the president, Isabel Perelló. This opinion defends that it is enough for the balanced presence in the appointments made for the different types of position to be guaranteed throughout the “duration of the mandate” of the current governing body of the judges, scheduled until 2029, and that the criterion of Parity does not have to be applied throughout the Supreme Court, the National Court, the superior courts and the provincial courts or in each of their Chambers.

Their thesis is that, to comply with the law, it would be enough to appoint 40% women throughout the entire mandate, regardless of the type of position or its relevance. This is what the Equality Commission report defines as a “generalizing” criterion that could lead to “absurd” results and “blurring parity as a criterion for participation in decision-making areas.”

This opinion of the technical cabinet establishes that the balanced presence of men and women in the percentages established by law is an element that “must always be present in the decision of the plenary session on appointments”, but it also states that the jurisprudence of the Court of Justice of the European Union, the Constitutional Court and the Supreme Court prevent attributing to the sex of the candidates “a greater relevance than to merit and capacity.”

The imbalance of the Supreme Court

Both reports come at a time when the CGPJ has the complex task of renewing a hundred positions in the judicial leadership. Among these vacancies are four presidencies of the Supreme Court. And there the names of two candidates have emerged as a possible source of conflict: the progressive magistrates Ana Ferrer and Pilar Teso, who are the favorites of the members elected at the proposal of PSOE and Sumar to preside over the Criminal Chamber and the Litigation Chamber. -Administrative, respectively. The conservative sector opposes his election and is willing to block the negotiations, according to the sources consulted, which would result in two men, the oldest such as establishes the rule in case there is no agreement for renewal, which are also the favorites of the conservative sector.

Until now, there was no law that imposed equal representation in the judicial leadership. In 2019, the CGPJ approved the II Equality Plan, which provides that “positive action” measures will be established until the 60%-40% representativeness ratio is met in the judicial and governmental positions of maximum responsibility in the judiciary. The equality law, in force since 2007, also establishes that the public powers will “strive” to comply with the principle of balanced presence of women and men in the appointments that correspond to them.

They are instruments that have not managed to reverse the significant gender imbalance in the judicial leadership. For more of five yearsthe judiciary has more female judges than male judges: 57.2% women and 42.8% men among the total of 5,416 judges. But the female majority is diluted when 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 Government Chamber has only two women compared to eight men.