On the 4th of April, the Belgian Parliament passed a Bill that introduced a sex quota in the composition of the Constitutional Court (CC). It requires the Court to be composed of at least a third of judges of each sex.
This requirement will however not enter into force immediately, but only once the Court is in fact composed of at least one third of female judges. In the meantime, a judge of the underrepresented sex shall be appointed every time that the two preceding appointments have not increased the number of judges of this underrepresented sex. For example, if women remain unrepresented on the Court (as they currently are, representing only around 16% the Court), and the next two appointees are men, the third appointment will have to be a woman.
Introducing quotas in the composition of the CC of Belgium – a paradigmatic example of a State which has historically had to find compromises between various groups – is not in itself revolutionary. As a matter of fact, the composition of the CC has, from its creation, required linguistic and “professional” quotas: six judges should be Dutch-speaking, three of whom should be former MPs, and six judges should be French-speaking, again, three of whom should be former MPs. Even this new introduction of sex-based quotas is not completely at odds with the previous spirit of the rules surrounding judicial appointments: the Act on the CC has stated since 2003 that ‘the Court shall be composed of judges of both sexes’. However, this previous requirement was a minimal one and did not guarantee the achievement of meaningful sex diversity: only four women – all former MPs – have been appointed to the Constitutional bench since its creation in 1984. Moreover, up until January 2014, the Court has never counted more than one woman at a time among the twelve judges sitting on the bench. Requiring at least one woman on the bench has led (until 01/2014) to the appointment of only one woman to the bench at any particular time. No more.
Such an underrepresentation of women has been constantly criticised by some MPs, who have lobbied for more than 10 years for more sex diversity on the bench. They have argued for diversity for three main reasons. First, it would reinforce the democratic character of the courts. Second, it would allow for a better protection of sex-specific interests. And finally, it would improve the quality of justice by bringing more flexibility and more creativity on the bench. Since 2003, various bills have been proposed to introduce sex-based quotas as a mean to achieve diversity. Their promoters have relied on four different, but interrelated, arguments:
(1) The introduction of sex quotas is a powerful stimulus for change that has proved to be useful, notably with regards to the gender composition of the Parliament.
(2) There is some urgency to appoint more women on the constitutional bench.
(3) Other less restrictive alternatives – such as requiring that at least one member of the Court should be a woman – have failed to bring about real sex diversity.
(4) Quotas are not a radical measure since there are enough qualified women who could be appointed to the bench.
Ten years and eight bills later, the promoters of sex-based quotas have finally won, at least with regards to the composition of the CC.
This political debate is based on theoretical underpinnings that are worth discussing, including in academic circles. While such questions have been investigated in the common law context, they are still relatively unexplored within the civil law legal cultures. It is time for civil lawyers, and in particular French-speaking scholars, to start to engage seriously with these difficult but fascinating issues.