08 Oct Symposium on Gender Representation: Women in the Administration of Justice
[Diego Garcia-Sayán is the Special Rapporteur on the independence of judges and lawyers as of December 2016. Mr. García-Sayán was a judge of the Inter-American Court of Human Rights for two consecutive terms. He has broad experience working for multilateral organizations such as the UN and the OAS.]
As is well known, several international instruments recognize the basic human right to gender equality, the prohibition of gender-based discrimination, and women’s right to a life free of violence, as well as States’ obligation to prevent, address, investigate, punish, and redress all forms of discrimination and violence.
The principles of non-discrimination against women, based on women’s right to substantive gender equality, are fundamental components of international human rights law established both in the Universal Declaration of Human Rights and in all the main universal and regional human rights treaties. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Discrimination against Women all establish States’ duties to eradicate gender discrimination. At the regional level, the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women establishes concrete measures to achieve real equality for women in all spheres of society.
Other instruments related to gender equality, such as the Beijing Declaration and Platform for Action, or the Brasilia Rules on Access to Justice for Persons in Conditions of Vulnerability, contain similar provisions. Moreover, the Human Rights Committee’s General Comments No. 25 (1996) and No. 28 (2000) complement these standards.
Gender discrimination is a structural issue, and it is especially exacerbated for persons who identify with vulnerable ethnic, racial, cultural, or religious groups, as well as for persons with disabilities. International standards emphasize States’ duty to adopt protective measures regarding vulnerable groups, including the prohibition of discrimination against persons belonging to national, ethnic, religious, or linguistic minorities. States must ensure that women belonging to these minorities, both at the normative and functional levels, have access to judicial and prosecutorial careers, are supported on an equal footing, and are adequately protected in their workplaces.
Nevertheless, international and regional standards on judges and prosecutors do not include specific principles guaranteeing gender equality within the judiciary. Careers in prosecution are not governed by specific gender equality principles either. Selection and appointment processes are usually regulated by a general clause prohibiting discrimination based on gender. However, as I have noted in several reports, the essence of the challenge does not lie in the absence of certain international standards for judicial and prosecution bodies, but in the unequal or limited implementation of the essential standards that already exist. The principles and norms of equality and non-discrimination in the judiciary tend to become mere programmatic references with limited effects.
Discrimination against women occurs not only through various explicit normative obstacles, but also through institutional, structural, and cultural barriers that lead women to ultimately be underrepresented in public decision-making positions. Or, in the best of cases, when women are in fact selected for decision-making positions, they tend to be relegated to certain areas of the judicial system. This is the case, for example, when – on the basis of unacceptable gender stereotypes – women are considered to be more suited to work in family or first instance courts than in criminal courts. Or, as happens in many countries, when the general assumption is that the workplace culture and environment are not favorable or conducive for women to access higher hierarchical positions, and that they should therefore remain in lower-ranked ones.
Equal representation of women and men in the judicial system is both an objective in itself and an essential condition for the equal and effective protection of human rights, as well as an indispensable standard for achieving substantive equality. A diverse composition of the judicial bodies would ensure that a variety of voices and perspectives are represented and heard, which could in turn contribute to legitimizing the judiciary and the prosecution service. Seeking to apply tools and policies aiming to obtain equal and proportional representation in the judiciary and the prosecution service is a way to exercise the human right to equality; it does not imply a concession to a specific group, but rather the search for a benefit to the general interest and to society as a whole.
Let me share the latest data that explains my previous points. With regards to the proportion of female judges by region, Europe is in the lead, with an average of 54%, followed by the Americas with 51%. These data contrast, however, with those of Oceania, Africa and Asia, where women represent 31%, 30% and 29% of the total, respectively. In Europe, countries such as Latvia and Romania have, respectively, 81% and 79% female judges. Spain has 54% female judges and 65% prosecutors, and Poland has 65% female judges and 53% prosecutors, while Armenia and Azerbaijan have 25% and 15% female judges, respectively (data gathered by the UN SR).
In Western Asia and the Middle East, Israel has 52% female judges, while in the eastern part Azerbaijan has 16.6%, Mongolia 66% and Kazakhstan 51%. In Africa, Mauritius and Madagascar have a proportion of female judges of 61% and 51%, respectively. In the United Republic of Tanzania, they represent 49% and in Lesotho 66%; and in Uganda 75% of the country’s 432 prosecutors are women. In the Latin American and Caribbean region, Saint Kitts and Nevis have an 83% proportion of female judges; the Bahamas and Saint Vincent and the Grenadines both have a proportion of 64%, while Argentina has 30% female judges and 26% female attorneys and prosecutors; Peru has 42% female judges and Colombia 43%. In Uruguay, 81% of prosecutors are women. In the United States of America, according to data provided by the National Association of Women Judges, of the 20,270 judges who make up the judicial system in 2021, a total of 7,296 are women, representing 36 %. In Australia, the proportion of female judges and magistrates is 33% and of prosecutors 43%. In New Zealand, female judges represent 39% of the judiciary. In other regions, countries such as Nepal have a proportion of female judges and magistrates of 6%, the Maldives of 9% and Malaysia of 33%. In Pakistan, Saudi Arabia, Egypt or the United Arab Emirates, female judges represent less than 1% (data gathered by the UN SR).
What we could infer from the data above is that women face persistent barriers hindering their participation in their States’ judiciary. Some of the barriers are the legal, cultural, and social restrictions preventing them from exercising their chosen profession; other barriers include the lack of access to funding for studies, examinations, and other expenses related to access to the judiciary. In some countries, personal status laws contribute to the restrictions imposed upon women. For example, some countries still uphold women’s duty of obedience to their husbands, allowing husbands to decide whether or not it is appropriate for their wives to engage in professional and academic endeavors.
However, in my capacity as Special Rapporteur over the past few years, I have noted notable progress in several countries with regards to women’s access to judicial careers. Suffice it to cite, as an example, the case of Italy, where the percentage of women in the judiciary is around 70%, which seems to indicate that the presence of women in the judicial system will continue to increase. In Trinidad and Tobago, the majority of people who enter the judiciary are women, who have changed the very composition of the judiciary. However, I have noted little progress – and even setbacks – in Kuwait, Oman, Saudi Arabia, and Somalia (data gathered by the UN SR).
Most countries have legislation prohibiting discrimination against women both in terms of women entering judicial careers and in terms of women accessing and receiving promotions throughout their careers. However, it is important to note that the lack of effective policies discourages women from fully participating in this field. Among other shortcomings, it is worth mentioning the lack of social and political support networks; the lack of visibility, in some countries, of women’s contribution as judges or prosecutors; and the lack of favorable conditions for women’s professional development.
In its General Comment no. 25 (1996), the Human Rights Committee considered that to guarantee equal access to public office, the criteria and procedures for appointment, promotion, suspension, and dismissal must be reasonable and objective, and may include the adoption of positive steps.
Overall, in Asian, Latin American, and European countries, there is a positive trend in women’s access to judicial and prosecution careers, as well as indications of increasing equality of conditions with men. In those countries where admission to the judiciary is done through public competitions, whereby candidates undertake written and oral examinations scored on the basis of objective criteria unrelated to the candidate’s gender, the result is that more women participate, and more women are appointed to judicial careers. However, this does not necessarily translate to promotions, especially when appointing judges to higher courts.
Based on the data collected for an upcoming report that I am preparing on this matter, I have noted that the design and application of public policies and measures towards gender equality have been uneven and inconsistent. States must guarantee women’s rights and ensure their full participation in the judicial system and the prosecution service. The mere adoption of laws and public policies will not change the structural and systemic discrimination against women. These measures are nonetheless very important, as they send the message that gender-biased attitudes and behaviors are unacceptable.
As I will be recommending in my next report to the General Assembly of the United Nations, it is a priority to design and implement a quota system that is not just merely symbolic to ensure equality in access to positions in the administration of justice, and achieve greater equality from a geographic or regional perspective.
A clear-cut strategy is essential. The Sustainable Development Goals can be regarded as a guiding instrument, as States should seek to reach the target of having at least 50% of public positions held by women, including at the top levels of the judiciary and the prosecution service.