Women and judicial appointments

The six papers in this special issue deal with various aspects of women in the judiciary in six different countries: two contributions are from sub-Saharan Africa: South Africa and Nigeria, two from Europe: Northern Ireland and Spain and two from very different parts of Asia: Turkey and the Philippines. The papers on Africa and Europe have been presented at an Expert Seminar on Gender and the Judiciary organised by Tabeth Masengu under the auspices of the Human Rights Centre at Ghent University in Belgium on the 27th of April 2018. The two papers on Asia have been developed in the context of a project on Women Judges in Muslim Courts of Law which was an International Research Collaborative for the international socio-legal meeting in Mexico-City in 2017.

Adding new countries, this special issue of the International Journal of the Legal Profession complements other international comparative collections on gender issues in the judiciary which have been published in the past years. These include the comprehensive volume with 30 contributions on 19 countries “Gender and Judging” (Schultz and Shaw 2013a), two special issues of the International Journal of the Legal Profession “Women in the Judiciary” (Schultz and Shaw 2012), and “Gender and Judicial Education” (Schultz et al. 2016); and a collection on “Women Judges in the Muslim World” (Lindbekk and Sonneveld 2017) as well as an upcoming issue of the Onati Socio-Legal Online Series on Gender in Muslim courts of Law. National publications are innumerable and still new research projects on related issues are launched, e.g. at the University of Bergen/Norway on “Women on the Bench. The Role of Female Judges in Fragile States”.¹ Also documentary films on women judges have been produced: e.g. on Ruth Bader Ginsberg, the feminist judge at the American Supreme Court, “RBG” and “On the Basis of Sex” (both 2018), “The Judge” (2018) about the first female Sharía Court judge in Palestine, “Lady Judges in Pakistan” (2013) by Livia and Marius Holden, “Courting Justice” (2010) by Ruth Cowan about Women Judges in South Africa after Apartheid,² “Sisters in Law” (2005) about women judges in Kameron.

A broad range of subjects related to women in the judiciary are covered in all the mentioned publications. These include topics such as access and careers in the judiciary, dealing with the question: Do women have equal chances in the judiciary, do they have equal representation in higher positions or do they hit the famous glass ceiling? Are they accepted by their colleagues and by clients at court, male and female clients? Is there indecent behaviour and/or discrimination against female judges?

Is it easy or particularly difficult for women in the judiciary to find a work/family-life balance? What are impeding factors? What are the prevailing gender images in their societies? Is there a relation between participation of women in the judiciary and prestige and pay?

Do women judge differently? In what way may gender, age, marital-parental status, position and race/ethnicity influence their decision making (and of course that of their male counterparts)? Can class or other differences in background create a divide between the elite women judges and the “ordinary” women taking their cases to court? Do women judges have a more caring attitude to clients? What are the expectations from people at court towards female judges?

What do the women judges perceive as their role: Do they contribute in impowering women in their rights, also customary or indigenous rights through the court system?

Women had been excluded from taking law degrees, entering practice as lawyers and being admitted to the judiciary in most countries till the beginning, in some countries till well into the 20^th century, even in Europe: in France in 1946, in the Netherlands 1947, in Italy in 1965, in Portugal in 1978. In these countries they have caught up fast and are in the majority now. In India and China however where it would not be expected, the first women were admitted to the judiciary as early as 1926. In many Arab countries, admissions occurred only in the last two decades or even the last few years often due to pressure of donor countries. In Kuwait there is no female judge even today (2020), and in Iran none left. The Nobel Peace Prize winner Shirin Ebadi was the first and so far only female judge in Iran from 1975 to 1979. (Schultz 2021) Low numbers of female judges are in some fragile states, e.g. in Afghanistan (11%) and Haiti (10%). The number of judges in these states is dependent on influences of the political system, whether there is a more authoritarian, conservative or a more socialist, communist regime, the influence of the former colonial systems and partly also religion.

In many countries women judges are meanwhile in the majority, however often still underrepresented in leading positions. Data for Europe can be found at the website of the European Institute for Gender Equality (EIGE),³ at the website of the United Nations Economic Commission for Europe “Share of women among judges in Europe 2017”⁴; at the OECD website (for 2017),⁵ also in “European Parliament” (2017); for the USA at the website of the National Association of Women Judges,⁶ for Latin America and the Caribbean from the Gender Equality Observatory,⁷ just to give examples.

The type of legal systems matters in selection methods: is it a common law or civil law system, is it based on or blended with Islamic, as well as Asian and African legal traditions? Are there career judges who enter the judiciary at a young age, or are judges nominated on professional merit at an older age?

In the case of career judges competitive examinations work in favour of women, on the upper levels of the judiciary gate keeping is stronger: In almost all countries the way in which positions of power are accessed and enacted is gendered which means that besides formal there are informal obstacles which are difficult to grasp. Networks are often closed to women, their own women's networks are often less strong and assertive than the traditional men's networks. Political affiliation and kinship networks may matter. Interesting differences have been described for many countries between practice in the big cities and in the countryside, in some states a career as a judge means to move around in a country which makes it difficult for women to combine family and work. We hear of women who complain the heavy workload they have to master, that they are expected to be “asexual” beings, but women judges have an overall high job satisfaction.

In many countries there is besides the vertical stratification a horizontal one, women refined to family courts, in others family matters are part of the religious / Sharía courts jurisdiction which is in most cases reserved to men. In some countries, e.g. Afghanistan horizontal stratification takes the form of a gender-segregated system.

There is some evidence that women approach judging differently, e.g. in investigative matters, how they handle victims and witnesses in procedure, that their style of communication may differ, as well as their style of writing judgments, and the perception and the reception of their judicial opinions may differ.⁸ Women may also come to different results. The question if women judge differently has been dealt with in numerous publications as well as theoretical concepts from gender difference theory over individualistic approaches to a deconstruction of gender (Schultz 2016, 2017, 2020; Schultz and Shaw 2013b). There is evidence that in some countries the competence and authority of women judges is more likely to be questioned and they are seen less likely to be impartial, although it is a hard empirical fact from different countries that women judges are less prone to bribery and corruption.⁹ An explanation can be that they often are not the main breadwinners of the family, the question however remains whether they are more “virtuous” than men maybe due to a gendered education.

There are still questions to be dealt with: Intersectional discrimination judges experience, at the interface of gender, sexual orientation, age, marital-parental status and race/ethnicity still deserves a closer look in many countries. What about judges in countries where e.g. homosexuality is forbidden by death penalty? In Germany a judge at the Supreme Court underwent a sex change a couple of years ago which only got a few remarks in the press, as officially we hold everyone in high esteem and do not discriminate – but unofficially? Whatever the share of women in the judiciary is, training in gender issues is important for women and men to reflect their own position and the work they do to be able to do justice to all genders and sexes to the best of their abilities, and pave the way to an elimination of discrimination (Schultz 2014).

To the contributions in this issue:

Based on interviews Seda Kalem deals in her contribution “Being a Woman Judge in Turkish Judicial Culture” with the life realities of female judges in her country: with their work in a profession which is considered to be masculine and with their social lives which confronts them with classical expectations as women, wives and mothers. Although 47% of the judges are women, the judicial reform strategy paper from 2019 set the goal to maintain gender equality in personnel recruitment,¹⁰ the interviews have revealed a prevalence of a particularly conservative and patriarchal culture. Judges live apart from society, independence of judges is understood as not being in touch with society at large. Women are often confined to their homes with few professional contacts and network opportunities. Focussed on their professional tasks, which they all considered as very demanding, the judges were however hardly aware of the working of gender in their professional development and in spite of the high percentage of women there is a marked re-traditionalization of the image of a judge.

Emily Sanchez-Salcedo evaluates in her chapter the impact of the first woman appointed Chief Justice of the Philippine Supreme Court. First and early women in leading judicial positions are always confronted with the expectation to improve the judicial product towards gender equality. Analysing the judgments in which Maria Lourdes Sereno was involved, the author draws a mixed balance. Sereno who could only serve a limited time of office had a delicate task. In some decisions involving important women’s issues, she was able to make a difference, in others she was not successful. The author concludes that a much needed push for women's issues was given, that opportunities had been seized, but others missed and therefore opportunities for greater gender equality had been lost.

The following four papers focus on women’s appointment to the judiciary by highlighting women’s careers and obstacles.

Tabeth Masengu hones in on the workings of the appointing body in South Africa, in her chapter “The Judicial Service Commission in South Africa and the appointment of women: more to it than meets the eye”. Her paper employs data from interview participants including judges, lawyers, judicial appointers, journalists and members of Civil Society organisations. It also incorporates data from participant observation of the judicial appointment interviews between 2013 and 2017 and workshops with judges and lawyers. She challenges the notion that using judicial appointment bodies negates the patronage and partiality that was previously present in executive only appointments. This is especially important because the majority of Commonwealth countries have done away with appointments made solely by the executive and literature argues that this move has resulted in a fairer and more transparent appointment process. The paper identifies three sites of partiality, power and patronage as observed in the JSC process− specifically regarding the appointment of women. These are in the form of the presence of politics in interviews, patronage in required criteria and partiality in the recruitment of judges. It concludes by advising that if the identified issues are not addressed, the advantages of appointment bodies as opposed to executive type appointments will start to diminish.

The contribution from Enibokun Uzebu-Imarhiagbe is a historical account of women judges in Mid-Western Nigeria. Entitled “Women in the Nigerian Judiciary: Considerable Headway or Organised Progress?”, this paper uses qualitative empirical data from interviews with judges and information gleaned from government records and personal files of judges in the archives of the judiciaries in Edo and Delta states in Mid-Western Nigeria. The increase of women in the High Court division is attributed to the selection of judicial candidates from the magistracy and government departments where many female practitioners are employed. While jobs in these fields of the public service have less financial remuneration than private practice, she argues that the regular hours proved more conducive for women. Uzebu-Imarhiagbe concludes that women’s progression to judgeship on the High Court, resulted from the judiciary’s need for qualified legal practitioners, regardless of gender, thus, creating a history of reception and advancement for women candidates, rather than exclusion.

Mónica García Goldar’s paper “The Glass Ceilings at the Highest Levels of the Spanish Judiciary” notes the contradiction between government supported Strategic Plans for Equity and the low number of women judges in Spain’s highest judiciaries. Despite the series of measures included in the Strategic Plans for Equality in the Judicial Career (2013 and 2020), Garcia Goldar submits that the glass ceiling for women in Spain appears to be unbreakable and refers to statistics on Spain’s highest courts to make the point. The Constitutional Court only has a 17% composition of women and there are no women on the Spanish Supreme Court. The paper describes the evolution of the presence of women in the Spanish judiciary and also suggests some of the possible causes for the glass ceiling. Referring to comparative data in other European countries, the paper emphasises that the glass ceiling is also present in other European countries although there are differences in respect of the patterns of representation. Garcia Goldar concludes by offering three possible solutions that could alleviate the identified problem in Spain.

Leah Treanor’s paper on “Problems in the pathways to judicial success: women in the legal profession in Northern Ireland” sheds light on the under-explored situation of women in the judiciary in Northern Ireland. Using a critical, social constructionist feminist approach, this contribution explores some of the gendered barriers influencing women’s under-representation in order to assess future judicial gender parity prospects in this jurisdiction. The paper analyses the eligibility requirements for judges, the interactions of merit and gender in the work of the Northern Ireland Judicial Appointment Commission, gendered occupational segregation and the “motherhood penalty”.

It is emphasised that the representation of women in the judiciary can only be improved when women’s retention and progression through the ranks of the legal profession in Northern Ireland is addressed.

Notes

1 https://www.cmi.no/projects/2122-women-on-the-bench.

2 https://www.courtingjustice.com/.

3 On highest and supreme courts https://eige.europa.eu/gender-statistics/dgs/browse/wmidm/wmidm_jud/wmidm_jud_natcrt.

4 https://w3.unece.org/PXWeb/en/DataMap?IndicatorCode=32.

5 https://www.oecd.org/gender/data/women-in-the-judiciary-working-towards-a-legal-system-reflective-of-society.htm data for Germany however incomplete.

6 https://www.nawj.org/statistics.

7 https://oig.cepal.org/en/indicators/judicial-power-percentage-women-judges-highest-court-or-supreme-court.

8 Current research by Nina Varsava, University of Wisconsin-Madison.

9 General data on corruption in the judiciary: Survey on the Independence of Judges 2016/17 www.encj.eu.

10 https://www.hurriyetdailynews.com/number-of-female-judges-and-prosecutors-in-turkey-at-its-highest-143963.