There’s no substitute for merit
The government has been criticised by various people and organisations – and by the Labour Party, too, of course – for failing to include a woman among its nominees for the position of judge at the European Court of Human Rights. When the list of three nominees was sent back with instructions to include a woman or else, the government defended its decision on the basis that “where a contracting party has taken all necessary and appropriate steps with a view to ensuring that the list contains a candidate of the under-represented sex, but without success, and especially where it has followed the Assembly’s recommendations advocating an open and transparent procedure involving a call for candidatures, the Assembly may not reject the list in question on the sole ground that no such candidate features on it.” This was accepted.
My first reaction to this failure to include a woman in the list was one of immense irritation. It has been my experience of the working world over the last couple of decades and more that any fool of a man is all right, but a woman must be exceptional. I am not predisposed to arguments based on emotion, rather than on rationality, information and commonsense, and so I thought about it some more. If I hated it so much in the past when I was bypassed by men with far fewer skills, how on earth can I now advocate a situation in which women candidates with fewer qualifications than the men get the job purely on the basis of gender?
How would I feel if I and some other women, all of us eminently qualified in our field, were to be short-listed for an important post, only to be told that a man with a fraction of our experience and expertise is to be shoved onto that short-list so that the organisation in question might meet its gender-allocation requirements? I would be mightily annoyed, especially if the post is likely to go to the far less qualified man, on the grounds that men are under-represented and balance must be struck. What’s sauce for the goose is sauce for the gander. I don’t think men should be exposed to unfair competition from inadequately qualified women, by third parties who are seeking to address some gender issue or other. That’s what has been happening to women for generations. You don’t redress a wrong by creating another wrong.
Candidates either make the grade or don’t make the grade, and gender has nothing to do with it. In my working life, I’ve had to play second fiddle to men who knew a fraction of what I did and who had half my skills, which meant that I ended up making up for their shortcomings like a sort of glorified workplace bridesmaid. Having experienced this, there is no way on earth that I am going to wish the same experience, but in reverse, on a man, just out of some kind of ‘now it’s our turn’ attempt at balancing the scales. I wouldn’t like it at all if my son or my husband were to be bumped out of the equation by a woman half as qualified, and so I wouldn’t like it if the same thing were to happen to somebody else’s son or husband. It’s just plain wrong.
The three names that Malta submitted are those of Chief Justice Vincent Degaetano, Judge Joseph Camilleri and Judge Joseph Filletti, all of whom sit in the Court of Appeal. Is there any woman in Malta who is at par with that kind of experience? No. Including a woman of lesser merit just for the sake of including a woman would not be an insult only to the three men on this list, but also to the woman herself, who is effectively being told “You don’t make the grade, but we’re going to include you anyway in the role of token woman.” The attendant risk with this course of action is the obvious one that the woman of lesser merit will be selected in preference to one of those three highly qualified judges, on the basis of some distorted view of gender balance. I can’t possibly approve of such silliness. We need to dispatch to the European Court of Human Rights the best available candidate, regardless of what that person’s gender might be.
Our problem with this candidature is invariably going to be that Malta’s second appointee to the ECHR set the bar rather high – beyond the reach of most of the available competition, in fact. Giovanni Bonello, though he was neither a magistrate nor a judge but a practising lawyer until his ECHR appointment, made his name in human rights law. I think it is safe to say that in this particular field no other Maltese person is as well respected as he is. He was always going to be an impossible act to follow.
The shortfall in suitably qualified women is temporary, the result of social history so far. We cannot make up for lost time by trying to compress it. These matters must take their natural course. For decades, women lawyers were the exception in Malta, and this, coupled with excessive paternalism in our society, led to there being no appointments of women to the bench. Gradually and very recently, a few women magistrates were appointed and now, we have our first two women judges. Meanwhile, the number of women lawyers has exploded. Over the past few years, there have been more women reading law than there are men. This means that among the youngest generation of lawyers, the gender balance is going to swing towards women. Law is increasingly a woman’s career, and within 20 years, it’s likely that we’re going to have our European Court of Human Rights nominee list sent back because there’s no man on it.
But first we’ve got to start by increasing the number of women judges. It was a disappointment that the most recent appointment to the bench was a man – not because of who he is, not at all, but because I am certain there are one or two women lawyers as qualified as he is, perhaps even more so. In a situation like that, where the candidates are of equal merit but the situation is screaming out for a woman, it’s best to go for the woman. Two women judges are not enough. It is quite ridiculous.
This article is published in The Malta Independent today.
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It seems that the PL is saying the same thing, this is an excerpt from an article written by a Labour MP published in last Monday’s The Times.
http://www.timesofmalta.com/articles/view/20090209/opinion/for-men-only-part-2
[Daphne – That’s Helena Dalli rather than the Labour Party’s official position. The party’s official position was given by its spokesman on justice, Jose Herrera. He said that the government should reconsider its decision “and comply with the European Council’s instructions in the interest of Malta’s credibility.” Here’s the link http://www.timesofmalta.com/articles/view/20090209/local/government-criticised-over-all-male-judge-nominations
Just a small note. To my knowledge we have two women serving on the Bench. Judge Anna Felice and Judge Abigail Lofaro – still lagging behind for women judges.
[Daphne – That’s right. I’ll correct it.]
Another problem with “positive discrimination” is that even if a woman DID get somewhere purely on merit there will always be people wondering whether she deserved it or not, possibly including herself!
Daphne, are you actually criticizing the government? Fascinating!
[Daphne – I do so on a regular basis, but in this case, I’m not. I’m criticising the European Council for having insisted that Malta puts a woman on the list just for the sheer hell of it. You might have been confused by the fact that Helena Dalli, in her very good article to which I posted a link, said pretty much the same thing as I did.]
Actually, there are currently two judges who are women – Judge Anna Felice and Judge Abigail Lofaro. It’s only a matter of time before there are more. This gender business is getting a bit tedious …..
[Daphne – Thanks. Somebody else pointed that out and I corrected it.]
I disagree, because what the Council of Europe is proposing here is not to appoint three judges, but to propose a ‘short-list’ of three potential judges, from which one may be chosen, eventually, by the Council of Europe, and that short-list needs to include at least one woman. There is therefore no risk of having an incompetent woman appointed to the post, but on the other hand this arrangement prevents a situation in which women who are otherwise capable are overlooked simply on the basis of their gender. So the positive discrimination is not at the point of selection but before – this enables women to be considered while not guaranteeing that a woman will be chosen. The end result will still be that the person most suitable for the post will be chosen.
The new judge Zammit Mckeon is quoted as saying in today’s The Times that he “advised young lawyers not to bite off more than they could chew, and to keep a sense of humility because the sun did not rise when they became lawyers”.
Whatever prompted him to say this? Will he discriminate against young lawyers? Does he hold a grudge against young lawyers?
Perhaps it would have been more in order had he shed some light on his sentencing policy. Will he also give suspended sentences to paedophiles, and ban publication of their names?
I couldn’t agree more with you about this. In a world where it is possible for anyone to reach the top if they are the best person for the job (US has a black President, Germany has a female chancellor, Iceland has a lesbian Prime Minister etc etc) there is no room for positive discrimination, especially in an institution such as the ECHR which is there to protect us from discrimination.
Nevertheless we have people like Margot Wallstrom, a Vice President of the European Commission, who is still asking for there to be at least one female President of the 3 EU Presidents following the Lisbon Treaty (European Council, Commission and Parliament). Maybe because there are more than 3 men who are far better qualified than herself and only Merkel comes to mind as a more suitable female candidate and she is unlikely to want the job.
(As a side note in one of your comments above you mention the European Council while you meant to refer to the Council of Europe – the two are separate bodies.)
[Daphne – Yes, I know. Unfortunately, I was quoting The Times.]
Daphne – you describe Vanni Bonello as “Malta’s second appointee to the ECHR”. Not so! Don’t you remember the hullabaloo when the Nationalists decided to replace the Vice President of the ECHR (Prof.J.Cremona) with the then minister’s brother, Giuseppe Mifsud Bonnici? Ironically, it was Labour’s Alfred Sant who eventually appointed the Page Thirteen writer to the ECHR.
In friendship – John
[Daphne – I actually first had Giovanni Bonello down as the first ‘Malta incumbent’. In fact, if you read my article on http://www.independent.com.mt, you’ll see that he’s down as the first there. Then somebody emailed to remind me about Mifsud Bonnici – he didn’t loom large on my horizon, and I’d completely forgotten – so I changed it to ‘second’ on my blog. Then I remembered your father-in-law, Professor Cremona, and things began to seem increasingly complicated, so I checked with Judge Bonello, who said that actually, I was “almost right” when I said he was the first, in the sense that he is the first ‘Malta’ judge at the new, full-time court. The other two ‘Malta’ judges, your father-in-law and Professor Mifsud Bonnici, sat in the former court, which was part-time. And that explains the mini-confusion. In friendship, too.]
Technically the Council of Europe is a rather powerless body – its the European Council where all the big decisions are taken.
The Times of Wednesday, April 28, 2010, it has been reported that Judge Lofaro’s nomination to serve on the ECHR was based ‘on competence not gender’.
The choice of this nomination therefore seems to have eclipsed the competence of the other six female applicants for this post.
It would determine veritable justice to the present nomination if, at least, the names of the other six female contestants be publicly known so that your readership and that of The Times would indeed acclaim Judge Lofaro’s nomination ‘on competence not gender’.