The Parliamentary Assembly of the Council of Europe voted against an amendment last Monday that would have allowed the submission of all male lists of candidates for the post of judges to the European Court of Human Rights “in exceptional circumstances”. This rejection was supported by a resounding majority of the assembly in a humiliating rebuff to the position taken by the Maltese government.

The decision by the parliamentary assembly states: “The Assembly will not elect the judges in respect of Malta, Portugal and Slovakia. The Assembly has decided not to proceed to the election of the judges in respect of Malta, Portugal and Slovakia during the April 2007 part-session. It has asked the governments of those three countries to present new lists of candidates.

“The reasons are, as regards Malta and Slovakia, that their lists do not include candidates of both sexes and that the procedure followed at national level did not respect the Assembly’s recommendations regarding publicity and the principle of transparency.”

The parliamentary assembly was following the advice of its own Committee on Equal Opportunities for Women and Men, led by rapporteur Jose Mendes Bota from Portugal, embarrassingly for the Maltese government, a member of the European People’s Party that threw out a draft resolution by the Committee on Legal Affairs and Human Rights, which could be interpreted as having asked the parliamentary assembly to make an exception in the case of Malta.

In its Resolution 1366 (2004) on Candidates for the European Court of Human Rights, adopted during the January 2004 part-session, the Assembly decided that it would no longer consider lists of candidates for the European Court of Human Rights that did not include at least one candidate of each sex.

This rule was changed a year later through Resolution 1426 (2005) to allow for unisex candidate lists, provided they were from the underrepresented sex on the court, i.e. currently women.

The Committee on Legal Affairs and Human Rights proposed to the Assembly to amend the rules to allow the Assembly not to reject all-male lists in “exceptional circumstances” so as not to “reduce the Assembly’s ability to choose between three candidates who satisfy all the other selection criteria.”

But the Equal Opportunities Committee saw right through this: “There is only one single country which has found it ‘difficult’ to comply with the rule of the Assembly that a female candidate must be included on the candidate list.

“The judge for this country – Malta – was elected in January 1998 and took up his functions in November 1998 for a six-year term. Malta twice put forward an all-male candidate list to replace him (transmitted to the Assembly by the Committee of Ministers in March 2004 and in September 2006), but the elections have not been held, as the lists do not comply with the Assembly’s rules.

“The proposal of the Committee on Legal Affairs and Human Rights is, in fact, a proposal designed to change the Assembly’s rules to suit one single country, rather than make that one single country abide by the Assembly’s rules which it has already flouted twice!”

It added: “The argument put forward by the Rapporteur of the Committee on Legal Affairs and Human Rights, Ms Bemelmans-Videc (also EPP), to justify this proposal is that there may be exceptional circumstances where ‘a State has done everything possible to include members of the under-represented sex in the list of candidates – but without success because of the requirement to satisfy the other criteria concerning the choice of the best qualified candidates’.

“This argument is untenable,” the Equal Opportunities Committee said, “as it presupposes that a State may face a situation where there is not one single woman at least as qualified as a man – which is simply inconceivable.

“Few people know that there is no citizenship requirement to become a judge on the European Court of Human Rights. In other words, you do not need to hold the citizenship of the country proposing you – indeed, you do not even have to hold the citizenship of a High Contracting Party (i.e. a European citizenship). Thus, for example, a Swiss judge is currently serving on behalf of Liechtenstein, and, in the past, there has even been a Canadian judge on the court.

“Malta is not the smallest member State of the Council of Europe by any means. It has nearly 400,000 inhabitants, half of them women. There are two female judges and six female magistrates in Malta, and many more female advocates (the current judge on the court, Giovanni Bonello, was an advocate in private practice before he was elected). The country thus has a sufficiently large pool of highly qualified female potential candidates.

“However, even if it had not, it could choose a well-qualified female candidate from another country (the United Kingdom and Italy would spring to mind, the two countries which most influenced Malta’s legal tradition over the centuries). In fact, Malta could even choose among the most famous human rights lawyers globally, from Mary Robinson over Asma Jahangir to Shirin Ebadi. These candidates would certainly not be less qualified than the three male candidates Malta has proposed so far.

“Furthermore, much smaller countries than Malta have included qualified women candidates on their candidate lists. In fact, in several cases, these candidates were even elected judges to the European Court for Human Rights, such as Isabelle Berro-Lefèvre for Monaco (population: around 32,000) and Antonella Mularoni for San Marino (population: around 30,000).

“The true impediment to the inclusion of a qualified woman candidate on the list submitted by Malta thus appears not to be a lack of qualified female candidates, but a lack of respect for the principle of gender equality.”

The Maltese National Commission on Equality has been completely silent on this issue since at least two Maltese lawyers applied but were not included by the government in its short list.

A lawyer commented to this paper: “It is indeed an indictment on this current government that it humiliates the entire female Maltese population in this way and announce to the international community that no female lawyers in Malta are qualified to sit as arbiters on the Court of Human Rights!”