June 14, 2023. Final conclusion of the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees on the PAN and BE projects: “This solution is simple, effective and does not even require a constitutional revision, so there is no reason for Parliament to exclude the Constitutional Court from the gender equality agenda. […] all formal, constitutional and regimental requirements are deemed to be met […] The Committee on Constitutional Affairs, Rights, Freedoms and Guarantees considers that the two projects meet the conditions to be considered and voted on in plenary.”

The BE bill introduces the “criterion of parity in the composition of the Constitutional Court”. That of the PAN “guarantees the balanced representation of gender in the composition of the Constitutional Court and strengthens the transparency of the process of co-opting judges”.

The services of the Assembly of the Republic (in the technical note) and the socialist deputy Isabel Moreira, constitutionalist, draftsman of the opinion on draft laws No. 739/XV/1 (PAN) and No. 787/XV/1 (BE) , consider that the “introduction of gender quotas of 40% of the composition” of the Constitutional Court does not violate any constitutional requirement.

No deputy, from any party, questions anything. “Unanimously Approved.” All voted in favour, including Cláudia Santos, deputy from the PS and vice-chairman of the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, Joana Sá Pereira, coordinator of the Socialist deputies in this committee, and Bruno Aragão, deputy from the PS.

But yesterday what seemed peaceful surprised Inês Sousa Real, leader of the PAN, and Isabel Moreira, of the PS: eight PS deputies (Filipe Neto Brandão, Cláudia Santos, Sérgio Sousa Pinto, Joana Sá Pereira, Marcos Perestrello, Susana Correia, Hugo Oliveira and Bruno Aragão) announce in an article published in the PublicWhat oppose the “imposition of a gender quota” in the Constitutional Court because the projects are “unconstitutional” and also because, since “justice” is one of the areas “in which women have been given more space”, the “need to correct results by setting quotas” is not justified.

They say more: “that the rigidity of the law is not always the best way to achieve the desired results” and that “only when there is no other remedy that can be mobilized does the distortion of freedom of choice, in which the imposition of quotas translates, become legitimate”.

Isabel Moreira is “surprised” and “shocked” to see that “these authors” wrote that “it has yet to be shown that quotas are relevant. What they say in the article [que as quotas são uma “distorção da liberdade de escolha”] is that they are against this and any quotas”.

“I have a hard time understanding this. I don’t understand how people who work in the same committee, in the same party, who have coordination meetings, never said anything. Is weird. There was not a word. I am amazed at the position of Cláudia Santos and Joana Sá Pereira, my coordinator in the committee. I was not aware of her position. I learn from the newspapers the position of the PS coordinator in the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees”, he confesses.

The “bewilderment” of the Socialist deputy, in addition to the fact that he “considers this vote against from PS deputies as very strange” when the “trend was for approval”, extends to the “strange reasoning to say that there are only constitutional qualifications are for political quotas”. .

There is only one conclusion: “They say that all quotas in force are unconstitutional.”

Inês Sousa Real, who also says he is “surprised”, reads exactly the same as Isabel Moreira: “This interpretation would result in all quota laws being declared unconstitutional. The arguments used [pelos oito deputados do PS] they are quite dangerous. It’s a legacy of civilization.”

The leader of the PAN, speaking “in a conservative wing of the PS”, rejects the statement that the Constitution, by setting two requirements for the appointment of a judge to the Constitutional Court – “six of them must be judges from other Courts” ; the others must be lawyers – avoid introducing quotas.”Being a woman is not a requirement, it is a condition. What they say is absurd. Especially in a sector where there is serious gender inequality.”

Elza Pais, president of Socialist Women and former Secretary of State for Equality, agrees with Isabel Moreira’s argument, claiming that, “if there are questions about the constitutionality of the projects, the Constitutional Court must decide. I would vote for it. And I join many lawyers of recognized merit, namely Professor Teresa Pizarro Beleza, Helena Pereira de Melo and Teresa Violante, who believe that there is no point in not having parity in the Constitutional Court”.

Social Democratic deputy Paula Cardoso thinks so the “principles” of the BE and PAN projects “are correct, not questionable”, and recalls that the Constitutional Court, contrary to the arguments of the eight socialist deputies, “it is not a court like the others, it is a legal-political court. In addition to analyzing issues beyond the scope of the rest, it should be remembered that 10 of the 13 judges are political appointments, they are appointments of Parliament”.

The inequality

The list of all 66 judges of the Constitutional Court, drawn up in 1983, included only 15 women – 22.7%. Only in 1989 did a woman (Assunção Esteves) become a judge of the Constitutional Court and it took almost 30 years for a woman (Maria Lúcia Amaral) to become vice president. In its 40 years of existence, a woman has never held the position of President of the Constitutional Court.