A bill providing for gender balance in parliament is being debated. It provides for a mechanism assigning a maximum of 12 additional seats for female candidates who are not elected in the general elections. This will guarantee that 40 per cent of our elected representatives come from the under-represented sex. The mechanism is limited in duration and expires after 20 years.
The opposition had signalled its agreement in general with the bill last year following an in-depth discussion in the parliamentary group and the party executive.
After all, it was the second Fenech Adami administration which had introduced the concept of “positive discrimination” in our constitution, introduced sex and gender as additional grounds of prohibited discrimination and overhauled Maltese family law to grant joint administration of matrimonial property to both spouses.
A husband could no longer transfer property acquired in marriage without the express approval of his wife. Legal custody of children was assigned to both spouses; besides, annual income tax returns could be filed separately when both spouses were in gainful occupation, thus considerably reducing the income tax rate for married couples.
However, as stated by the opposition leader last Tuesday, the bill is flawed and needs some important amendments.
Here are some suggestions.
It is surprising that such an important gender balance mechanism, increasing membership of the House of Representatives from 65 to 77 in order to accelerate the equality between the sexes, is not being entrenched in the constitution. This means that any government in the future may repeal or change this mechanism with an ordinary majority of one in parliament.
The proposed bill deserves to be enshrined in the constitution- Tonio Borg
It only makes sense that this corrective mechanism, which is limited in time, deserves to be enshrined in the constitution and that it may only be amended by a two-thirds majority of all the members of parliament.
The bill strangely provides that, should a third party be elected to parliament, this gender balance mechanism does not kick in. This is absurd. The fact that a third party is elected to parliament should not constitute an excuse or pretext for female candidates to be deprived of their additional seats.
Another flaw in the bill is that the selection of the 12 additional female candidates, or to be exact, candidates from the under-represented sex, takes place only after all casual elections, commonly known as by-elections, are held following every general election. Since a number of candidates from both parties are elected from two electoral divisions (12 at the 2017 general elections) the corrective gender balance mechanism will only be triggered off some six weeks after the general election.
As rightly pointed out by Nationalist MP Hermann Schiavone, one can easily amend the law to have the casual elections held immediately after counting the votes of all candidates at the general election.
The method is simple. The law should provide that candidates elected from two divisions will automatically and by law be considered to have retained only their seat in that division where they fared better electorally.
In this way, the electoral commission can proceed immediately with the by-election for the filling of the vacated seat, with all candidates who contested that division to be considered as candidates for that election. In this way, on day one of a new administration the entire parliamentary groups of both parties would be constituted. Besides, a prime minister would be able to select the members of his cabinet also from the additional female candidates elected through the new mechanism.
One last point. According to the constitution, a difference of 10 per cent is allowed in the voting population between the smallest and the largest electoral division. Consequently, it only makes sense that, in ranking candidates from the under-represented sex in order to choose the 12 additional MPs,, one should consider not the number of votes obtained but the percentage of those votes compared with the district electoral quota.
In so doing, one would by law choose the candidates who came closest to being elected to fill those seats.
The government should consult the opposition on these matters since a two-thirds majority is required for the approval of this constitutional amendment.
It did not consult the opposition on the precise contents of the bill when it was published. It should do so now.
Tonio Borg is former European Commissioner.