State: Quota for women in local councils isn’t discriminatory

Representatives from the Attorney General’s Office argued at High Court on Tuesday that establishing a quota for women in local councils isn’t unconstitutional or constitute gender discrimination.

Moosa Anwar, leader of Juhoory Party (JP)’s Youth Wing, has filed constitutional motion with the High Court, stating that the revision to Decentralization Act to establish a quota for women in local councils is unconstitutional.

The second hearing in the case was held at the High Court on Tuesday.

The state argued that though Moosa Anwar said that establishing a quota for women in local councils violates Article 17 of the Constitution, Article 17 (b) of the Constitution allows for the enactment of the provision.

ARTICLE 17:

• (a) Everyone is entitled to the rights and freedoms included in this Chapter without discrimination of any kind, including race, national origin, color, sex, age, mental or physical disability, political or other opinion, property, birth or other status, or native island.
• (b) Special assistance or protection to disadvantaged individuals or groups, or to groups requiring special social assistance, as provided in law shall not be deemed to be discrimination, as provided for in article (a).   

The state argued that women are disadvantaged in society, and are therefore entitled to special assistance and protection.

The state said that the Constitution therefore envisions affirmative action such as quotas to provide equal opportunities for women.

“It’s clear in light of Article 17 (b) of the Constitution that the Constitution envisions affirmative action from the state to provide equal opportunities for women even in Maldives,” argued the state.

The state said that it has been established under international conventions that quotas for women cannot be considered discriminatory, that scholarly articles establish that women are entitled to special social protection, and that precedence set by the European Court of Human Rights and European Court of Justice establish that quotas for women isn’t gender discrimination.

The state said that developed nations continue to practice quotas for women for electoral positions under substantive equality, a fundamental aspect of human rights law that is concerned with equitable outcomes and equal opportunities for disadvantaged and marginalized people and groups in society.

The state said the practice is also in use in nations such as Kenya, India, and South Africa.

The state said it does not believe establishing a quota for women in local councils violates the fundamental rights and freedoms declared on the Constitution, and asked the court to rule as such.

In response, Moosa Anwar countered that while he believes that special action may be taken to provide equal opportunities to specific groups, he does not believe that special action taken under Article 17 (b) should result in discrimination of another group.

He said that allowing quotas for women opens opportunity for those who win considerably lesser votes to get elected.

Moosa Anwar responded to the state’s argument of quotas for women being practiced in other nations by stating that the nations in question introduced quotas after making necessary amendments to their constitutions.

He maintained that the Maldivian Constitution does not allow for quotas for women, and that quotas can only be introduced after making necessary amendments to the Constitution.

The state had said that introducing a quota for women in local councils had been made an electoral pledge by the current administration due to low representation of women in local councils.

Moosa Anwar responded that quotas’ being an electoral pledge doesn’t excuse violation of the Constitution.

He said that given that Article 18 of Chapter II of the Constitution establishes it as the duty of the state to protect and promote the rights and freedoms declared in the Chapter, the state believing it to be its duty to infringe on and curtail the very same rights and freedoms, is a wrongful interpretation of something the state is obligated to do under Article 18.

He said that providing quotas for electoral positions to a specific gender, will allow for opportunity for that the right to vote to be reserved for a specific gender as well.

Moosa Anwar questioned why similar quotas weren’t set for parliamentary seats, and said that the lack of quotas for women in the parliament proves that the state lacks sincerity.

The High Court will hold one more hearing in the case before issuing its ruling.

The case is overseen by a panel of five judges. The bench is presided over by Judge Mohamed Niyaz, accompanied by Judge Ali Sameer, Judge Abdul Rauf Ibrahim, Judge Hussain Shaheed, and Judge Hathif Hilmy.