KO 13/15

The applicant, President of the Assembly of the Republic of Kosovo, referred to the Constitutional Court an amendment to the Constitution proposed by numerous deputies, and requested the court to make a prior assessment whether the proposed amendment diminishes any rights or freedoms under the Constitution. The amendment stipulates that no gender can be represented less than 40% in the positions of ministers and deputy ministers in the government. The proponents argued that a gender quota was needed because women represented no more than 10-15% in ministerial positions and the Law on Gender Equality had not been implemented. The Constitutional Court noted that the principle of gender equality was already included in many provisions of the Constitution and held that the introduction of gender-based quota to ministerial and deputy ministerial positions narrows the applicability of the constitutional safeguards for gender equality and diminishes the rights to gender-balanced participation in public bodies. The court further expressed concern that the proposed amendment may diminish the rights of deputies or qualified persons – from whom ministers are nominated – to become part of the government, and cited case law from the European Court of Justice and the French Constitutional Council against gender quota in government positions. In the court’s opinion, the principle of equal opportunity for both women and men should be applied instead, and positive discrimination whereby preference is automatically and unconditionally granted to a gender, notwithstanding the requirement of professional merit, is not supported by constitutional practice. The court also observed that the proponents of the amendment have not submitted any supporting evidence showing that the current constitutional safeguards of gender equality are insufficient. The implementation of the Law on Gender Equality is the responsibility of the government, controlled by the Assembly. For these reasons, the Constitutional Court concluded that the proposed amendment diminished constitutional rights and was therefore unconstitutional. (Also available in Srpski and English.)