Application of the quota provision to the Judicial Appointments Board and the Judicial Training Board (TAS 473/2021, issued on 26 October, 2021)

The Ministry of Justice requested the opinion of the Ombudsman for Equality on whether or not the quota provision of the Equality Act should apply to the Judicial Appointments Board and the Judicial Training Board. The Judicial Appointments Commission prepares and submits a reasoned proposal for the appointment of permanent judges to the Finnish Government for presentation to the President of the Republic of Finland. Members are appointed by the courts, the Finnish Bar Association, the Finnish Prosecution Service, and the Ministry of Justice on proposals from universities. 

The Judicial Training Board is responsible for planning training for court staff, from judicial traineeships to in-service training, in cooperation with the National Courts Administration and the courts. Its members are appointed by the Judicial Training Board, the Prosecutor General, the Finnish Bar Association, the universities proposed by the Ministry of Justice, the National Courts Administration.

Under section 4 of the Equality Act (Act on Equality between Women and Men 609/1986), the authorities must promote equality between women and men in all their activities in a goal-oriented and planned manner and create and establish administrative and operational practices that ensure the promotion of equality between women and men in the preparation and decision-making process. In particular, circumstances which prevent the attainment of gender equality must be changed.

Pursuant to section 4a of the Equality Act, the proportion of both women and men in government committees, advisory boards and other corresponding bodies, and in municipal bodies and bodies established for the purpose of intermunicipal cooperation, but excluding municipal councils, must be at least 40 %, unless there are special reasons to the contrary.

If a body, agency or institution exercising public authority, or a company in which the Government or a municipality is the majority shareholder has an administrative board, board of directors or some other executive or administrative body consisting of elected representatives, this must comprise an equitable proportion of both women and men, unless there are special reasons to the contrary.

Authorities and all parties that are requested to nominate candidates for bodies referred to in this section must, wherever possible, propose both a woman and a man for every membership position.

The quota provision of the Equality Act applies separately to both full members and alternate members. The quota requirement may be waived for a specific reason, for example where there are no experts in a particular field other than those of the opposite sex. In the view of the Ombudsman for Equality, the concept of special or exceptional reason must be interpreted narrowly and the person invoking a special reason must justify their decision. Special reasons should not be invoked retrospectively, at least not if they were not taken into account when the institution or body was established. The pre-establishment authority is responsible for ensuring that the quota provision is adhered to. 

Under section 3 of the Finnish Constitution, jurisdiction is exercised by independent courts, with the Supreme Court and the Supreme Administrative Court being the highest courts.
According to the Government Decree on the Constitution (HE 1/1998), the independence of the courts means that the courts must be independent of the influence of other parties in their judicial activities. This applies to the legislator, the government, and the authorities, as well as to the parties to a dispute, for example. The court is also independent within the judiciary itself. A higher court must not seek to influence the decision of a lower court in an individual case and must instead wait for a possible appeal stage.

The Ombudsman for Equality has stated that the independence of the courts means independence in the administration of justice. The establishment and election of the members of the boards in question is an administrative function and, therefore, in the view of the Ombudsman for Equality, there are no grounds, for example because of the independence of the courts, for not applying the quota provision provided for in section 4a of the Equality Act to the composition of these bodies.

In its opinion, the Ombudsman of Equality considered that the Judicial Appointments Board and the Judicial Training Board are state institutions within the meaning of section 4a of the Equality Act, to which the quota provision applies. 

15.11.2021