Colombia's Constitutional Debate on Gender Quotas: The Link between Representation, Merit, and Democracy/El debate constitucional sobre las cuotas de genero en Colombia: el vinculo entre la representacion, el merito y la democracia/ o debate constitucional sobre as quotas de genero na Colombia: o vinculo entre a representacao, o merito e a democracia. - Vol. 31 Nbr. 1, January 2019 - Revista Desafíos - Books and Journals - VLEX 775573517

Colombia's Constitutional Debate on Gender Quotas: The Link between Representation, Merit, and Democracy/El debate constitucional sobre las cuotas de genero en Colombia: el vinculo entre la representacion, el merito y la democracia/ o debate constitucional sobre as quotas de genero na Colombia: o vinculo entre a representacao, o merito e a democracia.

Author:Ruiz, Felipe Jaramillo


In recent years, there has been an exponential growth of studies on gender quotas (Boldeon Gonzalez, 2010; Krook, 2010; Rubio-Marin, 2012). These researches have extracted some of the critical reasons for quota adoption (Bush, 2011; Hughes, Krook & Paxton, 2015; Towns, 2010). However, not many empirical analyses have been published about the ideas and values articulated in favor and against gender quotas (Murray, Krook & Opello, 2012).

By examining the constitutional debate on gender quotas in Colombia, I assess how ideas of merit supported the arguments in favor and against their constitutional validity. I analyze the main opinions put forward by the opposing fronts of the constitutional deliberations. On the one side, the participants that opposed the measure argued that quotas undermined the authority of women occupying public positions. They held that quotas were an attack on women's merit, perpetuating the social bias that without this mechanism women would be incapable of reaching high power offices. On the other side, the participants that supported the soundness of the quota argued that the aim was to correct the social prejudices that acted against women's merit. They claimed that quotas were one step towards transforming the stereotypes that portray women as incapable and unable. By revealing this emphasis on merit during the Colombian constitutional evaluation, I argue that the debate on gender quotas exposes the narrow conception of representation. In this note, I claim that the persistence of merit-based arguments fails to question the subjective nature of merit in the evaluation of human experiences, capabilities, and potentials. In this vein, the article contributes to the debate on women's global leadership by revealing the risks of grounding the struggle for women's democratic representation on ideas of merit.

The object of analysis is the deliberations on the constitutionality of gender quotas in Colombia. In this sense, I examine two crucial rulings--C-371/00 and C-490/11--, in which the Colombian Constitutional Court evaluates the validity of gender quotas. As an interpretative and inductive exercise, the assessment of the decisions seeks to identify the primary values, beliefs, and ideas in favor of and against the constitutionality of the quota mechanism. Furthermore, by contrasting the theoretical discussion on women's representation and the constitutional findings, I show how the overarching emphasis on merit blocks quotas' potential for advancing towards a model of democracy that does place the feminine outside of the political terrain and allocates phallocentric traits to the public sphere. Conclusively, I argue that the deliberation on the constitutionality of gender quotas provides critical insight into the gendered nature of the state.

I structure the research into three sections. First, I explore the way feminist scholars have addressed women's representation in public decision-making. Second, I study how gender quotas have become one of the preferred mechanisms for advancing women's representation. Third, I analyze the debate on the constitutionality of the gender quota in Colombia. In the conclusion, I contrast the theoretical discussions on representation and the case study's findings.

Women's Representation in Public Decision-Making

Historically, a sexual contract excludes women from decision-making (Boucher, 2003). This contract "is about the right of men's government over women, which includes access to their labor and bodies" (Mills & Pateman, 2011, p. 120). By drawing a boundary between the public and the private domain, the prevalent masculine order places the feminine outside of the political terrain and allocates phallocentric traits to the public sphere (Jaramillo Ruiz & Erazo, 2016; Prokhovnik, 1998; Ruiz & Rubio-Marin, 2008). Under this patriarchal system, women's representation in the public sphere encounters numerous hurdles that derive from cultural, legal, political, economic, and social circumstances (Hoecker & Fuchs, 2004; Inglehart, Norris & Welzel, 2002).

With the purpose of contesting male dominance in the public sphere, feminist put into question structures that prevent women from partaking in public decision-making and power (Childs & Dahlerup, 2018). They embrace normative projects that promote women's equality both at national and international level. For the most part, they seek to permeate state institutions through the formulation of gender equality norms and policies that remove the barriers that menace women's political engagement (Hoecker & Fuchs, 2004; Piscopo, 2015). In this sense, one of the core elements in feminist agendas has been to increase the descriptive and substantive representation of women positions of power (Dassonneville & McAllister, 2018).

Scholars that focus on descriptive representation argue that the inclusion of women in the decision-making process is fundamental for democracy (Childs & Dahlerup, 2018; Hoecker & Fuchs, 2004). They assume that women would do a better job of representing women's issues, priorities, demands, and concerns (Espirito-Santo, Freire & Serra-Silva, 2018; Martin, 2018). From this perspective, they have shown that high levels of women's elected representation in democracies translate into greater substantive representation, leading to an increase in responsiveness to women's reproductive health and education (Swers, 2005).

Nevertheless, the link between women's descriptive and substantive representation has been subjected to scrutiny. Some scholars have shown that women's descriptive representation does not necessarily imply that women's issues will find more space in the political deliberations (Dassonneville & McAllister, 2018; Espirito-Santo, Freire & Serra-Silva, 2018; Piscopo, 2015). In this sense, they have questioned the meaning of substantive representation mean, insisting on the importance of investigating women representational claims (Celis et al., 2008). Fundamentally, by analyzing women's opportunities to participate in the process of forming political agendas and influencing the possible outcomes, this group of researchers has insisted on examining women's substantive representation (Franceschet & Piscopo, 2008).

Despite their differences, feminist theories on descriptive and substantive representation conceive lack of women representation as problematic (Siim, 2000). They argue that a system of government built on the principle of justice is not one that excludes more than half of its population (Hoecker & Fuchs, 2004). Hence, if the strength of democracy lies in the values of equality and representation, there is an inherent injustice in women's marginalization from public decision-making, government programs, and power (Young, 2002). In this sense, as long as women are not full and equal members and citizens, democratic practices will continue to be flawed (Pateman, 1989). At the heart of the matter, the discussion on women's representation is intimately tethered to ideas on gender equality, "understood both a means and an end, calling for the empowerment of women and a new ethic of shared responsibility in public and private life" (Montano & Rico, 2007, p. 10). Accordingly, women's representation seeks to transform the political sphere, making it more inclusive and diverse (Young, 2002).

Ultimately, three key ideas buttress feminists' objectives concerning women's representation in the public sphere. The first idea is that women and men should have the same rights and opportunities. The second idea is that all acts of discrimination and exclusion towards women can be, and should be, eradicated. The third idea is that women's rights are not solely a problem of women. They are a concern of society as a whole. Using these three premises, feminists challenge the masculine composition of the public sphere (Inglehart, Norris & Welzel, 2002). They open the door for women's public engagement, weakening the male bias of the state.

Gender Quotas and Women's Inclusion in the Public Sphere

In international human rights frameworks, gender quotas have progressively been considered a necessary affirmative action "to realize de facto or substantive equality for women" (United Nations Committee on the Elimination of Discrimination Against Women, 2004, p. 4). From this perspective, although gender quotas are intended to tackle women's descriptive representation, the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) considers that gender quotas enhance women's substantial representation. How did gender quotas become an international trend in the promotion of women's representation?

In 1991, Argentina became the "first state in the world to establish by law a quota for the threshold of candidates that must be included on party slates" (Gray, 2015, p. 289). It devised a groundbreaking legislated candidate quota mechanism aimed at correcting women's underrepresentation in the public sphere. Argentina is more than just another case of gender quota enactment. Within the Latin American quota literature, Argentina's case is a milestone for women's political rights (Carrio, 2005; Gray, 2003; Krook, 2010). It invented the main quota mechanism that exists today in the region. Because of this, writings about quota adoption in Mexico, Brazil, Nicaragua, Costa Rica, Panama, among others, recurrently mention its significance (Araujo, 2003; Baldez, 2004; Hinojosa & Gurdian, 2012; Krook, 2010; Sagot, 2010). In the words of Jennifer M. Piscopo, "Argentina became the first country to elevate an internal party strategy to a national legal mandate, and countries across Latin America (and the globe) soon followed" (2015, p. 27).

Since Argentina's path-breaking quota enactment, seventeen Latin American countries have adopted legislated candidate gender quotas (International IDEA, 2018). In this sense, legislative candidate quotas have been the preferred arrangement...

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