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Press release. Exclusion of male military from excercising the right to parental leave is unconstitutional
On November 1, 2012 the Constitutional Court passed the judgment on the constitutionality of Article 32 paragraph (4) letter j) of the Law on military status (Complaint no. 12a/2012). The judgment was sent for publication in the Official Gazette (Monitorul Oficial).
Circumstances of the case
The case originated in the complaint lodged with the Constitutional Court on June 6, 2012 by the Parliamentary advocate (ombudsman) Mr. Tudor Lazăr on the constitutionality review of Article 32 para. (4), letter j) of the Law on military status which provides for granting of parental leave only to military women, not men.
The author of the complaint particularly claimed that by specifying the category "military women", the challenged norm discriminates the military based on sex, to obtain childcare leave and by not including the parental leave in the calendar length of military service, prejudices the person's right to free choice of employment, contrary to Articles 16, 18, 43, 48 and 49 of the Constitution.
The complaint was judged by the Constitutional Court in the following composition:
Mr. Alexandru TĂNASE, President, Judge-Rapporteur,
Mr. Victor PUŞCAŞ,
Mr. Dumitru PULBERE,
Mr. Petru RAILEAN,
Mrs. Elena SAFALERU,
Mrs. Valeria ŞTERBEŢ, judges
Conclusions of the Court
Having heard the parties' arguments, the Court held that the states enjoy a wide margin of appreciation in the field of national security including armed forces and that military rights, in some cases, might be subject to greater restrictions than those authorized for civilians.
At the same time, the Court found as unjustified the alleged risk for operational efficiency of the army, because no conclusive information was submitted demonstrating that extending parental leave for male soldiers would harm the fighting power and operational effectiveness of the armed forces while granting this right to female military implies no such risk.
It is possible for the Court to achieve the legitimate aim of protecting national security otherwise than by limiting the right to parental leave for female military and the exclusion of male military from exercising the same right.
The Court held that given the army's special requirements, excluding the right to parental leave can be justified in terms of a military man or woman who due to certain factors such as his /her hierarchical position, scarcity of technical qualifications or his /her participation in military operations on the field cannot be easily replaced in his /her duties. However, in Moldova, parental leave entitlement is based solely on military sex. By exclusion of male military from exercising the right to parental leave, the provision in question imposes a restriction which automatically applies to all male military, regardless of their position in the army, the availability of substitute or their personal situation.
The Court stated that such a general and automatic restriction imposed by a group of persons, being based on sex, goes beyond the acceptable scope of state's margin of appreciation, no matter how long it would be, and that is inconsistent with the constitutional norms.
At the same time, the Court took into account the fact that unlike maternity leave which aims to allow the mother to recover from childbirth and to breastfeed her baby, if she wishes, the parental leave and parental leave allowance refer to posterior period and are conceived to enable the beneficiary to stay at home and care for the child personally.
The Court rejected the argument that specifically a woman has the primary obligation to educate and raise children, that the military woman practices an occupation characteristic to men and that the Moldovan society is not ready to accept equality between men and women serving in the armed forces. In this context, the Court concluded that the traditional division of roles based on gender in society cannot be used to justify the exclusion of men, including those who work in the army, from exercising the right to parental leave.
At the same time, the Court underlined that due to fundamental importance of the prohibition of discrimination based on sex, the possibility of waiving the right not to be subjected to such discrimination is not acceptable, because it would be contrary to an important public interest.
For these reasons, the Court ruled that the exclusion of male military from exercising the right to parental leave, while female military enjoy this right, cannot be considered to be based on objective and reasonable justification. Therefore, the Court held that this difference in treatment constitutes a discrimination based on sex, contrary to Article 16 combined with Articles 48 and 49 of the Constitution.
Having regard to the fact that Article 32 para. (4) letter d) of the same law refers to the right of military women to childcare leave, that items 67 letter j) Article 88 para. (4) letter b), 108 letter i), 116 letter e), 131 of the Regulation on fulfillment of military service in the Armed Forces approved by Government Decision no. 941 of 17 august 2007 reproduce the legal norm contrary to the Constitution, the Court held that the same arguments arise on their unconstitutionality. In the same context, the Court adopted an address.
Concurrently, the Court held that although it invoked the alleged incompatibility of the contested norm with the right to work, in the part related to non-inclusion of parental leave in the calendar length of military service neither in the complaint's content, nor in the public plenary session, the author of the complaint did not identify any category of persons under identical or similar legal situation in relation to which the female military would have been discriminated from this perspective. Thus, the Court retained that complaint's author had not argued this position and it ceased the process in this part of complaint.
Judgment of the Court
Based on the above arguments, the Constitutional Court declared unconstitutional the word "woman" from the compound word "military woman" in Article 32 para. (4) letters d) and j) of the Law on status of the military, as well as in items 67 letters j), 88. para. (4) letter b), 108 letter i), 116 letter e), 131 of the Regulation on the fulfillment of military service in the Armed Forces. The Court also ceased the process of constitutionality review of the phrase "but it is not included in the calendar length of military service" from letter j) para. (4) Article 32 of the Law on military status. The judgment of the Constitutional Court is final, cannot be subjected to any remedies, shall enter into force upon adoption and be published in the Official Gazette (Monitorul Oficial) of the Republic of Moldova.
The full text of the judgment is available on the website of the Constitutional Court http://www.constcourt.md/
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