Wednesday, 31 March 2010

Gay Rights, Direct Rule and a Government in Crisis?

So the UK Government through its Foreign Office is flexing, at last, its constitutional muscle! It has long been the view of this blogger that the 2006 Constitution is not a decolonizing constitution.  Additionally, the referendum, to approve it, was not an act of self-determination. Both contrary to what the Chief Minister has always argued and would have us all believe.  It is scary to think that our Chief Minister is so deluded in this belief.  Support for the view of this blogger now comes in the form of comments and action by the Foreign Office on the issue of gay rights (see the previous blog).

Although the UK Government has stated (according to the Chronic) that all UKOTs, which includes Gibraltar, (in fact more so in its case because it is the only one in Europe, so it is bound by the European Convention on Human Rights) that discriminatory laws affecting gays and other discriminatory laws dealing with sexual behaviour cannot continue in Gibraltar.  The UK Government will ensure, it seems, compliance by Gibraltar with international obligations.  Rightly, it points out that constitutionally, external affairs is within its ambit of responsibility and control, which would include compliance with international obligations.

Although the Foreign Office remind UKOTs that it can legislate directly by Orders in Council, it seems to be allowing the Government of Gibraltar time to fulfill these obligations by enacting appropriate legislation in the Parliament of Gibraltar.  Was this not the same as the threat of direct rule levied against the GSLP when they were in Government that was so criticised by the GSD and caused such a rumpus at the time?  Will the GSD Government not be criticised now in equal measure for causing the circumstances that have led to such a retrograde step to be considered by the UK Government despite its proclamation that Gibraltar is no longer a colony?  It seems that initially the Foreign Office have intervened in the proceedings before the Supreme Court (see the previous blog) to put its case and arguments.  In this manner it is seen to act both politely and diplomatically.

What a farce all started by the Chief Minister and the Attorney General.  They ask the Supreme Court to rule on a question, the answer to which is generally known.  The answer given by European Case law (see the previous blog) is that discrimination is contrary to international obligations (the European Convention on Human Rights) and the 2006 Constitution, Chapter 1 of which is based on the Convention.   What a farce that additionally the obvious is ignored, even when the UK government say that if the situation is not corrected by Gibraltar's Parliament, it will impose the law directly from London. Why do the Chief Minister and the Attorney General insist on wasting time and energy and misspending tax revenues (our money) on a pointless  exercise?

The previous blog suggests that the GSD administration do not want to alienate the orthodox christian and jewish vote that it attracts by passing a law that  commonplace in most developed democracies, which conversely is seen to be too progressive by many in Gibraltar.  There may be a second (albeit subservient) reason,namely, that certain GSD Ministers cannot bring themselves to vote in favour of a law to end this type of discrimination because they hold similar orthodox religious views.  Consequently an excuse that they have been forced into doing so by an order of  the Supreme Court would be an ideal solution to both conundrums.

In truth, this is a superficial and badly conceived excuse.  The compulsion to vote to end discrimination does not arise from any declaration made by the Supreme Court; that is simply a statement of existing law.  It arises by the clear and unequivocal reality of the law.  If that is not enough to mollify the conscience of those GSD Ministers then no order of any court can do so.

These Ministers need to decide between their Parliamentary duty and obligation and their personal moral principles and religious beliefs.  Their parliamentary duty is to pass laws that do not discriminate.  If that is irreconcilable with their principles and beliefs, is not resignation a path that they need to consider?  The right path is not to misspend our money on a vacuous crusade seeking to be told by the Supreme Court what is so widely known already.

Monday, 29 March 2010

Age of Consent, Gay Rights and Government/Opposition Antics

In the last week or so advertisements have appeared in the press inviting any member of the public interested to join a claim brought in the Supreme Court by the Chief Minister and the Attorney General. The Claim seeks that the Court decide whether various provisions of the criminal law violate the 2006 Constitution. In particular, it makes reference to those that discriminate against homosexuals by forbidding consensual sex between males until the age of 18, whilst 16 is the legal age for heterosexual and lesbian sex.

Whatever the age should be (it is not for the Court to decide whether it should be 16 or 18) there is absolutely no doubt that there should not be any discrimination as a matter of European Human Rights law. There are a whole series of decisions in the European Court of Human Rights going back as far as 1982 that decides that such discrimination violates European Human Rights laws, which are repeated in the 2006 Constitution. Gibraltar is way behind in all this legislation despite a requirement in the 2006 Constitution to take into account European Human Rights case law.

The wider issue that the Claim raises is far more serious. Why do, no less than, the Chief Minister and the Attorney General need to take the matter to court at all? They are both Queens Counsels, well versed in the law and perfectly capable of assessing their legal obligations and responsibilities. There must be another reason for the ploy to bring the matter before the Supreme Court.

This issue of discrimination concerning the age of consent for sex is more than decided, as explained briefly above. Is there another reason? Could it be that the GSD Government do not have the courage to do that which it can have no doubt that it has to do? Is this for fear of an electoral backlash? Are they trying to cover their behinds at the expense of once again blurring the distinct lines that should exist between each of the executive and the legislature and do exist between the judiciary and the other arms of government? Is the line between the executive and legislature on one side and the judiciary on the other (always remembering that the line between the executive and the legislature is already murky) now under attack?

A short analysis of how this saga has developed indicates that the fears of this blogger may prove correct. On the 18th May 2009, the Minister for Justice presented a motion to introduce a Private Members Bill to put right the discriminatory provisions. This begs the question why did he and not the GSD Government (of which he is a member) present a bill to ensure that Gibraltar's laws conform with European law? The Motion was defeated. Members of the Government joining (how bizarre!) the Opposition in defeating it. The motives of the Opposition in voting against must be suspect but that is not the subject of this blog.

It seems that the Government or someone within it decided that the situation could not remain as decided by a majority in Parliament. A decision seems then to have been taken that the question must be put to the Supreme Court. Lo and behold, there was an obstacle to this course! Under the 2006 Constitution, only persons affected can apply to the Supreme Court for declarations of compatibility or other orders. This precluded the GSD Government pursuing a constitutional claim.

That was not a problem for the GSD or, let it be said, any political party in government! The Government is both the executive and the legislature, so the GSD executive promoted and, using an inbuilt majority, passed a law in Parliament giving the Chief Minister the right to make constitutional claims to the Supreme Court. No concerns about how this might impact on the separation of powers or how it might undermine democracy in Gibraltar. Expediency rules and as always won.

So where does that leave Gibraltar? It leaves Gibraltar with the GSD executive asking the permission of the Supreme Court for the legislature (the very same people as make up the GSD executive) to pass laws that the GSD executive know that under the 2006 Constitution and European Human Rights law, they are obliged to pass.

The very Claim brought by the Chief Minister and the Attorney General states and admits that the exercise of executive authority includes that the Government of Gibraltar introduces in Parliament legislation. They did exactly this to arrogate unto the Chief Minister the right to make the Claim to the Supreme Court. They could equally have done so to introduce the necessary legislation to abolish the discrimination arising from the different ages of consent to sex applicable in Gibraltar without recourse to seek permission from the Supreme Court.

Why have they not done it? Could it be that the GSD fear electoral backlash from its core conservative Christian (in the main Roman Catholic) and Jewish supporters? One could not be blamed for thinking this. This blogger does not think the expediency of the GSD (or indeed any reason) is a good reason to sacrifice one of the few constitutional safe guards included in the 2006 Constitution: the independence of the judiciary.

The judiciary applies laws it does not propose, sponsor or make them. It does not decide policy, that is the responsibility of governments. If a government abdicates these responsibilities, it no longer deserves the respect of the electorate. If it seeks to hide behind the judiciary before passing what they perceive to be unpopular laws, that it has a legal obligation to pass, it is cowardice.

Gibraltar needs bravery and honesty in government. Gibraltar needs all the constitutional safeguards it has. The breaching of these safeguards creates additional dangers and undermines democracy. The Chief Justice has a delicate and difficult task before him.

Thursday, 25 March 2010

Sovereignty- the Perrenial Thorny Issue

The time has come to write about the issue of sovereignty. this is an issue that has dogged life in Gibraltar since the inception of British rule. It continues to dominate politics, so much so that it distorts politics to the detriment of all of us who live and work here.

Should we not forget the issue altogether and concentrate on policies that benefit Gibraltar and its people? In truth, none of the political debates on the subject of relations with Spain take Gibraltar anywhere. All it is is inter-party propaganda for one or other party to either achieve better results in elections or counteract any advantage another party might try and gain opportunistically.

It also divides where there is no division. There is no division because no one wants any change. All want to remain British. It is Spain not Gibraltar that has the problem. Why react to it? Why do politicians bring the argument to the fore?

Could it be that it distracts from real issues, real problem, real political failures that constantly surround us? Not so long ago it used to be said that the Franco regime used to raise the Gibraltar issue simply to distract the Spanish people from the actual problems faced by them and Spain. Could this be what our political classes are doing? Distracting us from their failures?

Where are we on the sovereignty issue? The fear this blogger has is that we are not at the place where our politicians tell us we are. They tell us that we defeated the joint sovereignty agreement and that it has gone away. Does this conclusion bear scrutiny? The Rt. Hon. Jack Straw's statement to Parliament that he had reached broad agreement with Spain has not been retracted ever. At the time implementation was delayed due to 4 reasons given. The fundamental reason was the refusal by the UK to share control of the military base with Spain.

A part of that agreement was that, after implementation, Spain was to encourage and promote good relations so that over a period of time, thought to be about 25 years, the entrenched views of Gibraltarians might mellow and lead to a full transfer of sovereignty. What may have happened is that, due to the inability to implement the joint sovereignty agreement, it has been put away temporarily only to be dusted and taken out when all hurdles are overcome either by time or further negotiation.

In the meantime the softening up process that was to follow its implementation may have been activated by Spain in the guise of ... yes you have guessed it ... the Tripartite Process. The GSD promotes it. The GSLP are not sure whether to object to it but criticise everything that comes out of it. Gibraltar merrily ignores the potential for advances made by Spain in the Tripartite Process that work only to undermine Gibraltar's strengths.

It is difficult to deny that Gibraltar has made a simple choice (whether one agrees with it or not). The choice is to remain British. That choice having been made there is no room for the Tripartite Process. It can only chip away at our negotiating position and undermine our ability to negotiate in the future in the unlikely event that we would want to do so with Spain. The world around us is changing. Europe is changing even faster. These changes may lead us to such a different place that Spain's claim will evaporate. Let us live with our neighbour Spain within the understanding that exist already today and with the minor inconveniences that remain. Its not that bad!

This would not require a continuation of the Tripartite Process. It makes it redundant. In any event if there is a change in government in Spain to the PP, they will abandon the process themselves. For once let us do what is obviously right and good for Gibraltar.

Monday, 22 March 2010

A Democracy or an Elected Autocracy?

The Constitution requires elections every 4 years. Dutifully Parliament is dissolved every 4 years and elections are called. Constituents vote and a government and an opposition are elected for another 4 years. This process equals democracy ... WRONG!

Indeed there is a widespread belief that because there is a right to vote and that right is exercised regularly then we must by definition be a western style democracy. Certainly that is what those in the governing party not only would have everyone think but certainly it is what the leader of that party thinks and believes. At least he behaves as if that is how he thinks and believes.

He constantly uses his power to suppress information, for example, the Hon Fabian Picardo recently had cause to complain again. This time on the subject of suppression of information about amounts due for PAYE and Social Security. How can the Government have the gall to suppress this information. PAYE and Social Security is money that does not belong to the Government it is money that belongs to all Gibraltarians. How dare they not tell us? How dare they hide their own inefficiencies by simply hiding facts and the truth?

One safeguard to democracy is the availability of information. In all civilised western democracies there is Freedom of Information legislation: not in Gibraltar. The mantra of those elected to govern is that the power of government has to be maintained at all costs, even by the suppression of information to which the voting public has a right. The fact that suppression of information will assist the Government in power's electoral chances is not a reason to suppress information: in fact it is the antithesis of democracy.

Additionally the absolute control that the executive branch of government has on the legislature is anti-democratic. They can legislate with impunity and then apply the rule of the very law, that they have used their majority to enact, to exert executive power. Zimbabwean practices to the nth degree. This is the selfsame Government majority that is used pervasively and insidiously to suppress argument and debate both in and out of Parliament.

The administration seems no longer to understand also that it is not here to do the bidding of the Chief Minister and other Ministers. They are in post to apply and work within the law: a further mainstay of a western style democracy that we pretend to have but fail to achieve.

There is a need to have a whole raft of legislation to ensure that we really have democratic government. The 2006 constitution failed miserably to provide the necessary platform for this, purposely or not but possibly possibly to suit the ability of the UK to maintain a Military Base ... who knows? The reality is that the only the government of the day can pass this legislation but why would they?

Not having this raft of legislation to deliver true democracy helps any incumbent government cling to power, consequently, there is no incentive for any incumbent government to legislate in this way. How long will this destructive spiral go on for? For ever it seems!

Thursday, 18 March 2010

Governmentium - a Discovery

Sometimes one receives a gem by email that requires no more comment. Here is one:

"Oxford University researchers have discovered the heaviest element yet known to science. The new element, Governmentium (symbol=Gv), has one neutron, 25 assistant neutrons, 88 deputy neutrons and 198 assistant deputy neutrons, giving it an atomic mass of 312.

These 312 particles are held together by forces called morons, which are surrounded by vast quantities of lepton-like particles called pillocks. Since Governmentium has no electrons, it is inert. However, it can be detected, because it impedes every reaction with which it comes into contact.

A tiny amount of Governmentium can cause a reaction that would normally take less than a second, to take from 4 days to 4 years to complete. Governmentium has a normal half-life of 2 to 6 years. It does not decay, but instead undergoes a reorganisation in which a portion of the assistant neutrons and deputy neutrons exchange places.

In fact, Governmentium's mass will actually increase over time, since each reorganisation will cause more morons to become neutrons, forming isodopes. This characteristic of moron promotion leads some scientists to believe that Governmentium is formed whenever morons reach a critical concentration. This hypothetical quantity is referred to as a critical morass. When catalysed with money, Governmentium becomes Administratium (symbol=Ad), an element that radiates just as much energy as Governmentium, since it has half as many pillocks but twice as many morons.

Is this something discovered in Gibraltar? You tell me!

Saturday, 13 March 2010

Opinion Polls- Smoke and Mirrors.

The Gibraltar Chronicle in its passive and inimical style today publishes an opinion poll and without analysis comes to the conclusion that the GSD win.

Leaving to one side that the poll is commissioned by a biased publication: 7 Days, which is a GSD party organ, the reality is that a true and proper reading of that poll (and assuming it was done scientifically, which is doubtful) the GSD do NOT win the poll. The winners with a massive 37.2% are the UNDECIDED who beat the GSD's 32.73% by nearly 5%.

What a sad indictment on the GSD Government. A government elected as recently as just over 2 years ago with the support of 50% of those voting have bored enough people and have been so unimpressive that their own support is so massively down! The odds are that the undecided will more likely vote against them than in their favour, but lets leave that argument to one side as it is speculative.

What a sad indictment on the GSLP/Lib Opposition that (if this poll is accurate) their support has fallen so massively since the last election. It has fallen in the face of a Government losing popularity. Their failure is so much greater than that of the GSD Government. If a Government is losing popularity, the normal result is that an Opposition party gains voters, but no, the gainers in this poll are the "UNDECIDED"!

The reality is that the GSLP/libs have always obtained about 40% of the votes in an election. it is very unlikely that they will have lost this core support, whatever the results of this poll say. The speculative conclusion one can come to is that the increase in the "UNDECIDED" is detrimental to the GSD and favours the GSLP/Libs.

What a sad indictment on the PDP. They cannot make any inroads even when both the GSD Government and the GSLP/Lib Opposition are losing popularity. Give up Keith! At least try smiling when you walk down the street and talk to people. You may not have realised it but you do need their vote. If you are ever to have a chance of gaining some more votes you need to get happy! I know "simpatia" is not the reason Caruana is Chief Minister (that was down to luck and a quirk in Gibraltar's political history when he was first elected) but do not follow his example you can be sure that being "simpatico" will get you some votes.

All in all, what a failure of our political classes. None of them can inspire enough confidence to get voters to decide who to vote for! They should all be ashamed of themselves. They are clearly living in a world of their own completely unconnected with the people of Gibraltar: debating in Parliament and in the press about nothing that interests voters and advertising policies that gain no votes.

The door is wide open for a new leader with new ideas to walk in and win an election. Is our youth so devoid of ideas and enthusiasm that no one will grab this chance? If that is the case the future is not good for Gibraltar politics ... and, you know what, a void (even a political void) is always filled... beware of the UK and Spain taking advantage of this emptiness!

Use Pseudonyms Please

Its encouraging to see how many more people are commenting.

It would be easier and better if people who comment take up pseudonyms as then we can all tell that comments are coming from different persons whilslt anonymity is maintained.

Sunday, 7 March 2010

Post-colonial inferiority

One of the Hon. Peter Caruana's mantras is that the 2006 Constitution ended Gibraltar's colonial relationship with the United Kingdom. This blogger does not believe that to be the case but those who do, like Mr Caruana, might learn to behave in a way more commensurate with not acting in a typically post-colonial self conscious manner.

Gibraltar is privileged to have an enormous pool of talented and able persons. It has a highly educated and well trained pool of professionals. There are limits, however. Frequently (and rightly) expertise is brought in from other countries to fill gaps in the available talent pool. This is not only wise but necessary in a small territory like Gibraltar.

Many in officialdom are increasingly (and for purely political reasons) "Gibraltarianising" (sic) more and more posts and offices and justifying the employment of local resources without fully ensuring the adequacy of those appointed to undertake their functions and responsibility. This is a self conscious neo-post colonial reaction that is redolent of behaviour arising from feelings of inferiority. decisions made on this reasoning also have a habit of resulting in the exact opposite effect of that intended because often they lead to the escalation as opposed to the resolution of issues or problems that they are intended to cure.

A recent example is the engagement of three of Gibraltar's largest law firms to assist the administrator who is intervening in the Marrache & Co law firm (see the blog below "Hat Tricks - a Conflict of Interests"). Some lawyers suggested that a solicitor's firm (and there are many in England) that specialises in these types of intervention should have been engaged. They reasoned that not only would Gibraltar benefit from their expertise (no intervention in a law firm having been undertaken previously by any of the three firms engaged or the administrator appointed) but that the intervention exercise would be done cheaper, better, quicker and avoiding conflicts of interests. This proposal was not subjected to detailed consideration. It was turned down outright without any reasons being given.

Let us hope, for the sake of the reputation of the judiciary, the legal profession and the finance centre as a whole that the decision to engage these three law firms in the task of intervening will not have adverse consequences or result in additional or greater scandal.

It is a sign of maturity, not one of inferiority, to take the right decisions for the right reasons. Those in power might be well advised to dwell on this thought before taking important decisions that could have unwanted adverse consequences on our community.

Mintoff and Malta come to mind.

Wednesday, 3 March 2010

GSLP and Freedom of Information

The Hon. Fabian Picardo MP has complained about the non-publication, by the GSD government, of Mr. Allan King's full report into GBC and of the Audience Survey referred to in it. He is right to complain of this but why does he and his party fall short of seeking publication of all information (subject to some defined restrictions) held by the Government and indeed any public authority?

Internationally, in the democratic world, the right of individuals to have access to information held by public authorities is recognised and legislation allows for substantial freedom of access to such information. Certainly this is the case both in the United Kingdom and the United States of America.

The logical conclusion based on Mr. Picardo's arguments is that he should be advocating the enactment of a Freedom of Information Act in Gibraltar. Why does he not make this his and his party's policy? is it that he and his party will want to be selective in what is published if they are elected into government? Many may surmise that this is the reason.