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.

31 comments:

  1. I must say having read this article I think it captures the essence of the issue. I must admit that I do tend to find Gibraltar a friendly place when I go back home. However I still think a large part of the population are too conservative and very homophobic. That's the reason why living around the world like I have makes me realize why I feel I cannot return home. At least living abroad I am not judged on my sexual preference. Gibraltarians love there gossip and at times can be very mailcious despite the front of being so called friendly. No change in law will change peoples attitudes. That's the sad thing.

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  2. Thank you Willem and jjj whilst I agree that no change of law will change peoples attitudes, it will certainly help. The change in attitude toweards gays in Gibraltar in the last 35 years has been massive. Give it time and a chance!

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  3. Fred says:

    I have just read Brian Reyes' article in the Chronicle on this issue.

    I am confused: I thought that the Church allowed buggery between heterosexuals as a method of contraception?!

    Perhaps Mr Caruana should call the politicians from Zimbabwe and Uganda to give evidence before Cheif Justice.

    Jesus wept! i can't believe we are even having this debate in 2010.

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  4. I had not read Brian Reyes article in today's Chronic until I saw Fred's comment.

    On just a reading of this articel I fear that an attempt is being made to have a Praliamentary debate in court rather than in Parliament. This will make the Court and not Parliament the arbiter of public opinion, which is not a function to be undertaken by the judiciary.

    I fear the Church does not allow buggery at all!

    The cowardice of the Goverment is now palpable.

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  5. Fred says:

    I agree. Sad. Will it be a kangaroo court? Maybe Mr Caruana has taken a leaf out of Pontious Pilate's book, and left the judiciary holding the baby.

    By the way, thank you for clarifying the Church's position on buggery. Does this mean that paedophile priests are now guilty of a double sin, and would this now amount to a crime? Or do they still have a "get-outof-jail-free" card?

    It would all be funny if it wasn't so serious.

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  6. Plato says:

    LLanito World, congratulation on this excellent post which demonstrates just how much of a bigot our Chief Minister Caruana is. I include everyone who in fact discriminates against homosexuals of 'whatever sex'. These people are human beings and just as good or as bad as heterosexuals.

    People cannot be judged on sexual preference. This is so narrow minded and evil that it reminds of Nazism. Shame on Gibraltar for tolerating this.

    Having said this, the ordinary rank oand file of people in Gibrlatr accept the realities of life and indeed as LLanito World says there has been a massive change for the better. So jjj all I can say is that you should get on with your life. Everyone in Gibrlatar is exposed to gossip often malicious. I could tell some stories about several right wing white collar individuals but I won't. So in the same way that I am not conciously proud of being heterosexual, you do not have to be either proud or ashamed of being gay. Its all right just being the way you are. Tough luck on those who do not approve.

    Personally I have had many gay friends here in Gib since I was a young boy and I have always lived with them a normal life and still do. Just like I do with my heterosexual friends. No difference.

    As to the Government, I sincerely hope that Judge Dudley quickly and promptly puts Caruana in his place. I think he will do so. But we will see.

    Let me say as well how disappointed I am that the Opposition supported the GSD government over the Private Members Bill. Shame on them as well.

    As Fred says 'It would all be funny if it wasn't so serious'.

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  7. I cannot believe that gay men and women are now on the brink of adopting children. The latest Privy Council decision is to be deplored. Firstly we have 5 Judges in England and Wales sitting in the Privy Council dictating to us on what should be our moral code. What do they know about Gibraltar's moral code of decency? Gibraltar has always been a rather conservative community and while accepting individual freedoms those in a minority have always respected the views of the wider community. Now 5 judges 2000 kms away decide that gay couples should been seen in the same light as married couples? Where is the institution of marriage going to end up. Oh Peter the Great please rectify this.

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  8. Dear Llanito World

    Enough is enough. Homosexuality is not natural. It should be an offence to practice / engage in homosexual practices. I hope that someone see sense and declares lowering the age of consent to be a breach of the right not to be inhumanly treated.

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  9. Fred says:

    I wonder what the two anonymous reactionaries have to say about priets buggering small boys. would they care to comment? Who are you to preach on moral codes? Live and let live - why should it bother you so much what people do in the privacy of their own homes? Next thing they'll be saying is that blacks are inferior and Jews should not be tolerated.

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  10. Some of the attitudes of the anon above makes me think these people need to travel more and open their mind a little.

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  11. I do not intend to enter the moral or religious debate save that my understanding is that God is ALL forgiving. He forgives (subject to repentance) even those sad Roman Catholic priests who have sodomised and abused of young children.

    Criminalising an act does NOT stop it happening. It simply punishes those that are caught and marginalises them. Whatever the moral and religious arguments, the stark reality is that same sex intercourse exists. The harm to society of participating in consensual acts in private between individuals who are of an age to give reasoned and informed consent is non-existent. Why, therefore should the Sate punish and marginalise these human beings?

    It is not for the State but for those, who by reason of their religious views, consider the act to be sinful (and I keep my own views on this subject private otherwise I would be entering into the argument that I do not wish to enter into) to instil the moral and religious belief necessary so that there is abstinence and repentance. This is not a matter for the State. It is a matter for religions to preach, teach and convert.

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  12. Charlie says:

    Thank you LlanitoWorld, I could not agree more.

    Five separate, albeit related, issues:

    1. Types of sexual practices betweem adults, i.e. buggery;

    2. Consensual sex between same-sex adults;

    3. Age of consent;

    4. Housing (and other proprietry) rights for same-sex couples;

    5. Adoption by gay-couples.

    As regards 1 & 2 it is none of the State's (or anybody else's) business. It is always the moralists who have a fixation with who does what with whom and with what part of their anatomy.

    As regards 3 it should be at 16 with a strong health campaign. Early sex is potentially dangerous for both sexes. A social responsibility campaign is also required, i.e to stop people having children irresponsibly. The problem is that the Church bans open and frank discussion, or allows it only on its own "moral" terms.

    4. As long as people pay their taxes who cares?

    5. Gay parents are as good as straight parents, but it is society's bigoted attitudes that precludes adoption into secure (gay) homes. Gay parents do not make children gay - people are either born gay, or they are not.

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  13. Do any of you have a 16 year old son? Would you be content for him to be buggered or go about buggering others (with consent). I for one would not. If they want to do that once they reach the age of 18 that's a matter for them but please lets give them a chance to grow up first.

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  14. Anonymous (the last one), surely it is a matter of parental upbringing and control? Are you suggesting that if your 16 year old son today (whilst the age of consent is 18) confessed to you that he was gay and was engaged in buggery, you would report and surrender your son to the police to be prosecuted and possibly jailed? If you would not, then is it not hypocrisy that you are preaching? Is that a central tenet of any religion? Or, because it is your son, it is no longer hypocrisy for the reason that the law only applies to others? Only a parent who has experienced this will know the answer …

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  15. Charlie says:

    To anonymous re. 16-year old son:

    What if it was your 16-year old daughter who was engaging in sexual activity? Would you have a problem with that?

    Again, it's down to education on how to make personal choices, whether it be at 16 or 18 or 80. Unfortuantely we only shape our people with fear and prejudice rather than facts. This means that they are very badly equipped to make informed and safe personal choices.

    I stress the personal aspect in all this, which is at the heart of all human rights. Ones distaste for any given sexual activity should have nothing to do with any of this.

    What's Fred got to say about all this?

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  16. Dear Llanito World

    Through this medium I wish to express my concern at the lack of political courage of both the Government and the Opposition over the issue of the age of consent. There is a school of thought that articulates the lowering of the age of consent to 16 (the same as hetrosexuals). The other camp advocates for the current age limit to continue to be 18. We must as a community respect the rights of individuals while balancing the right of parliament to legislate for the good government of Gibraltar. It should be up to the House of Parliament to legislate and not the Supreme Court, after all I did not get an opportunity to vote for the Judges of the Supreme Court.

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  17. I couldn't agree with you more ... that is why legislation is left to an elected parliament.

    You have encapsulated my point very succinctly. Why do Parliamentarians not see it?

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  18. Plato says:

    Well said anonymous (last one). I ask one last question. Why did't our Parliament legislate accordingly when the result was and is a forlorn conclusion. I refer to many nation's legislatures, the ECHR and the EU Charter on Human Rights. The Supreme Court will follow the above. It therefore wasn't lack of political courage, it was something else. I wonder what?

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  19. Fred says:

    Do we have to conclude that the only Parlamentarian who got it was Mr Daniel Feetham when he presented his Private Members Bill to Parliament?!!!

    I suppose its hats off to Mr Feetham for breaking with his usual opportunism in this case.

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  20. OMG the amount of homophobic attitudes albeit some rational views These kind of prejudices and attitudes by people bring about a culture of bullying in schools, prejudice in the workplace etc. Today is not a proud day to be a Gibraltarian. I am actually ashamed luckily as most open minded llanitos i live in a country which does not discriminate and thats not Gibraltar.

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  21. Reply to Anonymous: 30 March 2010 22:43

    Thank the Chief Minister for one more political mess dressed up in fancy teenage colours. Daniel Feetham is the only real hope left for the future.

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  22. Fred says:

    Re. last anonymous: there 3 homophobic posters that I've counted, the rest of us seem pretty chilled out about homosexuality.

    I think your own bias is coming through, which is as bad as that of the homophobes.

    Today IS a proud day to be a Gibraltarian because we are having this debate. There are a lot of open minded Yanitos in Gib even if they do not feel the need to trimpet it on a daily basis.

    Please lets not equate "open mindedness" with being a libertine.

    However, you are absolutely right in what you say about bullying in schools, which is another reason why many of us argue for gay rights, along with all other human rights.

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  23. Why not discuss the tax discrimination against the Gibraltarians in favour of rich and wealthy foreign individuals who do not even live here and continue to get huge government privileges in low taxes and from readily available private luxury developments in prime locations?

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  24. CARUINA is gayly distracting public attention from BIGGER POLITICAL PROBLEMS

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  25. Plato says:

    LLanito World, I congratulate you on your blog. It has certainly grown in volume and importance to Gibraltar and I hope it continues in this manner. On all topics.

    Fred, I would love to see you on one of GBC's 'tame' debates . Well done.

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  26. Gibraltar should just become Spanish resolve all our problems

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  27. Plato says:

    Anonymous above, the overwheming number of Gibralatarians do not want to be Spanish. Admittedly there is healthy debate about our status, but I believe under the paramount concept of 'british citizenship'. As you will see from all the above posts, Gibraltar observes the principle of democracy to a major extent. You are always free to voice your opinion here in Gibraltar and you will respected at least by me. Try going to Spain and argue with any Spaniard that Gibraltar has a right to its future and you know what response you will get. If your comment was meant as a joking remark on the state of affairs in Gibraltar then I can understand the point you are trying to make. If you seriously meant it, then you live in cuckooland!

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  28. Fred says:

    LlanitoWorld, that last post was silly and provocative, so I'll say:

    Yes, let's become Spanish - adonde quieres poner la plaza de toros Don Miura Anonymous? Seguro que con tu indumentaria taurina we'll have a great show. You can be the first bull.

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  29. Peter Cariana's governments have spent significant amounts of public money defending all-male juries and homophobic housing allocation policies. Although they've "named and shamed" lawyers who've received legal aid payments in the past, they've never (to my knowledge) owned up to how much those two failures have cost the people of Gibraltar.

    Hats off to Danny Feetham on this one, though. At least he seems to understand what justice requires.

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  30. Agreed on misspending of moneys on pointless cases and on Danny Feetham's stance on the issue of the age of consent.

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