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.