Sunday, 30 January 2011

It is Time for Voters to Lose their Patience

One of the topics that has been a recurring theme has been the unrepresentative nature of Gibraltar's electoral system, which is part of the democratic deficit that exists.  In brief, although every voter has 10 votes, due to the indoctrination that there has been over the years this has become one vote for one person: the Chief Minister.  Indoctrination because the parties, over years, have all communicated one message to voters ... if you want, from time to time, Hassan/Isola/Peliza/Bosanno/ Caruana you must vote for all the party: block voting.

History teaches us that the politicians have no incentive to change the electoral system.  Most have promised to do so.  These promises have come to nothing constantly.  False promises as are many that are contained in party political manifestos.  False promises that have not even resulted in any serious or unserious attempts at even exploring or studying alternative and more representative electoral systems.

Why should politicians change the system?  The existing one suits them down to a tee.  The Chief Minister gets elected.  He becomes the all powerful ruler.  His ministers tag along earning massive salaries, most of them for doing very little.   The opposition get paid, do a half hearted job and wait for the electorate to get tired of the government whilst biding its time to form government.  The Chief Minister in waiting, usually known as the Leader of the Opposition, knows that one day sooner or later he has the best chance and will likely become the all powerful leader.  What a great gravy train, why would a politician change it?

They will have to change it only when and if voters flex their muscle,  The change has to be forced on them.  This is not a call to ferment or agitate unrest like their has been in Tunisia and there is now in Egypt.  Thankfully we enjoy much greater freedoms that do not require such violence to achieve change.  Change can be achieved by voters flexing their democratic muscle at an election.

The "block voting" system is not carved in stone.  The voting system is that each voter has 10 votes.  A voter has the right to give each of his votes to each and every single individual candidate having no regard to party membership.  It is not written anywhere that any voter has to look at party acronyms (GSD, GSLP or PDP) and put his cross against the same acronym.  There are good, average, indifferent and outright bad candidates in each party.  There are usually independents  in every election.

There is a mantra in the  mouths of many which goes why do we not have an electoral system that elects the best  brains?  This is difficult to achieve in practice because available electoral systems do not militate towards achieving this objective.  What can be achieved, without any change or reform in the electoral system, is to elect the best candidates from those who are standing for election.  There is absolutely no good reason why each and every voter should not vote for individuals and not for parties.  Splitting your vote is the real democratic option available to voters under the existing electoral system.

Do not believe the mantra of the parties that vote splitting is wrong or bad.  It is not.  It is the only way that the electorate can flex its muscle and tell politicians we are fed up and that it is time for them to change and to actually do what they are elected to do, namely represent each and every one of us.  We, the voters, are in charge.  We are the people who put you there.  No Chief Minister is bigger than us or Gibraltar.  At the next election SPLIT YOUR VOTE. Vote for those individual candidates (not parties or the Chief Minister) that you think are the best of (generally) a bad choice.

Hopefully, in this way, we will not give any party a majority.  Hopefully we will end up with a coalition government.  Such coalition could never be made up of the GSD with GSLP or vice versa but would have to be made up of Independents/PDP candidates and one or other of those main parties.  Hopefully that will lead to more representative government.  Hopefully politicians will get our message.  They will set about reforms to reverse the democratic and electoral deficits that exist not least because the minority candidates would force the issue because it suits them, motivated by future electoral success, to do so.  Let us not have to wait for a more violent form of change. That would destroy Gibraltar and only our enemies will gain.

Wednesday, 26 January 2011

The Financial Services Commission, the Constitution, Political Independence and my Resignation.

Everyone by now knows that on the 18th January I resigned my membership of the Financial Services Commission (FSC).   The primary reason is that I wanted to be free to continue writing and moderating this blog unhindered.  I was not prepared to give up writing and moderating it.  I believe that there are few enough "free" voices in Gibraltar already to have one silenced by circumstances;  especially one that is willing to use this modern medium of the internet to enter the fray of politics and allow others to have a say.

At the beginning of the second week of December 2009 a consultation was started to develop a policy on political participation and public political comment by members of the FSC.  Presently, there are no terms or conditions or any existing policy binding members of the FSC to restrict political involvement by them.  Consequently, the constitutional rights of any member of the Commission to be so involved are not constrained.  There exist no constraints, either under the terms of their appointment or any binding policy, on the constitutional right of any member of the FSC to write and moderate a blog.

Historically this is evidenced by various factors.  Shortly  after my appointment, I was involved in the highly controversial and public "NO" Campaign in the Referendum on the 2006 Constitution (as Chairman of the campaign), without objection from the FSC before, during or after.  I have also frequently written letters and opinion pieces in the Chronic, again with no objection from the FSC before, during or after.  In fact after this involvement in politics I was reappointed (by the Chief Minister) as a member of the FSC for a further 3 years.  Nigel Feetham was and is a member of the GSD Executive with no objection from the FSC before or during.  Shortly after his appointment, he was joint election agent of the GSD, again with no objection from the FSC before, during or after.  The reality is that none of this was undermining the work of the board of the FSC.

All these examples are indicative that the political leanings of any individual member of the FSC was not seen as adverse in any way, inclusive of affecting the FSC's ability to be politically independent.  I agree with this.  I believe that the political independence of the FSC is ensured by diversity of opinion and its overall membership, not by the political activities of any single individual membership.  Finding adequate and appropriate members of the FSC in Gibraltar may become rather more difficult in future.  I believe that the FSC has been functioning well and independently throughout this time.  This attempt to be holier than thou has opened an unnecessary can of worms.  It is disturbing and disrupting something that was working well and should have been left untouched.

I am of the opinion that no terms and conditions or policy restricting involvement in politics can be imposed on members of the FSC (or anyone) unless encompassed in a law or authorised by law.  Such prohibitions, in any event, have to fall within the permissive provisions of the Constitution.  Any restrictions, additionally, have to meet the subjective criteria that they must be reasonably justifiable in a democracy.  If these requirements are not met, any such terms and conditions or policy would breach the constitutional rights of individuals (including part time members of the FSC) to freedom of speech and to freedom of association and assembly.

Why then did I resign?

Despite the protections afforded by the Constitution, it became clear to me that that the overwhelming majority of the members of the FSC favour the introduction of a policy restricting the political involvement of FSC members.  It is within their right to favour such a policy but not to impose it without agreement.  I could not agree to my political freedoms of expression, association and assembly being curtailed retrospectively.  I doubt whether I would have agreed to my initial appointment as a member of the FSC if such terms and conditions or policy had existed at the time.

These events left me with a choice, either to both disharmoniously continue as a member of the FSC and potentially face a very public battle in and out of court to defend my constitutional rights or to resign.  I chose to resign.  I made this difficult choice primarily because I believe that that I may have harmed the finance centre and consequently Gibraltar if, for purely selfish reasons, I had chosen to the alternative course of litigating the constitutional position.

The FSC have said that the policy is not unduly restrictive.  This is a matter of degree and so of opinion.  The guiding principle for such a policy is stated by the FSC to be political independence.  It is a contradiction to say that this principle will be achieved by a policy that is not unduly restrictive.  If that be the case the reigning circumstances should have remained untouched as is my view.

Further, however not unduly restrictive the policy may be in the end, it would still be restrictive to some degree of my freedoms.  It would also introduce subjective considerations the effect of which would be to render the FSC the political editors or arbiters of this blog or indeed the political activities of all its members.  I would suggest that this may be the reason why in the other jurisdictions referred to be the FSC the prohibition is absolute and objectively certain.  For the reasons explained earlier, I do not consider that this was or is necessary in Gibraltar.  the Board of the FSC was functioning perfectly well and was in all practical regards politically independent already.

My letter of resignation (redacted for reasons of confidentiality) can be found on


Sunday, 23 January 2011

Is "Reputation" What Gibraltar should be Selling?

On the 13th January 2011 the Guardian newspaper circulated within its pages The Report, a supplement featuring Gibraltar (  This report publicised that the brand for Gibraltar's Finance Centre is "Rock Solid".  The message communicated by this brand is that "reputation" is what Gibraltar sells and what sells Gibraltar.  This message was reinforced by The Report highlighting the Chief Minister's view that Gibraltar's main economic asset is its "reputation". 

There is no doubt that reputation is a very important factor taken into consideration by anybody  viewing Gibraltar as the jurisdiction of his choice for doing business in, from or with.  I am not sure about the wisdom of making this factor the central plank of a campaign to promote Gibraltar's Finance Centre.  Reputation should be a given.  Gibraltar has it already.  It should not be brought into question or spearhead any promotion.  A finance centre that does not have the necessary reputation will not be even on the starting block or in the consideration of any serious person. Using "reputation" as a unique selling point simply achieves equating the jurisdiction as a whole to its lowest common denominator on the scales applied to judge reputation.   The lowest common denominator is that entity that last gets into trouble.

 It is a given that massive effort is made to maintain reputation, as the Chief Minister put it:
"... people who want to come and do business in and with Gibraltar ... must instinctively appreciate that through our policies and actions, our regulatory regime, they will be coming to a place where their own corporate reputation will not be placed in jeopardy by association.  We have worked to limit access to our own markets to reputable, established companies that value this as much as we do."
But Gibraltar is not a corporation.  It is a jurisdiction with many distinct entities engaged in Finance Centre activities.   In a corporation there is direct and immediate control of all its component parts, employees and agents.  There are direct lines of communications and decisions funnel up to the senior employees, managers and boards.  Even then, things go wrong which have an adverse effect on a corporations reputation.  

In a jurisdiction "... policies and actions ..." and :... our regulatory regime ...", whilst significantly reducing risk, do not eliminate risk to reputation, nor do or can these factors impose the disciplines and controls that circumscribe and control activity within a corporation.  The chances of one individual entity (or a small number of entities) engaged within the field of financial services going wrong and so affecting reputation are much greater within a jurisdiction than within a corporation.  If reputation is made to be perceived as Gibraltar's main economic asset such failure of an individual entity has a greater chance of  impacting on the entire jurisdiction.  Avoiding such a view of Gibraltar  allows it to retain the ability and wherewithal to contain and limit the adverse effect of such individual failures, not that I fool myself that anyone getting into trouble has no adverse effect on Gibraltar.

On the 7th January 2011 in my piece "New Years Message" or "State of the Nation Speech?"  I wrote:
"The reality is that for Gibraltar to succeed economically, it has one valuable natural resource.  I call it leverage, fiscal leverage, jurisprudential leverage and regulatory leverage are examples.  Fiscal leverage is the ability to have a direct and indirect tax system that makes Gibraltar an attractive jurisdiction.  Jurisprudential leverage is ensuring appropriate laws to make Gibraltar an attractive jurisdiction.  Regulatory leverage is not having a less strict regulatory regime in all areas (including gaming) but having a fast, efficient and easily accessible system.  All these are always capable of improvement.  On the whole, the GSD government has got it right."

My list was not intended to be and is not exhaustive.  Gibraltar has more attributes and attractive features.  In the context of the Finance Centre, fiscal and jurisprudential factors are what any government of the day should be emphasising, as well as all the other attributes that Gibraltar has.  It is then for each individual entity to be convincing of and sell its individual abilities and reputations, which is what can be reinforced and supervised by what the Chief Minister has referred to as being policies and regulation.

Thursday, 20 January 2011

Citizens' Rights and the GSD Government

I have written much about the democratic deficit that exists in Gibraltar.  One question in this election year is, who is going to deliver on this front to the electorate in Gibraltar?  Let us see what the GSD Government promised in their manifesto at the time of the 2007 election.

"The sustained commitment by the GSD Government to ensure that Gibraltar becomes and remains a modern democracy ..."

"We will remain committed to to open, transparent, fair and good government.  This is a cornerstone of the quality of life in Gibraltar.  It is vital that progress made not be lost by a return to how things were done in the past"

"We will further develop our existing policy of advisory councils, consultation processes, annual reports and exhibitions to ensure that public information about and participation in Government decision making is maximised."

"We will reform the way our new Parliament conducts its work to ensure that we have a modern Parliament that meets this community's modern need:"

"We will continue to develop a new model of access to justice and legal aid to ensure fairness, affordability and the curtailment of fees-driven disputes"

"We will remain committed to expanding the opportunities that the citizen has to have complaints against the Government and public administration generally investigated effectively and independently"

It is for a Government to deliver on its manifesto promises, not for any opposition party or for any other party contesting the election.  I will leave it there.  You decide whether the GSD Government have delivered on any of these manifesto promises.  I have given my views in earlier pieces.  I think there is a huge democratic deficit.  I think near nothing has been delivered to redress this deficit but was it promised?  I believe so or else I do not understand any of the above quotes.

Thursday, 13 January 2011

Does Gibraltar Really have a Democratic Deficit?

I have made reference to the existence of a democratic deficit in many pieces that I have written over the past 12 months.  Many will ask why?  We have elections every 4 years and we elect a government.  Is that not democracy? Well I hope to convince you that it is not.  It is a massive subject but here goes as briefly as possible.

Like most things in life, was it only to be so simple.  Democracy has many ingredients elections are but one.  If democracy stopped and started at the right to vote, there would, for example, be no guarantee that an election would be held after the first government was elected.  They would simply carry on indefinitely.  This is simply an example that there is a "higher" authority that governs what democracy actually is.  What then are ingredients of democracy? It is not possible to answer this in a short piece but it is possible to briefly give examples and examine their application in Gibraltar.

Equal in importance to achieving representative government are the characteristics of  equality before the law and freedom.  These factors are present in Gibraltar, everyone has the right to vote, everyone has the right to stand and the fundamental rights included in the 2006 Constitution protect everyone.  Is this then the end of the story?  It should be but it is not because to ensure the effectiveness of all these principles there is a need for their appropriate implementation and the availability of recourse.  It is in these areas that there is a deficit in Gibraltar.

Let us start with representation.  Representation is provided in any western democracy by the ability to stand for election and by the voting system.  Standing for election in Gibraltar is unhindered save that the electoral system militates against individuals standing outside the party system. This could be classed as a hindrance.  The 10 votes per person system sounds ideal.  It is not. It results in it becoming one vote for one person.  People militate toward the party that they perceive will deliver to them the Chief Minister that they prefer. Of course in other jurisdictions this is an important determinative factor in voting patterns but it is not the only one.  The bias built into the system applied in Gibraltar makes this factor the overriding one thus skewing away from true democracy.

A second aspect of representation is that it should channel the views of voters through an elected representative.  Gibraltar constituents do not get a representative who they can speak to at all.  We get 10 members of the Government and 8 members of the Opposition, elected by all for Gibraltar as a whole.  If any constituent has a problem he has no one to turn to except the Chief Minister.  Yes, technically he can go to any Minister, if one happens to know a particular Minister that is sometimes helpful.  If the problem is very minor he can resolve it.  If the problem is slightly bigger he can smooth the lines of communiocation to the Chief Minister.  This is inadequate.

The upshot of this electoral system is that, in effect, we have "Presidential" elections that create an all powerful being to whom all have to be beholden.  This in turn reduces democracy and creates a tribal fanaticism amongst groupings in Gibraltar that is divisive and destructive.  A system of elected individual representatives who are beholden to a particular part of the electorate and represent them, not only provides better representation, but is also a unifying factor.  Unifying because whether or not a voter has voted for his representative becomes an irrelevancy during the term of office.  He represents that constituent irrespective of party loyalty.

Democracy is also delivered by balancing factors.  The fundamental balancing principle is the separation of powers.  There are three arms of government, the legislature (Parliament), the executive (the Council of Minister which is the government) and the judiciary (the judges and court system).  The separation between the judiciary and the other two arms of government is defined and institutionlised in the 2006 Constitution.  The same cannot be said of the other two arms of government, the legislature and the executive. 

The executive is made up of 10 Minister who also make up the majority side (or government benches) of the legislature.  The chance of a government being defeated in Parliament on any measure is nigh on nil.  Two Ministers would have to be so guided by principle on any given issue that they would be prepared to risk their high salary (probably unobtainable by most of them outside politics) in order for them to vote against that measure and bring the government tumbling down. Is this likely? 

The result is that a Chief Minister has the power to bulldoze through Parliament any and all counter-democratic legislation (subject to constitutionality) that he wishes with the only downside being the ability of an electorate not to elect him at the next election.  Electoral defeat would only be possible if the electorate has not by them been so terrorised or so bribed that a free election continues within the realms of possibility.  The effect of this is to undermine the concept of the Rule of Law another staunch plank of western democracies.  Relying on the benignity of any incumbent Chief Minister is not an answer.  A void in the separation of power conjoined with a lack of Parliamentary Supremacy, in the sense of inability to defeat the executive, combine to create a huge democratic deficit.

Majority rule is certainly crucial to democracy but not to the exclusion of the protection of minorities.  The persecution or discrimination of minorities by the majority is equally abhorrent in a democracy.  In this field Gibraltar is better but not best served.  It is better served because fundamental human rights are included in the 2006 Constitution with recourse being available to the Supreme Court, part of the independent judiciary. It is not best served because of financial difficulty of access to due process.  The Supreme Court is an expensive court to access.  availability of legal assistance is narrow.  Risk of awards of costs exists although it can be mitigated.  Confronting the government openly in court is a disincentive in itself.  Lack of having individual MPs in Parliament representing constituents bars that route of protection.  There is a need for access to other bodies, be they councils or tribunals that need to be created.

All these concerns are basic.  They have existed for years.  They do not arise only under the 2006 Constitution.  They pre-date that constitution by decades.  The AACR (Association for the Advancement of Civil Rights) owes its existence to that fight.  Some founders of that movement are probably turning in their grave that decades after it was founded a democratic deficit continues to exist.  What is by far worse is that it is not at the hands of the colonial power, which is who our forefathers in the AACR were campaigning against.  It is at the hands of our own elected representatives for years and years. Why dont they do something about it once and for all.  Bits and pieces have been tinkered with but the basic deficits continue.

Friday, 7 January 2011

"New Years Message" or "State of the Nation Speech"?

Well you heard it last night, the Chief Minister's annual "State of the Nation Speech".  "State of the Nation Speech" and not "New Year Message" because it really was not a message for the festive season.  It was an unapologetically party political and electioneering speech.  I do not believe that such an opportunity is given to the Prime Minister of the UK.  It seems unprecedented that a Chief Minister should be given, on such an occasion, an unchallenged right to make such an overtly party political statement on a public service broadcaster, which is what GBC is.

A festive message should be permitted, perhaps, even then I believe that such a message is more appropriate from a non-political source.  In Great Britain and the Commonwealth, Her Majesty the Queen, at a local level, H.E. the Governor, who did it admirably in his Christmas Message.  It was very heartening to hear the plea for people to put forward names for more State and local honours.  The rather low number of awards has been a matter of comment amongst people in Gibraltar for some time.

What was astounding in the CM's speech was his personalised and vitriolic attack on the Leader of the Opposition and the Opposition itself.  Such attacks should have no place in politics at all and even less so in a "New Year Message".  Describing the Opposition as having an "... instinct to lie and deceive ..." on a matter in which a value judgment is called for is really unacceptable behaviour by anyone let alone a Chief Minister, especially in what is styled a "New Year Message".  As the Chief Minister himself has said much of what he is doing is about having a vision for the future so only time will tell.  Perhaps his vision is not as 20/20 as he so stridently asserts.

Undoubtedly much good has been achieved by the GSD Government throughout its terms of office and also in 2010.  It is for each political party to analyse each item of expenditure and decide whether it is or is not as beneficial as the CM says that it is.  The reality is that spending money where there is money is easy.  The politics is about what priorities are set.  Has the GSD got it right?  Is there a need to prioritise matters that have stayed behind, power stations, mental health homes and more expenditure on social services?  Each person can judge for himself.

The reality is that for Gibraltar to succeed economically, it has one valuable natural resource.  I call it leverage, fiscal leverage, jurisprudential leverage and regulatory leverage are examples.  Fiscal leverage is the ability to have a direct and indirect tax system that makes Gibraltar an attractive jurisdiction.  Jurisprudential leverage is ensuring appropriate laws to make Gibraltar an attractive jurisdiction.  Regulatory leverage is not having a less strict regulatory regime in all areas (including gaming) but having a fast, efficient and easily accessible system.  All these are always capable of improvement.  On the whole, the GSD government has got it right.

Get the leverage right and Gibraltar's economy will prosper.  Thereafter it is all about the manner in which the  custodian of public (our) money, our elected government, spends it and what it prioritises.  Without much room to manouvre on how revenue is produced in Gibraltar, political parties should perhaps concentrate on explaining, in their manifestos, how they will spend the money generated.  It is in this area that there can be clear blue water between the policies of each party.  The opposition parties might well want to consider this aspect of politics, if they are to seriously challenge the GSD at the forthcoming elections.  A party with expenditure based on a greater social conscience might prosper at the ballot box.

All in all and thankfully, Gibraltar moves forward but the vitriolic confrontational style of politics that has developed is destructive, even as seen in comments made in this blog as a reaction to the CM's "message".  We need to get over it.  The only way to do so is for there to be electoral reforms that will encourage more people into politics.  The party political system that has now evolved into the policy of personality cult has to be reformed.  A system that encourages individualism will improve even the party system that exists today because it is not a party system built on political ideology.  It is one that encourages gangs of individuals behind a gang leader.  Parties, in an electoral system that encourages individualism, will mainly prosper if they are based more on political ideology rather than ambition.

Saturday, 1 January 2011

Should Anonymity be Necessary in a Democracy?

Anonymity, with or without pseudonyms, has predominated comments in this blog.  I do not consider that anonymity is a good symptom of a democracy.  At the ballot box one understands it perfectly but it is not really understandable when it predominates political commentary in a society that proudly announces that it is a defender of democratic rights.

Anonymity should not be necessary in a jurisdiction that has boasted the inclusion of freedom of expression in its constitution since 1969.  It is not right when we fought for so many years against succumbing to a then fascist Spain in which freedom of expression was not a possibility.  It is not conducive to making the fundamental changes that Gibraltar needs to make in evolving as a truly mature self-governing territory.  It militates against persons volunteering to enter politics and so reduces the candidature from which our Parliament can be chosen at elections.  Unfortunately often there are enormous actual or perceived pressures bearing down on individuals that militate toward their non-participation in public political debate or their participation without identifying themselves.

Gibraltar is a territory in which an enormous percentage  of the working population is employed by Government.  Add to this the large number of persons who are appointed to serve on statutory bodies and authorities or who aspire to do so.  These factors bear down not just on those who are direct employees or appointees but also on their immediate family.  There is a perception that expressing opinions adverse to politicians or, more likely, their policies, whether that party is presently in Government or has the potential to be in Government in the future, might adversely affect their employment or, at least, their prospects of promotion or their appointment or chances of appointment.  All this is a further example of the democratic deficit that exists in Gibraltar.

It can be solved easily.  All there needs to be is a desire by Parliament to legislate in manner that will create the necessary environment to allow the free and proper exercise of all constitutional rights and freedoms.  One first step is to publicise understandable codes for all grades of public employees and appointees to public bodies and authorities.  Such a code needs to be permissive rather than restrictive in the sense that it should only proscribe that which is clearly necessary and essential for each grade or description of person that it is aimed at.  Overly restrictive provisions would simply institutionalise a centralised and regressive "big brother" style of autocracy that exists today by reason of the non-existent of any guiding principles giving rise to the fear that I write about.

The solution does not stop there.  In addition to the codes, there is a need to create an independent tribunal to which complaints of breaches can be referred to efficiently, quickly and cheaply.  The tribunal  needs to be structured so that complainants will get all the necessary help to instigate and process their complaints without the need to resort to lawyers for advice and help.  In short an easy access system of redress modeled on the Ombudsman but with effective power to implement and enforce its decisions.

In the meantime thank you to those who comment in their own name.  I urge those who do not to carefully consider their decision and take the step (sometimes brave, I know, I did it) to identify themselves.  Those who feel they need to remain anonymous, well fine, I will continue to publish their comments, in the hope that in time the safeguards that I suggest might well become law.  Perhaps all or, at least some, of our politicians might adopt a New Year resolution to improve our democracy soon.  It has been promised by many of them, why not deliver it once and for all?

Freedom of Expression in England and under the ECHR: In Search of a Common Ground: A Foundation for the Application of the Human Rights Act 1998 in English Law (School of Human Rights Research) (v. 6)