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.