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 http://www.gibraltarchronicle.eu/