Thursday, 24 March 2011

Accessibility to Fundamental Rights- The Fourth CIR Core Principle Explained

The Coalition for Reform considers that presently the means by which citizens can enforce their fundamental rights is difficult and too restricted. This arises from the need to apply to the Supreme Court of Gibraltar and the complication and cost associated with that procedure. The Coalition for Reform will create a new post of Commissioner of Fundamental Rights. The Judicial Services Commission will appoint him/her.  He/she must be an appropriately experienced lawyer. The Commissioner of Fundamental Rights will be provided with sufficient finance for her/him to establish an adequate secretariat.

The duty and responsibility of the Commissioner of Fundamental Rights will be to receive and investigate all complaints of breaches of Part 1 of the Gibraltar Constitution Order 2006 (2006 Constitution), which contains the fundamental rights.  He/she will publish an opinion of her/his findings.  The Commissioner of Fundamental Rights will also have power to investigate and issue an opinion of his/her own motion on any issue of concern on the subject of fundamental rights.

Within 3 months of the publication by the Commissioner of Fundamental Rights of his/her opinion on the subject of any complaint or of its own motion, the Government shall publish its policy statement on the relevant matter.  The statement will set out deadlines by which any breach of fundamental rights found to exist by the Commissioner of Fundamental Rights would be rectified. The Government must rectify by passing any necessary legislation or taking any corrective action within a period of 6 months from the publication of its policy statement.

In the event that the Government does not publish a policy statement or rectify any breach within the prescribed time limits, the Commission of Fundamental Rights will be obligated to commence proceedings before the Supreme Court, as permitted by section 16 of the 2006 Constitution, at the full cost and expense of the Government and without risk of an award of costs against it. The Supreme Court will be empowered to condemn the relevant Minister or Ministers personally in costs if it finds that non-compliance with the opinion of the Commissioner of Fundamental Rights has been by reason of his/her wilfulness, recklessness, gross negligence or purposeful breach.


  1. Hi Robert,

    I agree totally with the above, the question arises is what happens if a ruling goes against the Minister for Justice? Won't the Gibraltar Judiciary be in a difficult position to make any rulings that would go against the the Ministry that is funding them?
    Also, what if a complaint is lodges against the courts themselves? What happens next? The costs would be astronomical for the Government and if they are paying for the whole shooting match won't it open up the doors for back room deals to take place?

  2. Damian

    If a ruling goes against the Minister for Justice or any Minister so be it. The Minister for Justice and the Judiciary are seperate, distinct and independent arms of government.

    It is commoon for rulings to go against public funding. It happens frequently already in legally aided and assisted cases. There is absolutely nothing wrong with this. It is common in many jurisidictions including the UK.

    There cannot be a complaint against the courts themselves! This would be by way of appeal to a higher court. There can be a complaint against a judge un the 2006 Constitution. This has its own seperate procedure.

    Back room deals? NO There can be compromises of court disputes, which tend to resolve the dispute.

  3. Excellent proposal Robert!

  4. Is this even possible Robert?

    It sounds unreal that a single common person could take on a Government minister, something unheard of in todays Gibraltar.


  5. Robert
    The Coalition for Reform considers that presently the means by which citizens can enforce their fundamental rights is difficult and too restricted

    What are the fundamental rights in UK
    or any European c.ountries?


  6. Anonymous at 22:03

    All are based on the European Convention of Human Rights its about how to ensure compliance that I write.

  7. Damien 11.54

    So it’s not about our fundamental human rights it’s about the possible astronomical cost for the Government if they are paying for the whole shooting match, democracy at its best.


  8. No, if the government gets it right it costs absolutely nothing ... If they have it wrong it demands that they pay to get it right.

  9. There should be an independent Commission set up to allow all people to give and present evidence of their daily problems, concerns and hardhsips...then the real Gibraltar and Gibraltarians will surface from this glorified and expensive mess that will get us nowhere.

  10. We have an Ombudsman but as the opposition stated at the time it was set up, that the office of the Ombudsman is like a toothless tiger. why? because it was set up to fulfil a manifesto committment and not to protect citizens. It was not given the right powers of investigation on all aspects of govt or otherwise but only for administrative deficiency.
    I believe the right way to monitor all that you Robert want monitoring and the people of Gibraltar deserve is a proper Ombudsman who will be able to investigate ALL.
    You have now suggested a number of different commissions to look at different things which I believe can be costly and bureaucratic.
    Since I agree with you in the setting up of commissions to look at corruption, human rights,maladmin, etc then it could be done by one general commission which I am suggesting should be the Ombudsman office.
    By the way it seems that all those people who were so anxious about what is happening with the GSLP/LIBS can now sleep at ease.
    Fabian is going to be the leader Gilbert is backing him and so will Joe Bossano by offering hiself if he is needed.
    This to me is doing things the right and most democratic way. How many elections have the GSD had to 1) to choose leader and 2) to choose candidates. what they have is dedocracia. The emperor points HIS dedo (finger) at what and who HE wants to be candidates. Lets not forget that the last time people like Prescilla Sacramento, Pili Vinales,Montiel, Reyes were interviewed by the almighty and he chose Montiel and Reyes without an election!!!
    The way the GSD runs things internally within their party (if the party exists)and the way Gibraltar has been run by them shows that we need all the checks and balances necessary which is what I have proposed should be done within the Ombudsmans office. Funding and resources can be increased or better still amalgamate the Ombudsmans office with the citizens bureau which I believe is now a waste of money and run by Marushi Risso (Nice woman, but lacks again the tools)and Pili Vinales who will not rock any boat as she might be putting her name down again to be a candidate for the GSD.

    Therefore what can be done is to have a one stop shop for ALL complaints and investigations under one roof and if the case merits being taken to the law courts then the Ombudsmans office which is currently equipped with lawyers can do so. Justice can then be accessable to all since at the moment it is only accessable for the rich.

  11. I also think that the Ombudsman for all their want, are not operating as they should. Hasn't the CM created new "ombudsman-like" agencies to investigate departments such as Housing and others, only to have the powers of investigation for these removed from the Ombudsman?? Why?

    Also, the CAB and other similar bodies are run by hardcore GSD activists with desires to form part of the new line up. That is a clear indicator of how the agencies operate - they will never take on the Govt when they should and will always work at protecting the Govt in favour of protecting the rights of citizens which is the only role purpose they should have.

  12. What about the "rumours" regarding Spanish nationals living in PUBLIC housing? Apparently many of the houses in La Laguna are occupied by non locals.

    Who investigates this?

    A little "birdie" tells me these issues are very real and everyone knows about them yet nothing is done!

    I hope you post this RV as lately you barely post anyhting I write! lololol