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, 20 January 2011
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.
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.
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)
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)
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