Political Conduct

There is now an acknowledgment by all political parties that there is a need to improve conduct in public life. The PDP recognised as much by proposing reforms of Parliament and of the electoral system. The GSLP/Liberals have not only recognized the need for such reforms but now have put codes of conduct on the political map in Gibraltar. The sadness of all this is that it was the GSD that was elected into government in 1996 with a promise to clean up Gibraltar's image and of good governance. 16 years on, the best that it comes up with is minor proposals for reform and an admission that they have failed to carry out this central and core policy that was promised by them to the electorate. Yes, it may be that in terms of the fast launch saga Gibraltar's image has been cleaned up by 16 years of GSD administration. This cannot, however, be a good reason to keep them in Government. This sorry episode was ended, never to to be resumed by any future administration. There is a new issue on this front today that needs to be tackled. 

The image of a jurisdiction is greatly dependent on the image of its government. It is not realities that produce a good or a bad image, although realities play a big part. It is perception that goes to the root of image. Perception of the GSD Government on this front is fast becoming tainted. It is irrelevant whether there is good or bad reason for this. I would think that its record of omission on the subject of parliamentary and electoral reform is such as would give credence to the image of the GSD Government that is evolving. The central question is what good reason could there be for this failure? I shall leave the reader to come to his/her own conclusion. 

In the course of my research on the subject of a "Ministerial Code", a subject which has now been made topical by the recent press release issued by the GSLP/Liberal Alliance, I came across the following: 

"Our new government has a particular and historic responsibility: to rebuild confidence in our political system. .. people have lost faith in politics and politicians. It is our duty to restore their trust. It is not enough simply to make a difference ... the key principles [are] freedom, fairness and responsibility ...we must remember that we are not masters but servants. Though the British people have been disappointed in their politicians, they still expect the highest standards of conduct." 

The sentiments expressed in this quote are of equal application in Gibraltar. They are sentiments expressed in this blog week after week. It is taken from the Rt Hon David Cameron's Prime Ministerial Foreward to the Ministerial Code of the UK. 

 The question in Gibraltar is how does it best seek to achieve a result at the forthcoming General Election that is most likely to deliver this objective? The choice will be to block vote or to show disapproval of the political system by breaking that block vote. Voting for individuals irrespective of party allegiance and delivering to party leaders a low personal poll is a very direct expression of discontent. Party leaders cannot have it both ways. If they choose to exert autocratic power they must also take the blame for failures personally.

If you cannot break away from the block vote, what to do? Well that is a choice for you. I will simply leave you with one thought, the GSD have promised open, transparent and good government. They got into power on the back of this promise in 1996 in a background of wholesale breakdown in law and order. Certainly there have been improvements in Gibraltar but have they delivered on systemic changes that will continue to deliver to Gibraltar open, transparent and good government in the future by ALL administrations? I do not believe they have. I believe that that in complete disregard of and in breach of sacred promises to the electorate, there has been a complete and utter failure by the GSD to deliver any such systemic reforms. This is the primary reason why I shall not be block voting for the GSD at the forthcoming election, contrary to how I have voted in the past 4 elections. I will vote for worthy individuals. I urge you to do the same. The alternative is a vote for the GSLP/Liberal Alliance or for the PDP. The PDP have promised systemic changes. The GSLP/Liberal Alliance is now making very interesting promises on this front. The GSLP/Liberal Alliance has historic baggage. It is time for the electorate to discard this consideration and move on. We owe as much to the survival of democracy in Gibraltar. If a GSLP/Liberal Alliance does not deliver on its promises, in 4 years, we can return a GSD Government who will, by then, have learnt the lesson of having ignored and treated the electorate with disdain on this issue.

The Self Determination Delusion

We are right in the middle of silly season in politics. Many are on holiday and so political activity and interest is at a minimum. It is, however, a good time to reflect on political issues, especially those that become accepted folklore without further scrutiny, analysis and criticism. With scrutiny, analysis and criticism new roads towards ultimate objectives can open up. One illusion that the GSD is responsible for creating is the belief that the 2006 Constitution together with the referendum was an act of self determination. As I have argued frequently, it was not. It was a welcome step on the road to greater self government but no more. My question is, can we use that advance to accelerate our journey to self determination?

Before I answer that question, I shall briefly explain (again and with apologies to those who have read this before) why the 2006 Constitution was not an achievement of what was intended (and some in the GSD advocate) that it would achieve: self determination. First and importantly the Governor and the UK Government retain substantial powers. They are responsible that laws are made for the "... peace, order and good government ..." of Gibraltar. The Governor with the consent of the FCO MInister has powers to make laws on matters that are within its remit. These are external affairs, defence, internal security and certain appointments to public office. The Governor and/or the FCO Minister may refuse to assent to any law passed in Parliament that is

• repugnant to or inconsistent with the Constitution (which read with the fundamental rights chapter and the good governance reservation is a wider power than may, at first sight, seem to be the case); or 
• repugnant to good government; or
• incompatible with international obligations (i.e. EU Laws and treaty obligations).

Lastly but importantly HMG retains full legislative powers, including the power to amend or revoke the Constitution.

It is also a fact that the Treaty of Utrecht, which is now enshrined in the Despatch to the Constitution, circumscribes the ability to achieve independence. It provides that Gibraltar goes to Spain should it cease to be British. Independence is therefore not an option without Spain's acquiescence, which may be an unpalatable thought but a real one. Irrespective of the Treaty of Utrecht, independence without that consent is impossible. Gibraltar's membership of the EU is by reason of its ties with the UK. For Gibraltar to remain in the EU as an independent state would require Spain's approval. If Gibraltar were to leave the EU in order to achieve independence, the imperative for the frontier to remain open with free movement would disappear. Absent an open frontier Gibraltar's ability to remain an economically viable unit is grossly diminished or, in my view, destroyed.

How, in the bleak scenario that I have painted, can I believe that it is possible to advance on the road to self determination? Simple really, we have to navigate a path of good democratic governance within the constitutional bounds, thus making it difficult or impossible for any UK interference in our affairs. It will also help to reduce Spanish influence and argument. As confidence grows in our ability to maturely govern ourselves well, so will the UK's apprehension reduce and more freedom of government will be achieved. In the meantime changes in Spain and Europe will over time open up new avenues that can be pursued by future generations. The progress to fuller self determination will consequently be enhanced and the panorama will widen.

The main brake to out ability to achieve good democratic governance are the very democratic systemic failings that were, intentionally or unintentionally, built into the 2006 Constitution. A Constitution that, in blatant conflict of interest, our politicians conspired to craft to gather power to themselves, in a manner that concentrated it in the office of the Chief MInister. Two effects of this arrogation of power is that it allows external players, in our case Britain and Spain, to assess and so "manage" one person: the Chief Minister. Another is that it undermines the effectiveness of the exercise of that power because it is known to lack democratic credentials beyond a 4 yearly election based on a purposely stilted electoral system.

An overhaul of the parliamentary and electoral system such as will empower Parliament and make it more representative will ensure the strength of the democratic support for arguments marshaled by our politicians. Arguments with wider democratic credibility are far more difficult for external players to defeat. Any attempt to do so will be viewed as an authoritarian act incapable of justification on democratic arguments. This is not the case if the argument is essentially the argument of one individual who could more easily be accused of acting in contravention of the constitutional requirement of good governance, especially if the Rule of Law is not strictly adhered to. In those circumstances interference from external players is more easily justifiable. Also the "management" or "manipulation" of one individual, the Chief Minister in whom power is presently concentrated,  is also more feasible, whether by argument, incentive, persuasion or coercion.

In brief, my argument is that advances in self determination are more achievable by democratic means, evolution as opposed to revolution and patiently waiting for developments within the EU. It is not achievable by forcing the pace of time within a negotiation involving Britain and Spain. It is unlikely that Spain will change its attitude to advance our quest. Our advantage over Spain is ingrained within international law, namely that sovereignty was ceded by Spain to Britain under the Treaty of Utrecht. This treaty is respected and recognised by Spain, albeit reluctantly. Spain seeks a return by negotiated agreement, so faced with Britain's well-known promise to us, it has the difficult, if not impossible, task of changing public opinion in Gibraltar. All in all let us be ourselves, let us put our democratic house in order, let us debate maturely on substance (both in Parliament and out of it), let us leave emotion or hatred out of the equation of politics, and let us convince each other, by rational argument, right and wrong paths to follow. This slow road will achieve progress. It is these arguments that convinced me not to join the SDGG at its first and inaugural meeting, to which I was invited, many years ago. 

Politics or "Gang" Warfare and Personalisation

I referred to politics in Gibraltar having been reduced to "gang" warfare in a reply to comments made under my last blog. I was referring to the existence of such a war between the two dominant "gangs" of politicians.  I also made reference to the general tendency that exists to personalise issues. There is an interrelationship between both observations. It is important, in my mind, to make a sustained effort to elevate politics out of this mire. It is this consideration that drives, in part, my desire and campaign to reform our electoral and parliamentary systems. I fear and predict that, if nothing is done or nothing intervenes to avoid it happening, this next general election will descend to levels of cross-party sniping and insults that will surpass those reached in the recent past.

At one time I described politics in Gibraltar as "tribal". I am now of the view that this description applies more to diehard party adherents than to politicians themselves. Politicians seem to have formed two "gangs". These "gangs" fight each other. However, they maintain their respective dominance of politics by both "gangs" following vague and unwritten rules. These rules are selfish and not aimed at enhancing democracy or the rights of individuals. One "gang" is called the GSD. The other is called the GSLP/Liberal Alliance. I leave the PDP out of the equation because they are also victims of the two dominant "gangs". I do not exonerate its leader Kieth Azopardi, however. He was one of the architects of the 2006 Constitution that laid the foundations for the "gang" mentality that I suggest dominates politics in Gibraltar.

Let me explain my theory briefly, the Westminster Style of government, which Gibraltar has adopted, has three basic (but non-exclusive) principles. One is that Parliament has sovereign law making powers. Another is that the Executive can only govern under the Rule of Law, which is much ignored in Gibraltar. Yet another is that Parliament has the supreme right and duty to oversee, question and criticise the exercise of power by the Executive arm of government. The Chief Minister and all Ministers should be answerable to Parliament, which should be supreme.

Unfortunately, as I argued in my last blog, this ability of Parliament to oversee the Chief Minister and Ministers has been turned on its head. One reason is that where and when Parliament meets is exclusively in the discretion of the Chief Minister. The only rule that binds him is that under the 2006 Constitution he must hold at least 3 meetings in any year. Without set times for more frequent meetings of Parliament, it is the Chief Minister and so the Executive that retains supremacy rather than Parliament. This fact when it is conjoined with a lack of the separation of powers conspires to undermine Parliament's supremacy and its oversight of the executive arm of government.

The reason I refer above to "certain vague and unwritten rules" between the two dominant parties is because the 2006 Constitution was conceived and given birth to by a Select Committee of the House of  Assembly. Both dominating parties or 'gangs" reached agreement on the 2006 Constitution. You will recall that the GSLP/Liberal Alliance endorsed the acceptance of the 2006 Constitution at the referendum. Therefore, intentionally or unintentionally, it does not matter which, both the GSD and the GSLP/Liberal Alliance cooperated to develop a constitutional system that has resulted in the supremacy of Parliament being undermined. Consequently, so has the Rule of Law been undermined. Then effect of these two deficiencies is that once in power the Chief Minister or "gang" leader and his Minister's or "gang" members rule supreme. The other "gang" then has to do its level best to gain that power, whilst the "gang" in power uses all methods to hand to retain that power.

What is odd, in the extreme, is that the public had no participation in crafting the 2006 Constitution, other than it had the right to make representations to the Select Committee.  This was not the case for the 1969 Constitution. Prior to that Constitution, a conference of all representative bodies was involved in the process. The absence of direct public representation in the process that led to the 2006 Constitution has meant that only those who had an interest in the outcome, namely the two dominating parties, were involved in the process. An example of a greater conflict of interests would be difficult to find anywhere. The 2006 Constitution in its democratic aspects was crafted by politicians to suit politicians and not democracy.

One can only assume that there was a reason for the GSLP/Liberal Alliance's endorsement of the 2006 Constitution. That reason may be that, together with the stilted electoral system, there was a certainty in the minds of the GSLP/Liberal Alliance that at some stage they would be elected into Government. Once in Government those very same aspects that disadvantaged them in Opposition would be converted to their own advantage, to be used against the party which had previously formed the Government. The latter would then simply have to wait for their own turn to come around again, whilst simultaneously resorting to "gang" warfare tactics to recover its lost power. It is all a very convenient arrangement with little thought given to constituents. The disadvantages of the system fall entirely on the electorate. The electorate would have been the net beneficiary of enhanced democracy, if a better constitutional and electoral system had emerged in 2006. The benefit and advantage to constituents has been ignored by the two dominant parties, perhaps on purpose and perhaps arising from the conflict of interests that led to the the 2006 Constitution being devised as it was.

This "gang" warfare that I have described is a game played at a high level, in blissful disregard of constituents, between the two dominant parties. It is fought by exchanges of press releases and in infrequent (ate the behest of the Chief Minister) meetings of Parliament. These releases and meetings are, on the whole, only understandable by the politicians or "gang" members of both dominating parties. This general lack of understanding in the main arise from general boredom which results in few persons or no one reading these press releases or following debates and other events in Parliament. This boredom comes about because of the irrelevance of what "gang"members are doing and the introversion and length of those press releases and reports of events in Parliament, both being, on the whole, about inter-"gang" conflicts and issues, which interests no one else. Press release and parliamentary interventions also become exchanges of insults and personalised attacks, in part due to the constant desire to remain in government or take over government. None of this behaviour by our politicians or "gang" members advances or enhances democracy, quite the opposite. It is simply  a war as between two "gangs" the aim of one is to cling to power the objective of the other is to wrest power from the first. 

The electorate for most of the time are ignored and disregarded. People and democracy are forgotten. In the meantime this "gang" warfare continues. The people are only remembered every 4 years just at the time that the election campaign comes around. At this juncture both dominant parties need votes, so both promise the earth whilst ignoring whether these promises are actually good for the commonweal. Responsibility is forgotten and promises of lavish expenditure and electoral gifts are offered in return for votes. Responsibility and real politics fly out of the window. The prize that is sought is power. After the results of the election are announced the "gang" war starts again without regard for constituents. The forgotten people, until the next election, are the voters, despite that democracy is designed for the benefit of precisely the people as a collective and irrespective of what "tribe" or party each may belong to. It may be that in part the present economic crisis in the Western World has been caused by the consequences of overgenerous electoral promises financed by borrowings. Borrowings that now there is difficulty in repaying. This behaviour, in my book, is not what democracy and government are or were ever about, both require responsible conduct and actions from all politicians, whichever party they belong to. Democracy should never be an excuse for bad governance and bad management of public finances.

A Further Democratic Deficiency of Parliament

Substantial criticism has been made in Llanito World about the democratic deficit that exists in Gibraltar by reason, in the main, of the lack of any separation of powers and the disregard for the Rule of Law. The deficiencies do not stop there, as a review of the Standing Rules and Orders of the Gibraltar Parliament reveal ("Rules"). The bias of the Rules favours the majority party in Parliament (the Government) and the Chief Minister. All the deficiencies highlighted in Llanito World are magnified further, to the detriment of constituents and good governance, because Gibraltar's Parliament is unicameral and not bicameral. In a unicameral system, democratic safeguards need to be more robust. In Gibraltar not only are they not robust they are virtually non-existent. 

Essentially the only safeguard that exists is an election every 4 years in which the choice is limited to those who stand for election. Many do not stand for a variety of reasons, many of these reasons are peculiar to a small jurisdiction. This lack of volunteering and participation in the political process in turn reduces the effectiveness of the electoral safeguard available every 4 years. The most voiced opinion that I hear at election after election is to the effect that the choice for the electorate is as between the lesser bad of two bad choices, which can in turn be exploited by any incumbent Chief Minister in Mugabesque (sic) manner. This being the the case, there is something drastically wrong with the system In Gibraltar. The system needs to be changed radically. The radical change must include reforms that will eliminate the fear of repercussions that many have that prevents them participating actively and openly in politics. A brief analysis of some of the Rules further reveal that the democratic deficit is rather deeper than a lack of separation of powers. 

One of the fundamentals of Parliamentary democracy is that the Chief Minister is not chosen by direct plebiscite but is chosen by the party or coalition that has a majority in Parliament. It is also true to say that the acts of any Chief Minister fall to be scrutinised by Parliament. It is Parliament alone that can dismiss a Chief Minister, as in order for an electorate to dismiss him/her the electorate has to turn against the incumbent government and elect an opposition party in its place. The power of a Chief Minister is greatly enhanced by this factor. It is further enhanced by his ability to choose the timing of meetings of Parliament.

Under the Rules, it is the Chief Minister, alone, who decides where and when a meeting of Parliament is convened. Admittedly he is forced by the 2006 Constitution to hold at least 3 meetings in any calendar year. The control that his ability to decide the timing of meetings gives the Chief Minister is excessive. Parliament is charged, amongst other duties, to oversee the performance of a government and a Chief Minister. Timing is often of extreme importance in influencing the immediacy and relevance of any issue or incident and delay of embarrassing debates favour the Chief Minister and his Government. It is detrimental to democracy that the Chief Minister can delay a meeting of Parliament when burning issues should be debated close to the occurrence of any subject requiring debate. 

This ability to pick the time to hold a meeting of Parliament is a curb on democracy. Even if the Government has an inbuilt majority, parliamentary debate is of the utmost importance in forming public opinion. If  the Opposition is prevented from debating issues close to a relevant occurrence its ability to form and influence public opinion is curtailed or eliminated altogether on occasions. In turn this reduces the effect of the only democratic safeguard that exists, namely the decision to oust or not to oust a government at a general election. 

Additionally reducing the number of meetings of Parliament to the limited number required by the 2006 Constitution has the effect of concentrating a large amount of business to a limited number of days in a year. Press reports of proceedings become too compressed and detailed. Editorial decisions have to be made to determine the importance of what stories to run with and which to drop. Stories arising from questions or debate about issues or events that are dated take second place and frequently are buried in the morass of issues that have overtaken that event or occurrence. All these factors have the effect of reducing, in  numbers of persons, the reach of important stories and  reports which come to the ears of the public. The importance and impact and pernicious effect on democracy of the Chief Minister's power to decide on timing should not be underestimated. 

Parliament should have a fixed and regular timetable so that the Chief Minister cannot control when important issues are debated in Parliament. Regularity of meetings is also important to ensure currency of debates. The right of the Chief Minister should be limited to recalling Parliament outside those times if he/she considers that to be appropriate. This will mean that important issues can and could be debated at the current, relevant and immediate time, press reports will be easier to follow and more closely connected in time to the issue in debate. Importantly it will force politicians to be what they are, politicians, not administrators.