GGR questions proposed new Govt law
"In the first place, the Courts have long had sufficient jurisdiction under Gibraltar law to rule on the constitutionality or otherwise of any legal provision. Government knows this to be the case, and it is for this reason that it announced not so long ago that it had asked the Attorney General to apply for a declaration from the Courts regarding the age of consent provisions which currently stand. It is with some dismay, however, that barely a few days after the Attorney General filed his application, Government published a proposal for a new law which confers powers to the Chief Minister or his designate alone to be able to refer a question of constitutionality to the Courts.
"This coincidence in timing raises suspicions that Mr Caruana may have realised that the Gibraltar Constitution would not allow him the powers of referral to the Courts that he appears to be seeking, and is now aiming to bridge the gap via the mechanism of a new law. GGR is currently examining the legal implications of the Bill. Constitutional amendment is normally undertaken via a rigorous process with high parliamentary benchmarks, and the possibility that such established procedures could be circumvented at the flick of a Government pen raises serious issues for our democracy.
"Even if the new proposed law does not infringe constitutional precepts, as Chairman of a Gibraltar human rights and democracy organisation, I have the obligation to question why it is that only the Chief Minister or his designate are to be given the right to obtain compatibility rulings from the Courts under the new Bill. Government has a vast machinery and huge financial resources and teams of lawyers at its free disposal. Civil Society does not. It is Civil Society which is at a vast democratic disadvantage in being unable to fund and obtain constitutional rulings. It is Civil Society, therefore, which has most needfor safety nets such as the one the Chief Minister is intending for Executive use only.
"While compatibility issues are indeed addressed by Ministers in other countries - the UK, for example, through the Human Rights Act - it is the politician who makes declarations in Parliament as to such matters. In effect, the Chief Minister would be passing the buck to the Judiciary. This is a dangerous precedent on two counts: firstly, because the Executive arm of Government could be appropriating powers for itself which it could easily abuse for its own political ends in what should be an even democratic playing field. And, secondly, because the Judiciary should not be placed in a situation of having to make assessments verging on the political. The principle of Separation of Powers in a democracy is fundamental, and the proposed Bill could dangerously fudge the necessary margins.
"This move by Government deserves open and ample debate about not only the proposed Bill, but also concerning the manner in which our society is moving with respect to the skewing of the balance of power between citizens and the Executive. We urge Mr Caruana to reconsider his proposed Bill and, as a very minimum, ensure that the powers currently to be awarded to the Executive alone be balanced out by providing similar rights for Civil Society in a set of clear, detailed and fair provisions which would allow the imbalance between the power and resources of Government and that of Civil Society to be satisfactorily addressed," Mr Alvarez ended.