Opposition publish new constitution

The Leader of the Opposition Joe Bossano has published the amended text of the preamble, the constitution and the despatch during an address to the members of the Casino Calpe.

The additional preamble is the one that was proposed by the Opposition at the meeting in London in March and on which we are still waiting for a response from the British Government.

The text is based on the record kept by Opposition Leader Joe Bossano and Liberal Leader Dr Joseph Garcia of the meetings that have taken place between the Gibraltar and United Kingdom delegations who have been negotiating the constitution.

The text was compiled in one weekend.

The proposals produced by the House of Assembly Select Committee in February 2002 have been used as a base, and any changes made to that text can be seen at a glance. Deletions are in square brackets in italics and additions are in bold print and underlined.

It is possible to see from the text how one of the references to self-determination was deleted from the text in the first Chapter and how the second preamble was deleted altogether at the request of the United Kingdom following pressure from Spain.

The Opposition has circulated the preamble, constitution and desptach to the media and anyone who wants a copy e-mailed to them than either contact the GSLP at hqgslp@gibtelecom.net or the Liberal Party at libparty@gibnet.gi It will also later be available on-line at www.gslp.gi and www.liberal.gi

GIBRALTAR CONSTITUTION ORDER 200?

Made ?

Commencement ?

Whereas Gibraltar is part of Her Majesty?s dominions and Her Majesty?s Government have given assurances to the people of Gibraltar that Gibraltar will remain part of Her Majesty?s dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty?s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes:

[And whereas the people of Gibraltar have accepted the Constitution annexed to this order in an act of self-determination and Gibraltar can therefore be deemed to have attained the fullest possible measure of self- government.]

ALTERNATIVE WORDING SUGGESTED BY THE OPPOSITION IN LONDON:

AND WHEREAS THE PEOPLE OF GIBRALTAR HAVE IN A REFERENDUM APPROVED THE CONSTITUTION ANNEXED TO THIS ORDER, THE SAID NEW CONSTITUTION, IN REPLACING THE GIBRALTAR CONSTITUTION ORDER 1969 PROVIDES FOR THE EMERGENCE INTO THE POLITICAL STATUS FREELY DETERMINED BY THE PEOPLE AND PROVIDES THE ATTAINMENT OF THE MAXIMUM LEVEL POSSIBLE OF SELF-GOVERNMENT IN A MANNER GIVING DUE REGARD TO THE FREELY EXPRESSED WILL OF THE PEOPLE.

Now, therefore, Her Majesty, by virtue and in exercise of all the powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows :?

1 Citation and interpretation.

(1) This Order may be cited as the Gibraltar Constitution Order 200?

(2) In this Order?

?the appointed day? means such day as may be prescribed by the Governor. ( A mechanism needs to be drafted to commence the Constitution and incorporate transitional provisions)

?the Constitution? means the Constitution set out in Annex 1 to this Order;

?the existing Order? means the Gibraltar (Constitution) Order 1969.

(3) The provisions of sections 65 and 71 of the Constitution shall apply for the purposes of interpreting this section, the next following section and Annex 2 to this Order and otherwise ? in relation thereto as they apply for the purpose of interpreting ? and in relation to the Constitution.

2 Establishment of Constitution.

With effect from the appointed day[?

(a) Gibraltar shall be known as the City of Gibraltar;

(b)] the Constitution set out in Annex 1 of this Order shall have effect in Gibraltar, a part of Her Majesty?s dominions, known as the City of Gibraltar.


ANNEX I TO THE ORDER

THE CONSTITUTION OF GIBRALTAR

ARRANGEMENT OF SECTIONS.

Section 2.

CHAPTER I

PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS [OF THE INDIVIDUAL]

NOTE - Sections need to be renumbered

Section

1. Fundamental rights and freedoms of the individual.

2. Protection of right to life.

3. Protection of right to personal liberty.

4. Protection from slavery and forced labour.

5. Protection from inhuman treatment.

6. Protection from deprivation of property.

7. Protection for privacy of home and other property.

8. Provisions to secure protection of law.

9. Protection of freedom of conscience.

l0. Protection of freedom of expression.

11. Protection of freedom of assembly and association.

12. Protection of freedom to establish schools.

13. Protection of freedom of movement.

14. Protection from discrimination on the grounds of race, etc.

15. Right to marry and found a family

16. Enforcement of protective provisions.

17. Provisions for periods of public emergency.

18. Interpretation and savings.

CHAPTER II

THE [LIEUTENANT] GOVERNOR

19. Office of [Lieutenant] Governor.

20. Powers and duties of [Lieutenant] Governor.

21. [Lieutenant] Governor?s taking of oath.

22. Vacancy in the office of [Lieutenant] Governor

23. Deputy to [Lieutenant] Governor.


CHAPTER III

THE LEGISLATURE

Part I

The Gibraltar [House of Assembly] Parliament

Section

24. Legislature of Gibraltar.

25. Gibraltar Parliament

26. Speaker.

27. Qualifications for Elected Members.

28. Disqualifications for Elected Members.

29. Tenure of office of Elected Members.

30. Vacation of seat on sentence, etc.

31. Determination of questions as to membership.

Part II ? Legislation and Procedure in the Gibraltar Parliament

32. Power to make laws.

33. Mode of exercise of legislative power.

34. [Lieutenant] Governor?s special legislative powers.

35. Privileges of Assembly and members.

36. Sessions.

37. Prorogation and dissolution.

38. Rules of procedure.

39. Oath of allegiance.

40. Presiding in [Assembly] Parliament.

41. Quorum etc.

42. Voting.

CHAPTER IV

THE EXECUTIVE

43. Executive authority of Gibraltar.

44. Council of Ministers and Government of Gibraltar.

45. Assignment of business to Ministers.

46. [Lieutenant] Governor?s Special Responsibilities.

47. [Lieutenant] Governor to Consult the Chief Minister.

48. [Consultative Council for EU matters.]

(1) Consultation with Council of Ministers.

(2) Proceedings in Council of Ministers.



51. [Lieutenant] Governor to be kept informed.

52. Oaths of members of Council of Ministers.

CHAPTER V

THE PUBLIC SERVICE, INCLUDING JUDICAL AND SENIOR APPOINTMENTS

(3) Offices for Gibraltar.

(4) Judicial and Senior Appointments.

(5) Attorney General.

(6) Powers of Director of Public Prosecutions in relation to Criminal Proceedings.

(7) Public Services Commission.

i.

CHAPTER VI

THE JUDICATURE

58. Supreme Court.

57. Court of Appeal.

58. Appointment of judges.

59. Additional judges.

60. Tenure of office of judges.

61. Oaths to be taken by judges.

62. Appeals to Her Majesty in Council.

CHAPTER VII

FINANCE

63. Consolidated Fund.

64. Withdrawals from Consolidated Fund or other public funds.

65. Authorization of expenditure.

66. Authorization of expenditure in advance of appropriation.

67. Contingencies Fund.

68. Remuneration of certain officers.

69. Public debt.

70. Audit.

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CHAPTER VIII

72. Tenure of Land.

73. Powers to dispose of Crown land.


CHAPTER IX

MISCELLANEOUS

74. Powers of pardon, etc.

75 Mayor of Gibraltar.

76. Interpretation.

77. References to public office, etc.

78. Acting appointments.

79. Re-appointments and concurrent appointments.

80. Resignations.

81. Saving for jurisdiction of courts.

82. Removal from office.

Power reserved to Her Majesty.


SCHEDULE TO THE CONSTITUTION

OATHS

CHAPTER I.

PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS [OF THE INDIVIDUAL.

1 Fundamental rights and freedoms of the individual.]

Whereas all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law:

And whereas the realization of [the right of self-determination] that right must be promoted and respected in conformity with the provisions of the Charter of the United Nations and any other applicable international treaties.

FUNDAMENTAL RIGHTS AND FREEDOMS

It is hereby recognized and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, or affiliations, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely?

(a) the right of the individual to life, liberty, security of the person the enjoyment of property and the protection of the law;

(b) freedom of conscience, of expression, of assembly and association and of freedom to establish schools; and

(c) the right of the individual to protection for his personal privacy, for the privacy of his home and other property and from deprivation of property without adequate compensation,

and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

2. Protection of right to life.


(1) No person shall be deprived of his life intentionally.

(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use to such extent and in such circumstances as are permitted by law, of such force as is [reasonably justifiable] no more than absolutely necessary?


(a) for the defence of any person from violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) for the purpose of suppressing a riot, insurrection or mutiny; or

(d) [in order to prevent the commission by that person of a criminal offence, ]

[or] if he dies as the result of a lawful act of war.

3. Protection of right to personal liberty.

(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the following cases, that is to say?

(a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Gibraltar or elsewhere, in respect of a criminal offence of which he has been convicted;

(b) in execution of the order of a court punishing him for contempt of that court or of another court or of a tribunal;

(8) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law;

(d) for the purpose of bringing him before a court in execution of the order of a court;

(e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under any law;

(f) in the case of a person who [has not attained the age of eighteen years] is a minor as prescribed by law, for the purpose of his education or welfare;



(g) for the purpose of preventing the spread of an infectious or contagious disease;

(h) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol or a vagrant for the purpose of his care or treatment or the protection of the community;

(i) for the purpose of preventing the unlawful entry of that person into Gibraltar, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Gibraltar or for the purpose of restricting that person while he is being conveyed through Gibraltar in the course of his extradition or removal as a convicted prisoner from one country to another or the taking of proceedings relating thereto.

(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention. Any person who is arrested or detained shall have the right, at any stage and at his own expense, to retain and instruct without delay a legal practitioner of his own choice, and to hold private communications with him, and in the case of a minor he shall also be afforded a reasonable opportunity for communication with his parent or guardian, provided that when the person arrested or detained is unable to retain a legal practitioner of his own choice or be represented by a legal practitioner at the public expense as may be prescribed by any law, he may be represented, and hold private communication with, such person as the court may approve.

(3) Any person who is arrested or detained?

(a) for the purpose of bringing him before a court in execution of the order of a court; or

(b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) of this subsection is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial[. A] and without prejudice to the generality of the foregoing such conditions may bail.



(4) Any person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and release ordered if the detention is not lawful.

(5) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person.

4 Protection from slavery and forced or compulsory labour.

(1) No person shall be held in slavery or servitude.

(2) No person shall be required to perform forced or compulsory labour.

(3) For the purposes of this section, the expression ?forced or compulsory labour? does not include?

[(a) any labour required in consequence of the sentence or order of a court; ]

(b) [labour required of any person while he is lawfully detained that, though not required in consequence of the sentence or order of a court, is reasonably necessary in the interests of hygiene or for the maintenance of the place at which he is detained; ] any work required to be done in the ordinary course of detention imposed according to the provisions of Section 3 of the Constitution or during conditional release from such detention or as an alternative to such detention.

(c) any [labour] work of service required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any [labour]work or service that that person is required by law to perform in place of such service; or

(d) any [labour] work or service required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such [labour] work or service is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation.

Protection from inhuman treatment.

5. (1) No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.

6 Protection from deprivation of property.

(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say?

(a) the taking of possession or acquisition is necessary or expedient in the [interests of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of any property in such a manner as to promote the public benefit including the economic or social benefit of Gibraltar; and] public interest in accordance with Article 1 of the First Protocol to the European Convention on Human Rights.

(b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and

(c) provision is made by a law applicable to that taking of possession or acquisition?

(i) for the prompt payment of adequate compensation; and

(ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation.

(2) No person who is entitled to compensation under this section shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax imposed in respect of its remission) to any country of his choice outside Gibraltar.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the last preceding subsection to the extent that the law in question authorises?

(a) the attachment, by order of a court, of any amount of compensation to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he is a party;

(b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted;

(c) the imposition of?

(i) any deduction, charge or tax; or

(ii) any obligation or restriction relating to exchange control,

that is imposed generally in respect of the remission of moneys from Gibraltar and that is not discriminatory within the meaning of section 14(2) of this Constitution.

(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) of this section?

(a) to the extent that the law in question makes provision for the taking of possession or acquisition of property?

(i) in satisfaction of any tax, rate or due;

(ii) by way of penalty for breach of the law or forfeiture or seizure in consequence of a breach of the law;

(iii) as an incident of a lease, tenancy, mortgage, charge, sale, pledge or contract;

(iv) in the execution of the judgment, or order of a court;

(v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants;

(vi) in consequence of any law with respect to the limitation of actions or acquisitive prescription;

(vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or inquiry or, in the case of land, the carrying out thereon?

(A) of work of soil conservation or the conservation of other natural resources; or

(B) of agricultural development or improvement that the owner or occupier of the land has been required, and has, without reasonable and lawful excuse, refused or failed to carry out;

(viii) by way of the taking of a sample for the purposes of any law; or



(ix) where the property consists of an animal upon its being found trespassing or straying;

(b) to the extent that the law in question makes provision for the taking of possession or acquisition of?

(i) enemy property;

(ii) property of a person who has died or is unable, by reason of legal incapacity, to administer it himself, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein;

(iii) property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or

(iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust.

(5) Nothing in this section shall affect the making or operation of any law so far as it provides for the vesting in the Crown the ownership of underground water or unextracted minerals.

(6) Nothing in this section shall affect the making or operation of any law for the compulsory taking of possession in the public interest of any property, or the compulsory acquisition in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided from public funds.

7 Protection for privacy of home and other property.

(1) Every person has the right to respect for his private and family life, home and his correspondence

(2) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.



(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision?

(a) in the interests of defence, [public revenue,] the economic well-being of Gibraltar, public safety, public order, public morality, public health, town [and country] planning, the development or utilization of mineral resources, or the development or utilization of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights or freedoms of other persons;

(c) to enable an officer or agent of the Government, a local government authority, or a body corporate established by law for public purposes, to enter on the premises of any person in order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, that local government authority or that body corporate, as the case may be; or

(d) to authorize, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order,

(e) for the prevention of disorder or crime

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

8. Provisions to secure protection of law.

8. (1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair and public hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence?

(a) shall be presumed to be innocent until he is proved or has pleaded guilty;

(b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence;

(c) shall be given adequate time and facilities for the preparation of his defence ;

(d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, [where so prescribed,] when the interests of justice so require by a legal representative provided at the public expense;

(e) shall be afforded facilities to examine, in person or by his legal representative, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution; and

(f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence,

and, except with his own consent, the trial shall not take place in his absence unless

(i) he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence, or

(ii) under the provisions of any law entitling him thereto, he is given adequate notice of the charge, the date, time and place of the trial or continuance thereof and afforded a reasonable opportunity of appearing before the court provided that where the foregoing conditions have been complied with, and the court is satisfied that owing to circumstances beyond his control in his absence.

(3) When a person is tried for any criminal offence, the accused person or any person authorized by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be specified by or under any law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at

15

the trial of that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.

(6) No person shall be tried for a criminal offence if he shows that he has been granted a pardon, by competent authority, for that offence.

(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(8) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.

(9) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(10) Nothing in the last foregoing subsection shall prevent the court or other authority from excluding from the proceedings (except the announcement of the decision of the court or other authority) persons other than the parties thereto and their legal representatives to such extent as the court or other authority?

(a) may by law be empowered so to do and may consider necessary or expedient either in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of persons under the age of eighteen years or the protection of the private lives of persons concerned in the proceedings ; or

(b) may by law be empowered or required to do so in the interests of defence, public safety or public order.

(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of?

(a) subsection (2)(a) of this section, to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2)(e) of this section, to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;

(c) subsection (5) of this section, to the extent that the law in question authorizes a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law.

(12) In this section?

?criminal offence? means a crime, misdemeanour or contravention punishable under the law of Gibraltar;

?legal representative? means a person lawfully in or entitled to be in Gibraltar and entitled to practice in Gibraltar as a barrister or, except in relation to proceedings before a court in which a solicitor has no right of audience, as a solicitor.

Protection of freedom of conscience.

9. (1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

(2) Except with his own consent (or, if he is [under the age of eighteen years] a minor as prescribed by law, with the consent of his guardian), no person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion that he does not profess.

(3) No religious community or denomination shall be prevented or hindered from making provision for the giving, by persons lawfully in Gibraltar, of religious instruction to persons of that community or denomination in the course of any education provided by that community or denomination

(4) No person shall be compelled to take any oath that is contrary to his religion or belief or to take any oath in a manner that is contrary to his religion or belief.

(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) or (3) of this section to the extent that the law in question makes provision?



(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practice any religion or belief without the unsolicited intervention of persons professing any other religion or belief,

except so far as that provision, or as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

(6) References in this section to a religion shall be construed as including references to a religious denomination and cognate expressions shall be construed accordingly.

10 Protection of freedom of expression.

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision?

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings and proceedings before statutory tribunals, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony other methods of telecommunication or electronic communication transmission systems, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or

(c) for the imposition of restrictions upon public officers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

11.Protection of freedom of assembly and association.

(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision?

(a) in the interests of defence, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights or freedoms of other persons;

(c) for the imposition of restrictions upon public officers ;

(d) for the registration of trades unions in a register established by or under a law and for imposing reasonable conditions relating to the procedure for entry on such a register (including conditions as to the minimum number and qualifications of persons necessary to constitute a trade union qualified for registration); [or]

[(e) for the imposition of restrictions upon persons who are not resident in Gibraltar with respect to the holding of office in a trade union or membership of the general committee of management of a trade union or with respect to voting in any proceedings of a trade union relating to or connected with the calling or financing of a strike,]

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

12 Protection of freedom to establish schools.

(1) No religious denomination and no religious, social, ethnic or cultural association or group shall be prevented from establishing and maintaining schools at its own expense.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the preceding subsection to the extent that the law in question makes provision?

(a) in the interests of defence, public safety, public order, public morality or public health; or

(b) for regulating such schools in the interests of persons receiving instruction therein,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.



(3) No person shall be prevented from sending his child (including a person of whom he is the guardian) to any such school by reason only that the school is not ?a school? established or maintained by the Government.

13 Protection of freedom of movement.

(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Gibraltar, the right to reside in any part of Gibraltar, the right to enter Gibraltar, the right to leave Gibraltar and immunity from expulsion from Gibraltar.

(2) Any restriction on a person?s freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section.

(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision?

(a) for the imposition of restrictions, by order of a court, on the movements or residence within Gibraltar of any person either in consequence of his having been found guilty of a criminal offence under the law of Gibraltar or for the purpose of ensuring that he appears before a court at a later date for trial in respect of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or other lawful removal from Gibraltar;

(b) for the imposition of restrictions on the movement or residence within Gibraltar of any person who does not belong to Gibraltar or the exclusion or expulsion from Gibraltar of any such person;

(c) for the imposition of restrictions on the acquisition or use by any person of land or other property in Gibraltar;

(d) for the imposition of restrictions on the movement or residence in Gibraltar or on the right to leave Gibraltar of persons generally or any class of persons that are reasonably required?

(i) in the interests of defence, public safety, public order, public morality or public health; or

(ii) for the purpose of protecting the rights and freedoms of other persons,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society;



(e) for the removal of a person from Gibraltar to be tried outside Gibraltar for a criminal offence or to undergo imprisonment outside Gibraltar in execution of the sentence of a court in respect of a criminal offence of which he has been convicted; or

(f) for the imposition of restrictions on the right of any person to leave Gibraltar in order to secure the fulfillment of any obligations imposed upon that person by law, except so far as the provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.

14 Protection from discrimination on the grounds of race, etc.

(1) Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect.

(2) Subject to the provisions of subsections (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority.

(3) In this section, the expression ?discriminatory? means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex, [or] creed, property, birth or other status or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description.

(4) Subsection (1) of this section shall not apply to any law so far as that law makes provision?

(a) for the appropriation of revenues or other funds of Gibraltar;

(b) with respect to persons who do not belong to Gibraltar;

(c) for the application, in the case of persons of any such description as is mentioned in the last preceding subsection (or of persons connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; or

(d) for conferring the status of a Gibraltarian for the purposes of the Gibraltarian Status Ordinance upon any person or for withdrawing that status from any person



QUESTION MARK AS TO WHETHER INCLUDED OR NOT PROPOSED BY UK

(e) whereby persons of any such description as is mentioned in sub-section (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable in a democratic society.



(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) of this section to the extent that?

(a) it requires a person to belong to Gibraltar or to possess any other qualification (not being a qualification specifically relating to race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex or creed, property, birth or other status) in order to be eligible for appointment to any office in the public service or in a disciplined force or in the service of a local government authority or in a body corporate established by law for public purposes; or

(b) it makes reasonable provision for ensuring that persons holding office as aforesaid and giving instruction in schools maintained by the Government of Gibraltar and attended wholly or mainly by pupils of a particular religious community or denomination are acceptable on moral and religious grounds to that religious community or denomination, or to the authorities of that community or denomination.

(6) Subsection (2) of this section shall not apply to anything which is expressly or by necessary implication authorized to be done by any such provision of law as is referred to in subsection (4) or (5) of this section.

(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3 ) of this section may be subjected to any restriction on the rights and freedoms guaranteed by sections 7, 9, 10, 11, 12 and 13 of this Constitution, being such a restriction as is authorised by section 7(2), 9(5), 10(2), 11(2), 12(2) or 13(3) of this Constitution, as the case may be.

(8) Subsection (2) of this section shall not affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law.

15 Right to marry and found a family.

(1) Men and women of marriageable age have the right to marry any to found a family as prescribed by any law governing the exercise of this right.

16 Enforcement of protective provisions.

(1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of the preceding subsection, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled.

(3) The Supreme Court shall have such powers in addition to those conferred by the preceding subsection as may be prescribed for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section.

(4) The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section (including rules with respect to the time within which applications to that court may be made).

17 Provisions for periods of public emergency.

(1) Nothing contained in or done under the authority of any regulation made under the Emergency Powers Order in Council 1939, or any law enacted by the Legislature to that effect, shall be held to be inconsistent with or in contravention of section 3, section 4(2) or any provision of sections 7, 9, 10, 11 or 12, section 13(1) or (3) or section 14 of this Constitution to the extent that the regulation in question makes in relation to any period of public emergency provision, or authorizes the doing during any such period of anything, [that is reasonably justifiable in the circumstances of any situation] to the extent strictly required by the exigencies of the situation arising or existing during that period for the purpose of dealing with that situation.

(2) Where any person who is lawfully detained in pursuance only of such a regulation as is referred to in the preceding subsection so requests at any time during the period of that detention (but if he has already made such a request during that period not earlier than six months after he last made such a request during that period ), his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person, entitled to practice as a barrister in Gibraltar, appointed by the Chief Justice.

(3) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise prescribed, that authority shall not be obliged to act in accordance with any such recommendations.



18 Interpretation and savings.

(1) In this Chapter, unless the context otherwise requires?

?child? includes a stepchild and a child adopted in a manner recognized by law;

?contravention?, in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly;

?court? means any court of law having jurisdiction in Gibraltar, including Her Majesty in Council, but excepting, save in sections 2 and 4 of this Constitution and this section, a court established by a disciplinary law;

?member?, in relation to a disciplined force, includes any person who under the law regulating the discipline of that force, is subject to that discipline.

(2) In this Chapter ?a period of public emergency? means any period during which?

(a) Her Majesty is at war; or

(b) the provisions of Part II of the Emergency Powers Order in Council 1939, or any law encated by the Legislature to that effect, are in operation in Gibraltar.

(3) For the purposes of this Chapter a person shall be deemed to belong to Gibraltar if that person is a Gibraltarian for the purposes of the Gibraltarian Status Ordinance:

(4) In relation to any person who is a member of a disciplined force raised in accordance with such provisions as may be prescribed by the Legislature, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 2, 4 and 5.

(5) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Gibraltar, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter.



(6) Nothing contained in section 10, 11 or 13 of this Constitution shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to their communication or association with other persons or as to their movements or residence.

(7) References in this Chapter to any Ordinance are references to that Ordinance as from time to time amended and include references to any law replacing that Ordinance.

(8) (a) A Court or tribunal determining a question which has arisen in connection with a right or limitation thereof set out in this Chapter must take into account any-

(i) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,

(ii) opinion of the European Commission of Human Rights given in a report adopted under Article 31 of the Convention,

(iii) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or

(iv) decision of the Committee of Ministers taken under Article 46 of the Convention,

whenever made or given, so far as, in t5he opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

(b) Evidence of any judgement, decision, declaration or opinion of which account may have to be taken under this section is to be given in proceedings before any court or tribunal in such manner as may be provided by rules.

(c) In this section ?rules? means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this section by the Attorney General.

(9) Any right or limitation thereof set out in this chapter may be amended if:

(i) a motion proposing that amendment is carried by a majority of at least three-quarters of the total number of members of the Parliament: and

(ii) the Parliament?s vote on such motion is thereafter supported by a simple majority of the votes cast in a referendum of all persons entitled to vote in elections to the Parliament.

(iii) The consent of Her Majesty, signified through a Secretary of State, has been obtained before any such motion or referendum.

(10) Sub-section 9 is without prejudice to the power of Her Majesty to amend or revoke any provision of this Chapter by Order-in-Council.



CHAPTER II.

THE [LIEUTENANT] GOVERNOR



19 Office of [Lieutenant] Governor.

There shall be a [Lieutenant] Governor and Commander-in-Chief for Gibraltar who shall be appointed by Her Majesty and shall hold office during Her Majesty?s pleasure and who shall be Her Majesty?s representative in Gibraltar.

20 Powers and duties of [Lieutenant] Governor.

QUESTION TO CHECK. THESE AMENDMENTS WERE SUGGESTED BY THE UNITED KINGDOM

[ The [Lieutenant] Governor shall have such functions as may be prescribed and such other functions as Her Majesty may be pleased to assign to him and, subject to the provisions of this Constitution and any law by which any such functions are prescribed, shall do or execute all things that belong to his office (including the exercise of any functions that are expressed to be exercisable by him in his discretion) according to such instructions (if any) as Her Majesty may see fit to address to him:

Provided that the question whether or not the Governor has in any matter complied with any such instructions shall not be enquired into in any court of law.]

(1) The Governor shall have such functions as may be prescribed by this Constitution and any other law, and such functions as Her Majesty may be pleased to assign to him in the exercise of the Royal Prerogative.

(2) The Governor shall exercise his functions in accordance with this Constitution and any other law, and, subject to thereto, shall do or execute all things that belong to his office (including the exercise of any functions that are expressed to be exerciseable in his discretion) according to such instructions (if any) as Her Majesty may see fit to address to him.

(3) Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor, the question of whether or not the Governor has complied with any instructions addressed to him by Her Majesty shall not be enquired into in any court of law.

(4) Save as otherwise provided by this Constitution or any other law, the Governor may delegate, by directions in writing, the exercise of any of his functions to any public officer.

21 [Lieutenant] Governor?s taking of oath.

Every person appointed to the office of [Lieutenant] Governor shall, before entering upon that office, take and subscribe oaths of allegiance and for the due execution of the office in the forms set out in the Schedule to this Constitution.

22 Vacancy in the office of [Lieutenant] Governor.

22. (1) During any period when the office of [Lieutenant] Governor is vacant or the Lieutenant Governor is absent from Gibraltar or is for any other reason unable to discharge the functions of his office those functions shall, during Her Majesty?s pleasure, be assumed and discharged by such person as Her Majesty may have designated in that behalf by instructions given through a Secretary of State.

(2) Before assuming the functions of the office of [Lieutenant] Governor, any such person as aforesaid shall make the oaths directed by the last foregoing section to be made by the [Lieutenant] Governor.

(3) Any such person as aforesaid shall not continue to perform the functions of the office of the [Lieutenant] Governor after the [Lieutenant] Governor or some other person having a prior right to perform the functions of that office has notified him that he is about to assume or resume those functions.

(4) The [Lieutenant] Governor or any other person as aforesaid shall not for the purposes of this section be regarded as absent from Gibraltar or as unable to perform the functions of the office of [Lieutenant] Governor at any time when there is a subsisting appointment of a deputy under the next following section.

Deputy to [Lieutenant] Governor.

23. (1) Whenever the [Lieutenant] Governor?

(a) has occasion to be absent from Gibraltar for a period which he has reason to believe will be of short duration; or

(iv) is suffering from an illness which he has reason to believe will be of short duration,

he may by writing under his hand appoint any person in Gibraltar to be his deputy during such absence or illness and in that capacity to perform on his behalf such of the functions of the office of [Lieutenant] Governor as may be so specified.

(2) The power and authority of the [Lieutenant] Governor shall not be abridged, altered or in any way affected by the appointment of a deputy under this section, and a deputy shall conform to and observe all instructions that the [Lieutenant] Governor may from time to time address to him:

Provided that the question whether or not a deputy has conformed to and observed any such instructions shall not be enquired into in any court of law.

(3) A person appointed as a deputy under this section shall hold that appointment for such period as may be specified in the instrument by which he is appointed, and his appointment may be revoked at any time by Her Majesty by instructions given through a Secretary of State or by the [Lieutenant] Governor.

(4) In this section ?the [Lieutenant] Governor? means any person holding the office of [Lieutenant] Governor and includes any person discharging the functions of that office under the last foregoing section.

(5) The powers of the [Lieutenant] Governor under this section shall be exercised by him acting in his discretion.

(6) In subsection (1) of this section the reference to any functions of the office of [Lieutenant] Governor does not include a reference to any functions conferred upon the [Lieutenant] Governor by any Act of the Parliament of the United Kingdom or by any Order of Her Majesty in Council or other instrument made in relation to Gibraltar under any such Act.

CHAPTER III.

THE LEGISLATURE.

Part I

The Gibraltar Parliament

Legislature of Gibraltar.

24. There shall be a Legislature for Gibraltar, which, subject to the provisions of this Chapter, shall consist of Her Majesty and the Parliament.

Gibraltar Parliament.

25. (1) There shall be a Parliament for Gibraltar, which shall be styled the Gibraltar Parliament.

(2) The Parliament. shall consist of?

(a) the Speaker;

(v) at least seventeen Elected Members elected in such manner and in such number as may be prescribed by any Law which may prescribe a number in excess of seventeen elected members if such increase or reduction has been approved by a Motion supported by a two- thirds majority of Elected Members of the Parliament.



(3) The following shall be officers of the Parliament

(vi) the Principal Auditor

(vii) the Ombudsman

(viii) the Clerk to the Parliament

(ix) any other officer prescribed by Act.

26 Speaker.

(1) The Speaker of the Parliament. shall be appointed by the Parliament., by Resolution passed by a simple majority of its [Elected] Members and presented by the Chief Minister acting after consultation with the Leader of the Opposition



(2) The Chief Minister shall in consultation with the Leader of the Opposition and before the meeting of the Parliament at which the Resolution under sub-section (1) is to be debated appoint a member of the Parliament for the sole purpose of presiding over the Resolution

(3) [Subject to section 40 of this constitution] No person shall be qualified for appointment as Speaker if?

(a) he is an Elected Member of the Parliament;

(b) he is not a British citizen or a United Kingdom Overseas [Territories] Citizen by virtue of a connection with Gibraltar who has attained the age of eighteen years; or

(c) he is a person disqualified for election as an Elected Member of the Parliament under section 27 of this Constitution.

(4) A person shall vacate the office of Speaker?

(x) if, a Motion of no confidence in him is passed in the Parliament by a majority of two-thirds of [Elected] Members.

(b) if any circumstances arise that would cause him to be disqualified for election as a[n Elected] Member of the Assembly by virtue of section 28 (1) of this Constitution;

(c) if he is nominated for election as an Elected Member of the Parliament; or

(d) on a dissolution of the Parliament



(5) If the office of the Speaker is vacant or if the person holding the office of Speaker is absent from Gibraltar or is for any other reason at any time unable to perform the functions of his office, those functions may be performed by such person (being a person qualified for appointment as Speaker) as may from time to time be designated in that behalf by the Parliament upon motion presented by the Chief Minister acting after consultation with the Leader of the Opposition.



(6) No business shall be transacted in the Parliament save a motion under sub-section ([26]5) of this constitution as the case may be for which the Parliament may be convened by the Chief Minister notwithstanding the absence of the Speaker.

27 Qualifications for Elected Members.

Subject to the provisions of the next following section of this Constitution, a person shall be qualified to be elected an Elected Member of the Parliament if, and shall not be qualified to be so elected unless, at the date of his nomination as a candidate for election, he is a British citizen or a United Kingdom Overseas [Territories] Citizen by virtue of a connection with Gibraltar who has attained the age of eighteen years.

28 Disqualifications for Elected Members.

(1) No person shall be qualified to be elected as an Elected Member of the Parliament who?

(a) is, by virtue of his own act, under any acknowledgment of allegiance, obedience or adherence to a foreign power or state; or

(b) is a member of the regular armed forces of Her Majesty; or

(c) holds, or is acting in, a public office; or

(d) has been adjudged or otherwise declared bankrupt under any law in force in or outside Gibraltar and has not been discharged; or

(e) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in force in Gibraltar; or

(f) is under a sentence of imprisonment (by whatever name called) exceeding twelve months imposed on him by a court of law or substituted by competent authority for some other sentence imposed on him by such a court, or is under such a sentence of imprisonment the execution of which has been suspended; or

(g) is not qualified to be registered as a voter at elections of Elected Members of the [Assembly] Parliament or, being so qualified, is not so registered; or

(h) is disqualified for election by any law for the time being in force in Gibraltar by reason of his holding, or acting in, any office the functions of which involve?

(i) any responsibility for, or in connection with, the conduct of any election; or

(ii) any responsibility for the compilation or revision of any electoral register; or



(i) is disquali


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