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New Constitution could be rendered illegal, says party
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New Gibraltar Democracy says it has regrettably come to the conclusion that the draft constitution intended to be submitted to referendum may be seriously deficient, and potentially in breach of basic European notions regarding the independence and impartiality of the judiciary. This follows an exhaustive review by NGD and the independent barrister Stephen Bossino.
A statement adds: It is widely recognised in modern free and democratic societies that the judiciary must be independent of the executive and the legislature. In determining this requirement regard is had to the manner of appointment of judges, their terms of office, the existence of guarantees against outside pressures and whether the judiciary presents an appearance of independence.
It is therefore startling to note that the four out of the seven members of the proposed Judicial Services Commission will be appointed by the Governor (two on the advice of the Chief Minister). Given that decisions of the Commission will be taken by majority vote, it is plain that decisions regarding the appointment of judges and the removal and discipline of magistrates will be made by a body controlled by appointees of the executive government.
To make things even worse, the Governor may with the prior approval of a Secretary of State in London may disregard the JSC?s advice on grounds which are not related to a judge?s ability or personal conduct but on the vague and arbitrary notion that ?compliance with that advice would prejudice Her Majesty?s service.? Thus supposedly, a judge might be appointed (or promoted) not on the basis of experience or ability but because of a proclivity to defer to the interests of the executive.
Similarly, a magistrate could be removed for acting in manner which may be protective of the rights of individuals in relation, say to the issue of arrest or search warrants or requests for extradition to the perceived prejudice of Her Majesty?s police service or prosecuting authorities.
Given further that the scope for executive interference extends to the government in London, it is clear that the suggestion that the constitution is a decolonising constitution is unsustainable both in law and common sense. Indeed, under the current 1969 constitution, the power to appoint judges is reserved to Her Majesty the Queen as sovereign under the Royal Prerogative so, it could be said that the transfer of that authority from Her Majesty to a combination of the Foreign Secretary and the Governor renders the proposed new constitution a more thoroughly colonial constitution than the 1969 ever was.
NGD finds it hard to believe that the Constitutional Reform committee approved the final draft and calls upon its members to publicly state whether or not they did.
Moreover, in view that none of the members of the Committee are constitutional experts, it is imperative that there be a sensible period to allow for public debate based on expert scrutiny and consultation before there is a rush to approve what might turn out to be a half baked and dangerous constitution. Since the enactment of such a retrograde constitution might diminish the legal protections which citizens in Gibraltar are entitled to, failure to follow such procedures and to ensure that the independence of the judiciary is guaranteed could render the constitution illegal.
Absent a commitment from Gibraltar government to allow sufficient time for proper scrutiny to take place, NGD will ask the British government to request an opinion from the Judicial Committee of the Privy Council as to whether the provisions of the constitution meet with accepted requirements for the guarantee of judicial independence.
In light of the above, it would be wholly improper for the proposed referendum on the constitution as drafted to go ahead.
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