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Constitutional proposals on the independence of the judiciary do not meet international standards
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The Council of the Commonwealth Magistrates and Judges Asssociation remains of the view that the Gibraltar constitutional proposals "do not meet recognised international standards." This is stated in a letter sent to Europe minister Geoff Hoon on Monday, in reply to a previous letter by the minister.
The judicial aspects of the draft Gibraltar constitution had been the subject of a letter to Mr Hoon from the Association.
The Association's council had the opportunity of giving further consideration to the matter at its meeting in Canada earlier this month.
Following the meeting, the Council notes that Mr Hoon did not accept that any of the provisions relating to the judiciary run counter to the general principle of judicial independence. "However, your response does not deal specifically with the points made in the submission and therefore Council remains of the view that the proposals do not meet recognised international standards, including in particular the Commonwealth (Latimer House) Principles, endorsed by the British and all other Commonwealth governments at the CHOGM in Abuja in 2003," the Council now tell Mr Hoon.
CONCERN
They add: Council thus remains concerned about the provision which enables the Governor, with the prior approval of the Secretary of State, to disregard the advice of the Judicial Services Commission in any case where he judges that compliance with that advice would prejudice Her Majesty's Service.
The Council adds that, while it is appreciated that Her Majesty's Government retains constitutional responsibility for Gibraltar, Council maintains the view that this blanket provision negates the whole purpose of the creation of an independent JSC "not subject in the exercise of its functions to the direction or control of any other person or authority."
The Council take the view that, at the very least, there should be a constitutional requirement that, where the JSC's advice is disregarded, the matter should be referred back to the JSC with reasons for that rejection, on the analogy of the relevant provisions of the Constitutional Reform Act 2005.
The security of tenure of judicial officers of limited jurisdiction and of judges appointed for a fixed term, are also matters raised.
SPECIFIC
As such, the Council says it will be grateful "for your response to the specific concerns raised in our original submission and in this letter."
The letter sent to Mr Hoon on Monday adds: The CMJA, representing as it does the interests of judiciaries throughout the Commonwealth, is concerned that constitutional proposals for a territory for which Her Majesty's Government is responsible should provide for the independence of the judiciary in a way which sets a standard to sustain judiciaries in jurisdictions where there is an actual and very real threat to that independence.
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