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Opinion & Analysis

Anti-corruption law shortfall

Photo by Johnny Bugeja.

By Robert Vasquez

The salient feature of the recently published Anti-Corruption Authority Bill [Bill] is that it fails to do what it is intended to do because an important element of the very persons who are subject to investigation have the indirect power to appoint the investigators. Colossal powers in most areas are given to incumbent Chief Ministers, and through him to all Ministers acting by his appointment. The use of limited companies is a loophole also left open.

Independence is a necessary ingredient of any such Authority, just as it is for judges, public officers, and the Commissioner of Police. Their independence is provided by the required involvement of several constitutional bodies, namely the Judicial Services Commission, the Public Service Commission, the Specified Appointments Commission, and the Gibraltar Police Authority.

The independence of those constitutional bodies from political interference is strengthened by careful provisions that safeguard against direct involvement of politicians. Appointments to those bodies are carefully separated from direct appointments by the Chief Minister or any Ministers.

In sharp contrast the proposed Anti-Corruption Authority [Authority] is not similarly protected. The opposite is obvious. It is the Chief Minister who retains disproportionate powers under the Bill. It is difficult to see what parts of the law, once the Bill is enacted by Parliament, is not finally controlled by an incumbent Chief Minister.
There is no systemic independence from any elected government, which must be wrong. It is inappropriate because any sitting Chief Minister and all Ministers appointed by and serving him/her can be scrutinised by the Authority. If it finds reason, the Authority must then investigate and act, if necessary, without fear of influence or repercussion from the very person who appoints and can remove them.

Governmental, and so political, independence is lacking because the Bill proposes that a vast amount of power should be centred in the Chief Minister. In brief he appoints the entire Authority. Further he can remove any member of the Authority on prescribed grounds.

The safeguards provided by the Constitution on the appointment of judges, public officers, and the Commissioner of Police are simply missing. They are not replaced by any other independent protections.

In addition, the Chief Minister can ask the Authority for reports but is empowered to censor them on public interest grounds before they are made public. The Chief Minister has powers to stop information and documents from being provided on wide grounds, and to amend the list of offences which the Authority may seek to investigate and make wide-ranging regulations.

All in all, there is no political independence.

Importantly government owned companies undertaking public functions do not come within the powers of the Authority. It is a massive inbuilt loophole that will allow any government an avenue to avoid scrutiny and investigation.

The Opposition has a huge task on its hands to put the Bill into shape during its passage through Parliament and before it becomes law. It must take up the cudgels and not fail to act on the important issue that fighting corruption is. It must not fail again as it did in its years in government when it promised to legislate but failed to do so.

Interestingly, the issue of fighting corruption touches by necessity on internal and external security. Those are both in the exclusive constitutional power of the Governor. The question is, will he, or the Foreign, Commonwealth, and Development Office [FCDO] take some interest in the legislative process? The FCDO have involved itself on matters of corruption in other United Kingdom Overseas Territories. Time will tell.

Hopefully the Bill is in its infant stage of development. The Chief Minister has invited the Opposition to provide input. Let us see if the Opposition will take up that offer and knock the Bill into shape before it becomes an impotent law as currently drafted.

Let us see if the GSLP-Liberal Government will pay attention to the GSD Opposition. It is too important a law to let it drift into the wilderness or to be enacted as a ‘nothingness’ which is what the Bill provides right now.

Robert Vasquez, QC, is a barrister. He stood as an independent candidate at the last general election on a platform of democratic reform.

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