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Opinion & Analysis

Keeping an eye on democracy

Alice Mascarenhas

The Chief Minister, Fabian Picardo, said, in his Easter message, “Today, I am demanding of you, social distancing. Tomorrow, Gibraltar will demand of you, social responsibility”. Too true, but social responsibility must come without any cost to our already limited democracy. Rather those in power should work to improve our democratic offering in a manner that matches the call for, and our ability to be, socially responsible.

Social responsibility is a two-way street, with it should come acceptance and recognition of social maturity. It is a maturity that is much in evidence by the vast numbers keeping to the necessary prevailing intrusions on our civil liberties by “staying home”. This social maturity demands that there should be no long-term reduction in, but instead, in time, an enlargement of, democracy. The expected financial fallout of current restrictions should not become an excuse to extend, in effect or time, the wide-ranging contingency powers taken by the Government to deal with the pandemic.

The Chief Minister, Fabian Picardo has responsibly and understandably warned that we will face the worst economic downturn in living memory, and that it is the end of decades of plenty: there will be “a cavernous crack” in our economy. Too true, but this is little excuse, in the absence of careful democratic scrutiny, to justify extending the time that contingency powers will continue or for increasing their extent.

Independent systemic protections, in the form of greater parliamentary oversight, should but do not exist to encourage the undoing of any powers that a government has taken under the contingency laws when the pandemic is over, and that no additional powers are assumed. This is an objective that independent safeguards, against the erosion of democracy, would help to achieve, but these safeguards are now sadly lacking under our system of government.

Parliamentary scrutiny is near non- existent, except as and when an election comes around. Our system lacks institutionalised separation of powers and facilitates that Governments, in the main a Chief Minister, can dictate with a minimum of democratic oversight by our Parliament.

The issue of raising money through taxation, to fill the gaping financial hole, will now likely come to the forefront of consideration and discussion. Taxation is always something that needs careful enquiry and control. Let us not forget the first AACR mantra “no taxation without representation”, at a time when a Governor tried to tax Gibraltarians who had no elected representatives.

The GSLP Government are to be congratulated and commended on their extensive consultation with many, and their promise to continue and widen this consultation, but this is not an answer to the independent institutional safeguards that are missing in the manner in which we are governed. In the end analysis, decisions and powers lie with them alone, and much with the Chief Minister alone, however many are consulted.

Our constitutional system of government, in the absence of interference from the UK, works in favour of control by one man: a sitting Chief Minister. It is virtually impossible for a Government, today Fabian Picardo’s GSLP, to be defeated in Parliament, thus forcing an election. Further, each and every Minister is beholden to the Chief Minister for his ministry that brings him/her a higher salary than that of a simple MP.

There is no separation of powers between the legislature (Parliament) and executive (the Cabinet/Government) that could end with the defeat of any government. All Governments in Gibraltar can govern virtually without democratic enquiry between elections. This is a huge democratic deficit. Even if there is a change in government at an election, the incoming government has little or no incentive to reverse any powers assumed under laws passed by any previous administration.

Additionally, constitutional oversight of civil rights by the Supreme Court is expensive and can only be invoked by specific applications made to the Supreme Court of Gibraltar. There is no independent body to challenge, at public expense, any decision that might be considered to infringe these basic rights.

To make matters worse, our current electoral system is precisely what has led us to the harmful and unaffordable age of plenty and to the damaging belief in and to the era of entitlement that has reigned in Gibraltar for many decades. It obliges governments in waiting to promise handing out to voters more than those in power, and those in power to give even more in order to remain in power. It results in a downward spiral of decisions, that lead to public overspending and overborrowing, favouritism and many other negatives, a bad reality that has conspired to make worse our potential for suffering in this current crisis.

None of these highlighted deficiencies (and many more) in our democracy and political disincentives lead to or are beneficial to take us to what Fabian Picardo now argues Gibraltar will need, namely, avoiding social inequality or injustice in the economic crisis that he accepts and announces will follow now.

The GSD has rightly mentioned the need to protect democracy, referring to the duty of the Opposition to be vigilant and do its duty. This is a first step, but one that lacks weight in light of Gibraltar’s parliamentary system, which, as explained, lacks the independence to influence or counterbalance the use of executive power. This failing renders any Opposition, and so Parliament, a weak defence against autocracy, which is what contingency powers are.

There is the oversight that can be exercised by the UK under the 2006 Constitution (for example, direct rule and emergency powers laws), in extreme circumstances that, if necessary, could be deployed to force us back to some level of democracy, as may be subjectively assessed to be sufficient by the UK Foreign and Commonwealth Office. Paradoxically, the existence and any use of this colonial power itself undermines and belies the very reality of the democracy that its use might attempt to put right.

But in any event, should Gibraltar’s proud democracy, in the main, rely on external interference by the UK to guarantee its continuity? The answer, must surely be ‘NO’! Established systems should be put in place to reduce any possible abuse to as near nil as might be imaginable, thus avoiding any UK colonial interference. That is part of the self-determination that we seek but that is currently lacking, despite the self-serving boasts of many of our politicians to the contrary.
In the main, constitutional and law reform, that will result in a greater separation between the legislature and the executive, will go a long way to help to achieve this check and balance, which is usual in most western democracies. The ability of an executive Government to be defeated in Parliament needs to be systemically built in. Encompassing such provisions will result in any measures sought to be taken by a Government being more capable of repeal, reform, change or of being beaten. Our current systems fall far short of facilitating this happening, both in practice and reality.
What is being shown by the current cooperation that is evident between the Government and the Opposition is that there are better ways of governing Gibraltar. Better than rule by an all-powerful government, advising and contributing to a Chief Minister governing from one election to the next. At an early stage, after overcoming the Coronavirus pandemic, it will be possible to achieve greater democracy and better government by legislating for and implementing a change in our electoral system, accompanied by changes to ensure a separation of powers between the executive and the legislature.

Briefly, enlarging our Parliament slightly and ensuring the existence of backbenchers accompanied by the introduction of a form of proportional representation can go a long way to reach such an outcome. It will lead to more governments by consensus, made up of coalitions resulting in wider electoral representation and improved oversight of the executive arm of Government by an elected Parliament.

This debate may be seen by many to be premature at a time that we face the frightening situation that we now have, but it raises concerns that are, precisely because of the Coronavirus crisis, now being aired publicly in many other democracies. Yes, what is most important right now is saving lives, something that our Government, with the cooperation of the Opposition, must be praised for doing. That does not mean that we should lose sight of the longer-term issues involving democracy that will likely arise, and deal with them promptly as and when a semblance of normality returns.

These matters cover important and valid concerns about the potential for democracy to be compromised by reason of the current health crisis. We should be conscious of these and be preparing to face and deal with them in due time.

Any public enquiry that Fabian Picardo and his GSLP Government will establish to look into the handling by it of the Coronavirus crisis might well wish to consider such issues of democracy, as well as more direct and fundamental matters about the current crisis and how it is being handled.

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

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