Submission from Peter Sardeña,
Gibraltar
LETTER OF PROTEST ON POOR STANDARDS OF GOVERNANCE
IN GIBRALTAR
In relation to: Draft Terms of Reference (for
Gibraltar)
— Standards of Governance in Gibraltar.
— The role of Governors and other office-holders
appointed by or on the recommendation of the UK Government.
— The work of the Overseas Territories
Consultative Council.
— Transparency and accountability in
Gibraltar.
— Regulation and financial sector in
Gibraltar.
— Procedures for amendment of the Constitution
of Gibraltar.
— The application of international
treaties, conventions and other agreements to Gibraltar.
— Human rights in Gibraltar.
— Relations between Gibraltar and the
UK Government.
In relation to the above terms of references
I wish to inform the committee without any prejudice that in my
opinion the present Government of Gibraltar cannot be trusted
with the good governance of Gibraltar and that the chief minister
has mislead or in the least misinformed the public in the last
elections in his desire to be re-elected.
The Government also have grave shortcomings
on important and fundamental human rights, which I can list below
and which have come to light in two high profile cases presently
at the Industrial Tribunals.
Both cases defended by Government appointed
solicitors working for the law firm owned by the Chief Ministers
own father in law and the firm where he practiced law before being
elected into Government in 1996.
These cases show clear signs of discrimination,
harassment and injustice.
The Government have failed to provide social
justice in the following field:
1. INDUSTRIAL
TRIBUNALS
I base my views in the Governments interference
and lack of objectivity, impartiality and transparency in two
public cases, which are currently been heard at the Industrial
Tribunals. These cases are proving to be vivid examples of Governments
tactics to hide and suppress the truth from the public and drag
the cases for over 2½ years and in the process squander 10's
of thousands of taxpayers money in one case to prevent the case
being heard and in the process ensure that allegations of abuse
within the social services agency were not made public. In another
case we have seen signs of collusion for unfair dismissal based
on unproven allegations and retaliation for past involvement in
industrial disputes.
"The allied criticisms of the operation
of industrial tribunals and their failure to provide swift, fair
rulings to appellants—including the fact some claimants
have great difficulty in funding their cases. Everyone should
be entitled to equal access to justice".
The allegations and failures can be resumed
as follows:
(a) Monopolisation and interfered with its
independence.
(b) Failed to reform the system, which presently
prejudices the claimant.
(c) Need to set minimum period of time to
process the cases.
(d) Time limits to have the cases listed.
(e) An established period of time to have
the case heard and concluded.
(f) A limited period of time for the Chairman
to come up with a resolution.
(g) Award costs to the complainant representation
if successful.
(h) The right to be reinstated.
(i) Increase the compensation to claimant
if successful.
(j) Social assistance to the claimant, for
the period of filing and conclusion of case. So that worker does
not suffer financial hardships.
(k) Legal Aid in the event of case been taken
to a higher court of justice.
"Current cases which are filled against
Government department agencies or owned companies are being dragged
for over three years without any sign of them coming to a conclusion
and during the time the claimant in such a small community stand
no chance of obtaining employment and runs into financial hardship".
This brings to light some important questions:
(a) For how long can a lawyer acting for
the Government in a tribunal hearing disregard the chairman's
instructions that he should provide the opposing team with documents
and/or information before some form of action is taken?
(b) Does the tribunal chairman have any powers
to compel advance disclosure of information (such as witness statements
or affidavits), which either side intends to submit?
(c) Is it possible that the regulations governing
industrial tribunals are open to two interpretations—one
for lawyers and another for complainants who cannot afford them?
2. HUMAN RIGHTS
AND SOCIAL
LIBERTIES
"There are many examples where this government
discriminates and suppresses the human right and freedom of speech
and fails a number of UK and EU human rights which I list below".
(a) Discriminates against the independent
newspapers by not advertising at all on such privately owned newspapers
and instead spends public funds in another newspaper which is
specially funded with public funds as the flagship and printed
propaganda of Government.
(b) Police is set upon those who protest
"publicly and peacefully" under the pretext of public
disorder.
3. SEXUAL MINORITIES
(a) "Anti-gay discrimination.
(b) Equality and fairness requires that Gibraltar
legislate legal recognition and rights for same-sex couples—perhaps
modelled on the UK's Civil Partnership Act 2003 but also—unlike
the flawed UK law—making civil partnerships available to
heterosexual couples to ensure parity.
(c) Same-sex relationships have no legal
recognition or rights in Gibraltar. Civil partnerships do not
exist and there are no plans to introduce them.
(d) Mr Caruana's Government supports pervasive
anti-equality, pro-discrimination (Rodriguez same sex tenancy
Case).
(e) Eligibility for affordable housing schemes
has been extended to unmarried heterosexual partners but not to
unmarried same-sex partners. How can this differential treatment
be justified?
(f) The unequal age of consent for gay men
is illegal under the European Convention on Human Rights, to which
Gibraltar is required to adhere. Why is the government defying
the European Court and refusing to equalise the consent laws?
(g) Chief Minister Caruana, himself a QC,
seems unaware of the common law principle of equality.
(h) Gibraltar Constitution does not protect
lesbian and gay people against discrimination.
(i) In the absence of legal protection against
discrimination in the provision of goods and services, restaurateurs,
hoteliers and shop owners are entitled to refuse to serve a gay
or lesbian person. When does the government propose prohibit anti-gay
discrimination in the provision of goods and services? It has
already eliminated such discrimination on the grounds of race
and ethnicity. How about also protecting the gay and lesbian citizens
of Gibraltar"?
4. EQUAL OPPORTUNITIES
COMMISSION
(a) "The creation of the EOC is a welcome
first step, but its terms of reference have never been made public.
Why not? The remit of the EOC is narrowly defined to cover only
race equality. It should be extended to cover all discrimination,
including discrimination based on gender, age, sexual orientation,
disability and religion or belief, possibly along the lines of
the UK's new Commission for Equality and Human Rights".
5. DISABLED RIGHTS
AND MENTAL
HEALTH ISSUES
(a) Why is there is no walking stick or Braille
training for the blind or visually impaired?
(b) The government has promised to build
a new Psychiatric Hospital—when does it intend delivering
on this promise?
(c) Disabled people have limited legal protection
against discrimination. To remedy this failing, legislation similar
to Britain's Disability Discrimination Act is a priority. It would
help safeguard the rights and welfare of disabled Gibraltarian.
(d) There is an urgent need for a full independent
public inquiry into allegations of abuse at the Dr Giraldi Home.
In the meantime, the Police Commissioner should open a new investigation
into allegations of criminal misconduct.
6. MEDIA INDEPENDENCE
(a) It is highly desirable to establish an
independent Press Complaints Commission to safeguard freedom of
the press and ensure fair and ethical standards of reporting—with
adequate statutory redress for people who have been unfairly maligned
by the media.
(b) The Gibraltar government announced it
would undertake a review of GBC (Gibraltar Broadcasting Corporation).
Why has the government not announced the terms of reference, scope
and timetable of this review?
7. MOROCCAN COMMUNITY
(a) "The Moroccan community has raised
a number of concerns, including parent's difficulties in obtaining
visas for their children to visit Gibraltar during the summer
holidays; the denial of permanent residence rights to people who
have lived and worked in Gibraltar for 25 years or more, contrary
to Gibraltar's own laws; and the unfairness of the English-proficiency
requirement for residence, given that the government has failed
to provide English language training to enable applicants for
residence to fulfil this requirement".
8. THE DRIFT
TO AUTOCRACY
Before the October 2007 elections "there
were concerns at the way the Chief Minister had taken for himself
the very important Ministries of Finance and Justice. This is
a very unhealthy concentration of power in the hands of one man,
which goes against the British tradition of separation of powers
and of checks and balances.
The suspension of the Chief Justice, Derek Schofield,
combined with the Chief Minister's assumption of the Justice Minister
post prior to the 2007 elections, raises questions concerning
the independence of the judiciary and the proper separation of
powers between the judiciary and the executive".
CONCLUSION
"There is a human rights deficit in Gibraltar.
It is backward and outdated compared to most of Europe. The public
mood seems to be in favour of equality and human rights, but the
government of Peter Caruana is thwarting legislative action and
appears to be drifting towards autocracy. Chief Minister readily
ignores the human rights of his own citizens, both sexual minorities
and others".
"I do not understand why the Chief Minister
is so reluctant to ensure equal and fair treatment for all Gibraltar's
citizens. It would cost him next to nothing and win him much goodwill".
"Gibraltar is fantastic. But it is being
bought down by the foolish prejudice of its government".
ACKNOWLEDGEMENTS
In the above letter I have used extracts from:
A report written by Mr Peter Tatchell, human
rights campaigner—Gibraltar, 2 October 2007.
Industrial tribunal write up: extracts from
the TGWU General Elections Policy Submissions Manifesto.
Vox Newspaper coverage of M/s Joanna Hernandez
case at the Industrial tribunal.
My own notes taken at the same tribunal.
31 January 2008
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