Gibraltar’s Written Constitution

Ian Watts- providing legal services in Gibraltar since 2002

The Gibraltar Constitution Order 2006

Introduction

The legal system in Gibraltar is predicated on the British justice system. Unlike the British Constitution however (which is unwritten), Gibraltar has enjoyed the benefit of a ‘written’ Constitution since 1969 defining, inter alia, the basic human rights of the individual and outlining the structure of the machinery of the State.

There was a reformulation of the 1969 Constitution in November 2006 when a referendum was held in Gibraltar, and the people of Gibraltar affirmed the text of a more modern constitution, namely – the Gibraltar Constitution Order 2006 – accordingly, upon the coming into force of the 2006 Order, its forerunner – the 1969 Constitution, was thus repealed.

Importantly, the text of the 2006 Constitution encapsulates the doctrine of the separation of powers, viz: – the division of power between the legislature, the executive and the judiciary.

You can find the text of the 2006 Constitution by clicking on the following link: www.gibraltarlaws.gov.gi/constitution/Gibraltar_Constitution_Order_2006.pdf

The Chapters of Gibraltar’s Constitution

The 2006 Constitution is neatly arranged into nine chapters to form a comprehensive and modern constitutional framework. The chapters are divided as follows:

Chapter 1 –     There is constitutionally enshrined a ‘Bill of Rights’ establishing a variety of freedoms which are vouchsafed for individuals. These include, inter alia, the fundamental rights and freedoms of the individual, the protection of the right to life, and the right to deprivation of property.

Chapter 2 –     Establishes, inter alia, the office of His Excellency the Governor for Gibraltar (he is the de facto head of State on behalf of the Monarch, Queen Elizabeth II), and his powers and duties in respect of Gibraltar.

Chapter 3 –     Deals with, inter alia, the legislature of Gibraltar (the Gibraltar Parliament) and its powers of municipal law-making.

Chapter 4 –     Deals with, inter alia, the powers of the local executive Government.

Chapter 5 –     Deals with, inter alia, the establishment and functions of a Judicial Services Commission and the powers of Her Majesty’s Attorney-General for Gibraltar in relation to criminal prosecutions – for example, the power to issue nolle prosequis and the power to take over and discontinue a private prosecution.

Chapter 6 –     Is entitled ‘The Judicature’. Inter alia, it defines the jurisdiction of the Supreme Court and the Court  of Appeal for Gibraltar; the appointment of the local Judiciary; the tenure of Judicial Office; and outlines the constitutionally safeguarded right to make appeals from the Supreme Court to the Court of Appeal for Gibraltar and furthermore, from the Court of Appeal to the Judicial Committee of the Privy Council in London.

Chapter 7 –     Deals with public expenditure and the establishment of a ‘Consolidated Fund’.

Chapter 8 –     Deals with ‘Crown Lands’ (as defined therein).

Chapter 9 –     Deals with, inter alia, other miscellaneous powers such as the power of clemency vested in His Excellency the Governor of Gibraltar to issue ‘pardons’ to those convicted of crimes or to commute sentences fixed by a Court. There is also provision for the office of a Mayor of Gibraltar and importantly an ‘interpretative section’ vis-a-vis the text of the Constitution.

Challenges based on Constitutional Rights

Gibraltar does not have a separate Constitutional Court as is the case in European Continental Countries such as Germany, France, Italy and Spain.

Ordinarily, a legal challenge based on the provisions of the Gibraltar Constitution Order 2006 is brought by way of a Notice of Constitutional Motion before the Supreme Court of Gibraltar.

Further Information

For further information about the Gibraltar Constitution, please contact Ian Watts, Barrister-at-Law & Acting Solicitor.

© Ian Watts, Barrister-at-Law, 2017-2021. All rights reserved.

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