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ERG again presses CM to restore freedom of assembly

 

Equality Rights Group (ERG) has once again written to the Chief Minister [see reference emails of 12 October and 28 September below page] to press him for a response on the question of the right to freedom of assembly, restricted as a result of Covid-19.

‘We believe that, with the appropriate controls, the fundamental constitutional right to assembly and protest need not be banned outright.

‘Following a full consideration of all reasonable circumstances, and several months of practical pandemic experience later and not before, ERG originally wrote to the Chief Minister two weeks ago, raising our concerns regarding what has now become, in our estimation, Government’s disproportionate prohibition on the right to freedom of assembly, and we made this fact known publicly. We highlighted the fact that, given reasonable and enforceable conditioning elements recommended by health experts (such as the use of masks and social distancing) being put in place and enforced at public assemblies, there were reasons for Government to reconsider their posture for a more proportionate approach and a more adequate democratic environment’ Group Chair, Felix Alvarez, has stated today.

‘Proportionality is an important factor in any actions under law, especially as exercised by the Executive, and one that any democracy must balance in its social policies. Sensible and reasonable measures to adapt to circumstances are surely possible, safeguarding both health and democracy.’

‘Unfortunately, to date, Mr. Picardo has not responded to our letter.

‘We fully understand there are competing demands on the Chief Minister’s time; but yet, on the other hand, Government has had ample opportunity to publicly address their updates to the Covid-19 regulations in some detail, whilst remaining absent on this matter. This can only fuel an already active suspicion which is present in our community, regarding the handling of these questions.

‘As Chair of ERG, I have therefore once again written to Mr. Picardo requesting the courtesy of a response to our concerns. We are not averse to understanding the seriousness of the situation. And yet, given the fact that throughout Gibraltar, government accepts the need for citizens to publicly move freely in considerable numbers under administrative health advice in order to attend school, go to work or generally go about their daily business, it is difficult to see as coherent the current total lack of proportionality specifically with regard to the exercise of citizens’ fundamental democratic rights.

‘No right is more basic to the health of any democracy than the right to freedom of public assembly and protest in the face of any Government. And given the reasonableness of appropriate controls and enforcement, ERG requests Government to seriously fine-tune its approach on this question because there either are or are not reasonable grounds for limiting citizens’ rights. And those cannot rely exclusively on removing the context of people’s fundamental rights. It is, indeed, an exercise in proportions.

‘We continue to urge all citizens to respectfully keep good Covid-19 protection measures at all times, and yet, equally, to insist on their fundamental and important right to be able to air and practise reasonable, legitimate, and peaceful public assembly as guaranteed by the Gibraltar Constitution, our most fundamental law,’ the statement ended.

 ________________________________________________

Fabian Picardo, QC
Chief Minister
6 Convent Place
Gibraltar
12 October 2020

Dear Chief Minister,

It is now two weeks since I forwarded the below-copied email to you, raising an issue of fundamental constitutional importance to our community.
I appreciate the many demands on your time and attention, but once more bring the matter before you and your Government for consideration.
With due regards,
Felix
Chair

Equality Rights Group (ERG)

_________________________________

 

28 September 2020

Dear Chief Minister,

COVID-19 AND PEACEFUL PROTEST: PROPORTIONALITY

Equality Rights Group has been receiving representations from a number of individuals and groups in our community regarding alleged restrictions imposed on freedom of assembly since the commencement of the on-going Covid-19 crisis.

It is reasonable for any Executive to take necessary health measures to safeguard the population under its duty of care. In the early stages, when information and knowledge is scarce, it is inevitable for decisions to be made on an urgent need-to basis.

Six months into the pandemic, we are today better situated to gauge safety procedures and measures in a manner which will render proportionality to the manner in which we safeguard our population, both in terms of physical and democratic health.

I am therefore writing to ask that you review and revise the current procedures in place which, in effect, may stifle the public space for citizens to exercise their right to assembly.

The protection of fundamental constitutional and democratic rights such as that of freedom of assembly and expression are never more importantly undertaken than, precisely, at times of social urgency when civil society needs to ensure that their representatives are acting in their best interests and that they are in full possession of information.

To the contrary, hampering and limiting activism in our community does our society no service. Participatory democracy, after all, isn’t just about voting every certain number of years, but involves public interest issues being openly discussed and debated; values, as you will know, protected by the Gibraltar Constitution, and very recently again upheld by judgments from the European Court of Human Rights[1] and the European Court of Justice.

In summary, this letter invites you and your Government to revisit the issues above and

  1. a)     reconsider the extent to which restrictions on the freedom of assembly imposed in response to the Covid-19 pandemic is proportionate;
  2. b)     reassess whether restrictions on the freedom of assembly and protest imposed in response to the Covid-19 pandemic should be lifted or revised;
  3. c)    provide meaningful opportunities for public democratic participation while safeguarding full response for public health requirements (disciplined social distancing and use of masks by all) and in consonance with fundamental rights enshrined within the Gibraltar Constitution.
  4. d)     in consequence, issue instructions to pertinent authorities (Royal Gibraltar Police, The Parliament et al).

Looking forward to your considered response, I remain,

sincerely,

Felix

Chair

Equality Rights Group (ERG)

[1]

Cf. EU Court of Justice, reaffirming the case law of the European Court of Human Rights, in case C-78/18, European Commission v Hungary (18 June 2020), at para. 112: ‘the right of freedom of association constitutes one of the essential bases of a democratic and pluralist society’ etc