In his latest column for the Olive Press, ex-Gibraltar Chronicle news editor Franciso Oliva supplies his personal impression of the sprawling McGrail inquiry.
THERE are vital matters appertaining to Gibraltar’s democratic administration and separation of powers, above and beyond the circumstances leading to the former commissioner’s early retirement, that have properly resided in the purview of chairman Sir Peter Openshaw.
It is him, and only him, who is able to draw conclusions and make recommendations about the sensitive issues at the heart of this inquiry.
Without prejudice to the final outcome and the edicts made by the learned judge, there are interesting elements that require dispassionate, non-partisan analysis and reflection.
During the 19 days of evidence, the public obtained a privileged vantage point into the workings, strains and relations between authorities responsible for upholding good governance and notably the rule of law in Gibraltar, without which democracy has less value than Monopoly money.
There are evidently quite fiercely competing and contrasting narratives and case theories, and I am not envious of the responsibility that Sir Peter has had to discharge.
Was the RGP Operation Delhi investigation properly conducted or ‘a gross abuse of power’ that should never have happened, capable of inflicting negative reputational damage on Gibraltar?
Interestingly, the hugely complex investigation against the three defendants on a charge of alleged hacking and sabotage of a national security system was ultimately discontinued by the Attorney General on grounds of unspecified wider public interest.
Was there an improper interference from the Chief Minister in a live criminal investigation into a company where he had a tangential financial interest, which involved his close friend, mentor and business partner James Levy ?
Or as Picardo declared in his evidence denying any improper conduct, he had at all times acted selflessly, with integrity to protect taxpayers and the wider public interest ?
The fact that Picardo has won four general elections on the trot would suggest it is not an unreasonable assumption that a sizeable proportion of the electorate has no reservations about his judgment or probity, and believe that he is a trustworthy politician.
This, although irrelevant for the purposes of the inquiry can be computed on the plus side of his personal balance sheet and does cement an impression of honest conduct in office (i.e.) no one would sensibly keep voting for a dishonest politician.
Diplomatically, he now seems on the final stretch toward the elusive EU-UK Treaty, to objectively claim his place in history as the man who solved the intractable problem of relations with Spain, reopening the debate about the greatest Gibraltarian politician of all time.
It can therefore be advanced that Picardo has primarily been a force for good, critically for his lucidness and formidable leadership on the foreign affairs front; a view that even those with no regard for what socialism represents: punitive taxation, progressive ideology, a leviathan of a state etc can share.
ACADEMIC THEORY VERSUS LIFE
In truth, one thing is academic political and constitutional theory steeped in deep-rooted doctrine which demarcates the roles of the main political, law enforcement and judicial officeholders in neatly compartmentalised spaces with clear cut, properly ringfenced boundaries.
But this is Gibraltar, and in the context of the practical, incestuous reality of a small town like ours, there is overlap of functions, tensions to the brink of breaking point and leakage of confidential and privileged information in all directions, judicial and non-judicial ambits included.
There are strong personalities and weak ones, pressures withstood, pressures denied and pressures that are succumbed to, as it is difficult to legislate for the human factor; revolving doors, closed doors and open ones that need not even be pushed to gain entry.
Only hypocrites will contend that this is inconceivable and only the deluded will contend that these things do not happen here.
Clearly this is not a new development. It has existed since the days of Sir Joshua Hassan who, as a community leader, as a patriarch, as a politician, as a leading lawyer and as a private citizen wore a number of hats throughout his illustrious seminal period.
The popular moniker el pulpo often used as an expression with derogatory or demeaning intent, made more sense as an allusion to the many tentacles of practical influence and familiarity that he deployed to great effect throughout his career.
He would mix with princes and paupers, was on first name terms with an implausible number of citizens, and was never a remote politician, tirelessly engaging with ordinary members of the public in the normal course of his everyday activities.
ABSOLUTE SEPARATION
Many successful individuals in the powerplay of the political system – Fabian Picardo included – have followed the original blueprint, none of which means that we should automatically entertain conspiracies, suspect or impute any kind of improper conduct, until and unless any alleged wrongdoing is determined in a court of law.
Some will no doubt argue that in future there will be an opportunity to tighten up existing safeguards much more strictly or create additional statutory provisions to enforce absolute separation of powers and preclude any type of informal or subjective political interference in any judicial investigation, even if this is carried out ostensibly for the right reasons, to protect the public interest and not to secure any private advantage.
Indeed it is difficult to argue against the aesthetic value of a Chief Minister running away 100 miles in the opposite direction – as reiterated by Adam Wagner KC on behalf of McGrail – at the slightest whiff of a conflict of interest.
However it is no less problematic to envisage how legislation can actually and effectively alter the innate dynamics of our existence, beyond appearances which will no doubt satisfy many, in order to perfect the rules, creating an early warning mechanism that can identify professional, financial and personal connections susceptible of creating controversy or suspicion of impropriety.
Naturally in the context of verified conflicts of interests, as opposed to those either simply perceived or imagined.
In effect neutralising the realpolitik of our system of government and its underlying, erratic, controlling drivers. But how far can every single anomaly be ironed out of the system?
If we are going to be sanctimonious about this, we should throw our arms in the air in horror as much about Picardo sharing advice, or more accurately put, ‘the absence of advice,’ (he reportedly obtained from outside the circle of confidentiality of the RGP and DPP), with Levy, his lawyer, and more widely, as we should about the other James in the plot James Gaggero, conspicuously absent from the inquiry.
It transpired that the Rock’s captain of industry, had stopped Picardo’s car in the street after receiving a tip-off from police to euphorically announce that the 36 North directors were going to be arrested that same day.
IN A BETTER PLACE
The inquiry is a magnificent representation of the best values we inherited from the British political and legal tradition, from British democracy in effect, today a pale shadow of its former self.
In an age of institutional decay and sociopolitical degradation across the Old World, one draws delight that in a small, dignified corner of a British overseas territory, that waning essence is preserved as excellent legal minds are hard at work to make the Gibraltar that has made this exemplary process possible, take a long hard look at itself, to hopefully emerge in a better place at the end of it.
It is also hugely comforting and reassuring to see the calibre of the judge contributing to our well-being by elucidating the fiendishly complex points under examination, handing us a magical ball of thread to certify the exit path out of the Borgian labyrinth, a great metaphor for the vicissitudes and intricacies of human experience in its search for purpose and meaning.
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