Constitutional clash in Supreme court over Murga Bar

Lawyers in court over the Murga bar dispute have clashed over whether there is a constitutional basis for the bar owner’s claim against the Government, the Governor and the Attorney General.

Allan Asquez, represented by Charles Gomez & Co has spent the last couple of days in court arguing that the certificate used to evict him from his premises at the Victoria Stadium to make way for a new UEFA approved stadium, clashes with his constitutional rights.

The Government parties' lead lawyer Lord Pannick KC set out that the legislation used to issue the certificate is consistent with Mr Asquez’s rights.

Earlier this year Allan Asquez, owner of the Murga Bar and three kiosks at the Victoria Stadium was issued a certificate terminating his tenancy.

The Governor used his authority under Section 66 of the Landlord and Tenant Act to issue Allan Asquezwith the certificate. The section empowers the Governor to end tenancies when the property being redeveloped is deemed to be of public economic interest.

Mr Asquez’s lawyer Charles Gomez argues that section 66 of the act overrides protections on property rights provided for in the constitution such as fair procedures, adequate compensation and judicial oversight. He claims his client should constitutionally be entitled to compensation for an extended term of residency as well as an offer of an alternative place in the newly redeveloped property.

In addition, Mr Gomez says such a certificate can only be issued if the Government owns the land. However, he argues that the land is actually possessed by private entity – GFA National Stadium Limited, pointing to a sale of the stadium to the GFA worth £16.5 million in 2018 – describing this as possibly the biggest land transaction in Gibraltar’s history.

Mr Gomez goes on to say that the Governor forms part and parcel of the Government of Gibraltar, acting on its advice in issuing the certificate and says the office of the Governor signed off on the GFA deal, describing this as “not at great remove from the GFA situation.” He argues that this makes him both judge and party in the application. Mr Gomez told the court that the Governor was consequently too close to this transaction to the extent he wanted it to succeed.

Mr Gomez claims this creates an institutional bias that the Governor should have recused himself from.

Taking the question of who owns the land further, Mr Gomez also argued that the land belonged to the Crown and that the Crown didn’t necessarily mean the government.

Public & Human Rights lawyer Lord Pannick KC addressed all the arguments put forward by Mr Gomez.

Lord Pannick said it was a “helpful fiction” to speak of the Crown as the owner of the land but the constitutional reality was that the powers and functions of the Crown are performed by ministers. He accused Mr Gomez of taking the court back to tudor times in this reading.

He attacked Mr Gomez’s arguments that Allan Asquez had rights under the constitution to an alternative site in the new building or an extended term of compensation. Lord Pannick said the right is for a prompt payment of adequate compensation, and that Mr Gomez himself agreed the payment was adequate.

He argued that although there might be value in being able to choose a relocation in the new build or an extended period of time at the premises, the absence of this was not a breach of constitutional rights because it still allowed for reasonable compensation. 

He said there was no constitutional basis whatsoever for the complaint.

Mr Gomez argued that this method did not allow Mr Asquez adequate judicial review of the eviction, but Lord Pannick highlighted that the right to question the matter in law had already been fulfilled by the current proceedings.

On the subject of the Governor’s role or alleged conflict in the decision, Lord Pannick argued that Sir Ben Bathurst was acting in a quasi-judicial role and that he had an obligation not to arrive at a condition that is satisfactory or requested by the Government, but to consider the merits. He said there was no evidence to suggest the Governor did not take these resonsibilities seriously.

He said that the Governor’s main question in issuing the certificate would be whether the decision was in the public interest of Gibraltar’s economic development and that it was appropriate he take such a decision be taken by the Governor precisely because of his status as an independent and impartial person.

Mr Gomez is calling for the certificate issued to his client be declared null and void. 

Allan Asquez’s company VSB Ltd is represented by Charles Gomez and Nick Gomez.

The Government, the office of the Governor and the Attorney General are represented by Lord Pannick KC, as well as Jason Pobjoy KC and TSN lawyers Owen Smith and Luke Stagnetto. 

The Chief Justice will now deliberate on the submissions.