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THE RIGHT TO PRIVACY

Published: 
Sunday, May 15, 2016

According to Attorney General Faris Al-Rawi: “We say specifically that there is no right to privacy as some people alleged exists in this jurisdiction, but which our courts do not recognise specifically so. Our Constitution does in section 4(c) recognise the right to private and family life. Our courts are replete with judgments that say that the right to privacy is not per se a right. Our common law recognises a right which says that there is breach of confidence. Our equitable jurisdiction has, most recently, in certain cases recognised an equitable jurisdiction to the protection of certain privacy issues, but the debate is still ongoing with respect to a right of privacy per se.” (Hansard, Senate, May 3, 2016, p 20)

This statement has started a controversy about whether or not there is any right to privacy in this country. 

As far as the Government is concerned, there is none. However, instead of seeking to remedy that debatable lacuna in the law, the Government drove a bulldozer through that space to amend the Strategic Services Agency Act without stopping to fix a signpost for privacy along the way.

Former chief justice Michael de la Bastide said the following in response to Al-Rawi:

“The Constitution does provide for a right to privacy, the question is how is that defined. What are its limits? How does it reconcile with the right to freedom of expression? Obviously there has to be some balance...Respect for private life looks very much like respect for privacy and that is hardly distinguishable from the right to privacy.” (Newsday, May 5, 2016).

Perhaps, these differences of opinion might more easily be understood if there was some background understanding to how the Constitution has section 4(c) which reads as follows:

“(c) the right of the individual to respect for his private and family life.”

The reality is that the independent countries of the Commonwealth Caribbean, with the exception of T&T, adopted the template of the European Convention on Human Rights 1950, while T&T deviated in its adoption of the Canadian Bill of Rights 1960 template for the chapter on human rights in its Independence Constitution.

The Draft Independence Constitution published in the Guardian on February 20, 1962, contained the following provisions relating to privacy at section 11(c):

“(c) respect for the privacy of his home and other property….”

This draft wording would have been weaker than what obtains now had it been retained.

The change emerged out of proposals advanced by the Bar Association of T&T at the Meeting of Commentators on the Draft Constitution at Queen’s Hall over the period April 25-27, 1962. The President of the Bar Association at that time, Mr (later Sir) Hugh Wooding made a plea at the Queen’s Hall Conference for the adoption of the Canadian Bill of Rights, suitably amended, to replace the modified template of the European Convention on Human Rights that was included in the Draft Independence Constitution.

Mr Wooding said, inter alia:

“We have adapted things, amended them, added certain things, deleted certain things, and in the same way we can take the Canadian Bill of Rights and adapt them to suit us, and I do not see why we should be limited to choosing the Canadian Bill of Rights as it is or refusing to consider it altogether. I put forward, on behalf of the Bar Association, that it should be taken as a model, and it should be used as a means whereby we can help to shape our thinking in the matter, modifying it to the extent that may be necessary, and remembering also that this Canadian Bill of Rights is something which came into existence in 1960 and forms no part of the Constitution of Canada.”

The proposals advanced by Mr Wooding and the Bar Association were considered by the Cabinet, together with other proposals made at the meeting. The chairman of the Queen’s Hall Conference made the following statement at the commencement of the proceedings on Friday April 27, 1962:

“I am happy to be in a position to inform you, on the authority of the Cabinet, that your written comments and your suggestions made in this hall have received preliminary consideration. Further detailed consideration will of course be given to them but already certain decisions have been taken. These decisions are that at the Joint Select Committee to begin on Monday the Government representatives will propose :…..(c) the substitution for Chapter II of a Bill of Rights along the lines of the Canadian Bill of Rights with appropriate modifications including the introduction of safeguards. (Applause).”

This extract from the verbatim record of the Queen’s Hall Conference provides an understanding of how T&T switched from the modified template of the European Convention on Human Rights 1950 and adopted the Canadian Bill of Rights 1960 template for its bill of rights in 1962. That template was retained in 1976 when the country became a republic and it is from there that privacy can be debated.

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