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CHALLENGING PRIVACY AND THE SSA AMENDMENT

Published: 
Sunday, May 22, 2016

The showdown last week between Attorney General Faris Al-Rawi and the Dean of the Faculty of Law at the UWI, St Augustine Campus, Prof Rose Marie Belle-Antoine over the issue of privacy rights in T&T has opened many eyes. 

All of this has come about because of the controversy over the amendments to the Strategic Services Agency Act. There is one view that says that the expansion of the remit of the SSA links it overwhelmingly to the Interception of Communications Act (ICA) 2010 that a three-fifths majority ought to have been applied. The justification for that is based on the fact that the ICA required a three-fifths majority for it to be passed.

The other point of view is that the SSA Act on its own was not originally passed with a three-fifths majority and therefore no such majority was required to enact any amendments to it.

Inevitably, it appears that this matter is heading for the judicial system for an interpretation. In the meantime, there is a raging political battle about the existence of a right to privacy in this country.

On May 3, the Attorney General told the Senate:

“We say specifically that there is no right to privacy as some people alleged exists in this jurisdiction, but which our courts do not recognize specifically so. Our constitution does in section 4(c) recognize 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.” (Hansard, Senate, May 3, 2016, p 20).

However, at the UWI forum last week, he stated that “the right to privacy is a qualified one and is not absolute.” (Newsday, May 18 2016, p 5).

One senses that the Attorney General has shifted his position somewhat from the hard line about no right to privacy during the debate on the SSA Amendment Bill to a softer line about the difference between a qualified right and an absolute one.

In the intervening period he did come under fire from former chief justice Michael de la Bastide who challenged the original line of argument from the Attorney General when he argued that there is a right to privacy in this country.

The underlying political issue in this entire debate about privacy is why is the Government so adamant that its citizens should not enjoy a right to privacy? There has been so much debate and discussion in the law in other jurisdictions to advance the cause of privacy for people in a modern world, yet the Government of T&T, through its Attorney General, is fighting tooth and nail to ensure that there is no political concession on the question of privacy rights.

There must be a deeper political reason for adopting this position. Last week, the leader of the Opposition questioned the Attorney General about his statement in Parliament about how he became aware that the work of the SSA resulted in people standing before the courts in the Dana Seetahal murder case. 

She challenged him to disclose to the public how he came into possession of that information. She raised the issue that the Attorney General might have access to information inside the SSA.

This is a serious matter, especially when so many undertakings were given during the debate on the SSA Amendment Bill about all of the firewalls that will exist to protect the personal data of individuals.

The entire episode surrounding the SSA Amendment Bill has been the subject of controversy. The manner of appointment of the director, the lobbying of some independent senators, the debate over whether the bill required a three-fifths majority or not, and, the fear of whether the data intercepted by the SSA would be used for political advantage by the incumbent Government without public disclosure, were some of the controversial issues.

The issue that may lie at the core of the legal challenge is the constitutionality of the bill once it gets presidential assent. That issue may be similar to what was litigated in the Maxi Taxi Act 1979 that was overturned in 1992. 

The then attorney general, Keith Sobion, in piloting the replacement bill gave his core reasoning as follows :

“Before I look at the bill which is before this honourable Senate, I think it is important by way of background, that I refer to the original purpose for enacting the maxi-taxi legislation in 1979. I propose to take that course principally because this present bill is substantially the same as the Act of 1979. The difference which appears on the face of the bill is that we are seeking a specific constitutional majority in order to preserve this legislation from challenge, and that is as a consequence of the decision of Mr. Justice Wills.” (Hansard, Senate, May 28, 1992, p 153).

The reality was that the original Maxi-Taxi Act 1979 was not passed with a three-fifths majority. Essentially the same bill was re-enacted with the required majority. That may be where the SSA Amendment Bill could go.

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