Privacy Pros & Cons

The recent high-level of public concern over the SSA Amendment Bill was of limited concern to me, until I started listening properly. In the event, the proposed law was passed by the Parliament and there is some threat from the Opposition of a lawsuit to test its constitutionality. We will see.

Two very interesting stances surfaced during the heated debates and it is at these kind of moments that I sometimes think of our so-called political divide. Those were the Right to Privacy stance disclosed by the AG and the private briefing of Parliamentarians as a legislative tool.

Sen. Faris Al Rawi, Attorney General
Faris Al Rawi, Attorney General

The AG, Faris Al Rawi, was emphatic on 2nd May 2016 that we have ‘…no enshrined right to privacy under the law…‘. He was almost immediately contradicted by former CJ, Michael de la Bastide QC, who relied on Section 4 (c) of the Constitution which specifies ‘the right of the individual to respect for his private and family life’. In ‘The creep of Tyranny‘ on Monday 9th May 2016 in this newspaper, my colleague Michael Harris also made strong objections to the AG’s stance. Of course we have rights to privacy and those are entrenched in our Constitution, but now those rights can be limited by the new law, intended to promote national security.

This is all a part of what I have come to call the Global Information War or World War Three. In this phase, citizens’ rights to privacy and the space to consider, discuss, disagree and plan is all being challenged and effectively undermined by the incredible reach of the large surveillance agencies. I did not limit it to state agencies because there are a significant number of huge private sector entities which constantly read private information crossing their networks for their own private purposes.

The best single book on this which I would recommend is Glenn Greenwald’s ‘No Place to Hide‘. The title says it all.

Here in T&T we have known since the disturbing revelations of 2010 that private communications of a wide range of persons have been intercepted by the SSA and this recent furious debate in Parliament was to place those surveillance operations within a legal framework. It is also clear that we are beset by rising levels of increasingly violent and sophisticated crime, so this approach would be generally welcomed by beleaguered citizens.

The AG’s statement on ‘No Right to Privacy‘ alarmed and intrigued me. As AG, Al Rawi is the legal adviser to Cabinet so his views on this issue can readily be accepted as representing the views of the government.

In respect of the alarming aspect, I was struck by the tenor of the statement as it did not fit well with the notion that the SSA Bill was intended to target the ‘serious criminals’. It seemed to foreshadow a more general approach of broad-band surveillance and its tone alone gave me pause.

What was intriguing was the question –

‘Exactly who has no right to privacy?’

It seemed that the AG was speaking, on behalf of the government, in support of a great relaxation of possibly outdated notions as to the right to privacy. Do those new standards of openness apply to the State and its organs? How about the Cabinet? How about the very briefing of Parliamentarians in pursuance of this SSA law? It seemed to me that we were being told that the right to privacy previously assumed by citizens was in fact not guaranteed and further, that the State had rights to delve into one’s business.

No privacy rights for citizens and enhanced protections for the State and its organs is wrong-sided behaviour in a Republic. The Two taken together, taste terrible.

Of course there are many wrinkles and swerves which can be put onto this criticism, but the State is our creature, or ought to be, so its conduct must be exemplary and lawful.

Revisions to the Freedom of Information Act are upcoming and I would expect those to strengthen the rights of citizens to obtain information held by public authorities and to stipulate serious penalties for failure or refusal to do so.

All of which touches and concerns the second of my issues, the government’s invitation to privately brief Independent Senators and Opposition Parliamentarians on the proposals. Despite the ironies, given that the subject was national security, it may only have been possible to have private briefings.

The Opposition (UNC) made the strongest possible objections to this Government (PNM) proposal to host private briefings. The AG reminded the Opposition that when they were in government, the same procedure was used to obtain support for two new laws related to the CL Financial bailout in September 2011. I also remembered the 2013 objections of then leader of the Opposition, Dr Keith Rowley, on the very same proposal to host private briefings for the Independent Senators.

I noted the various political swerves with a smile, but that was not really the target of my attention. The substantive issue in 2011 is what concerns me, because it has a strong echo in my current efforts to obtain the details of the CL Financial bailout.

The two new laws the PP government were proposing in September 2011 were –

  1. The Central Bank (Amendment) Act 2011 – to prevent any lawsuits against or Judicial Review of the Central Bank in Relation to the CL Financial bailout;
  2. The Purchase of Certain Rights and Validation Act 2011 – to permit the Minister of Finance & the Economy to borrow an additional $10.7 Billion to fund the CL Financial bailout.

So, what happened in September 2011? These Acts were passed with the full support of the Independent Senators, but the Opposition did not vote for these new laws.

One of the items I requested in my legal challenge to the Minister of Finance & the Economy was the contents of that Parliamentary briefing to the Independent Senators in September 2011. My request was refused on the basis that it was exempt.

It is troubling to read the assurances of then Minister of Finance & the Economy, Winston Dookeran, to the Senate on 16th September 2011 on the question of the briefing –

“…I just want to give you the assurance which I gave to the Lower House when we debated this, that already the Ministry, along with the Central Bank and Clico, have begun the preparation of a public document—many questions that are still to be answered—to provide the necessary information. In addition to that, we did present to the hon. Senators, for those who afforded us the opportunity to accept our invitation, a document that is in the vicinity of 57 pages as of now, outlining all the necessary information that led to the story that assess what is the current challenges and why the proposals to go forward have been put forward.

This document, I assure you, along with the questions and answers, will be converted into a simple, easy to read, hopefully, document for the sake of establishing that this Parliament has mandated us to put this as an anchor document for the purposes of evaluating our performance in the future…”

Yet, despite these clear assurances from the Minister, the presentation used to obtain the support of the Independent Senators was deemed ‘exempt’ and denied me.

The High Court ruled in my favour on 22nd July 2015 and ordered the release of the requested documents. The Ministry quickly appealed and as yet, I have been unable to obtain those documents, despite my constructive dialogue with the new Minister of Finance & the Economy, Colm Imbert.

It is even more concerning to consider the situation in relation to the Central Bank (Amendment) Act 2011 which the High Court deemed ‘unconstitutional‘ as a law which “…infringed the separation of powers and ultimately the rule of law…” in its ruling in the Stone Street Capital v AG case in 2013.

The intention of that Act was to prevent any lawsuit or Judicial Review against the Central Bank and that created a situation in which the Central Bank, acting as agent of the State in managing the CL Financial bailout would be effectively immune from the oversight of the Courts. Carte Blanche.

The entire case was to regain control of some 5.7 million Flavorite shares held by Clico Investment Bank (CIB). Stone Street Capital is owned by Andre Monteil, who was one of the CL Financial chiefs, having been its Group Finance Director and Chairman of CIB up to April 2008. Monteil was certainly one of the PNM’s most powerful ‘sowatees’ in the period up to 2010, serving as Party Treasurer, as well as Chairman of Home Mortgage Bank, HDC and EFCL.

The State appealed that ruling and that appeal continues despite the fact that the PNM, who voted against that law when in opposition, are now in power.

The imperative to control information and oversight certainly appears to be in conflict with the assertion that there is no established right to privacy. Whose privacy? We will see.


10 thoughts on “Privacy Pros & Cons

  1. Afra… Politics will continue to be opportunistic and may as well be called The Politics of Convenience. Continue to be as discerning and help people to QUESTION MORE. Your highlight: “No privacy rights for citizens and enhanced protections for the State and its organs is wrong-sided behaviour in a Republic. The Two taken together, taste terrible”… now that IS scary! This is also alarming: “The Ministry quickly appealed and AS YET, I HAVE BEEN UNABLE TO OBTAIN THOSE DOCUMENTS, despite my constructive dialogue with the new Minister of Finance & the Economy, Colm Imbert.” I would like to put my trust in Imbert and Al Rawi. However, as a priest once responded to a remark about ‘other people’s criticisms’ which should not have affected him seeing that he had taken clerical vows of humility and so on… his response was…”but after all…I’m only human!” Hmn-n-n!… true indeed! RhonaB.

  2. Hi Afra
    just to say tx for article and note letter to editor written by Robin Montano, whose phone was noted publicly as tapped.

    As a past anti-smelter/environmental/civic activist and as an outspoken FMR local chapter transparency directors(TTTI & landate ) – I recognise the dangers of this invasion into personal privacy under “national security disguise!!”- For already perceived “corrupt and incompetent” TTPS/MNS to be given such unchecked powers under political directorate is a dangerous precedent in our region – history shows from saddam to syria. from hitler to haiti and argentina to america… misuse and abuse of such powers will further undermine our so called “freedoms” and democracy…a creeping dictatorship in the making!

    T&T citizens do need to be MEDIA educated about those rights and i suggest – ‘Thinking things over’ (Hyatali commission) and ‘Thinking things through’ (Wooding Commission) be made public education pullouts…I have asked repeatedly that these be in our school curriculum but to date no such action…if we do not know how can we protect?

    I think it is important that a pubic civic online movement (via website) be established asking citizen to protect these constitutional rights…that is listed as one of our FUNDAMENTAL HUMAN RiGHTS AND FREEDOMS (modelled on CANADA constitution at our independence for GOOD REASON!) – and bring this concern to GLOBAL/INTL attention of Commonwealth Secretariat & CaricoM & UN human rights; President of T&T (who enshrined duty is to protect our rights under constitution!!) and both CJ & CCJ!!

    And it is worrisome that some temporary senators (who are these folks?) with no known longstanding track record in public service can be appointed as “independents” and vote to take away our rights ..something is inherently wrong with this process..and the current President must now explain these selections/appointments to public!!

    It is same even with a politically-appointed Speaker as acting President being allowed to proclaim any law that affects citizens’ rights and due process!! It undermines both good governance and democracy !!

    ALL this needs to be exposed and corrected…acting appointments in public service cannot create/change /amend policy or protocols…so our highest public offices (Parliament) should also be similarly guided…hope I have given you food for thought and even more action…and not even considering “conflicts of interests” issue under integrity in public life act!!…for it was President George Washington in his farewell speech of 1796 who warned of “private political parties” “they” are likely in the course of time and things, to become potent engines, by which cunning ambitious and unprincipled men will be able to SUBVERT the Power of the People and USURP for themselves the reins of Government – from ‘The buying of the president 2004’ – by Charles Lewis (and center for Public Integrity)

    Are we doomed?

    Citizens for Ethics and Good Governance( CEGG)
    for pen is mightier than the sword

  3. Privacy Pros & Cons

    I am shocked that you are unaware that real privacy is guaranteed only to those in power and denied all others. Every lawyer will attest to the genius of parliamentary immunity that extends to party supporters, especially their financial supporters. To be ignorant of these basic de facto standards that is common knowledge here is to be living in a bubble; it is unconstitutional. Please remember our email-gate fiasco. The secured salaried accumulation or is it a seconded swag assurance is licence to con citizens by the pros they elected that their privacy is threatened, which is true, and so justify the extended looting of a treasury that empties every five years and so becomes transparent. Sadly too, you assume the ‘convenient’ political divide to be top down, but I know you listen to D. M. Rudder’s “Trini to de Bone” that claims, ‘…how we vote is not how we party,” so we accept that the price of progress is high. So high is it that ex U.S. President’s Jefferson’s ‘Slow creep of tyranny’ has shamed Usain because the tyrants do not need a place to hide. We like it so…we free.

    Like the adjustment to the speed limit, only because it hit our private purses, we must be victims of unwarranted invasive scrutiny that reconstructs data, which hanged nine in 1999, freed two in 2012, et al and will be strong enough to prove the un-provable. The CCJ is sidelined in its home and we call this a democracy. History has proven and Fanon opens The Wretched of the Earth asserting that it is through violence and only violence (Dana) that change has been wrought…even Christ was violently crucified. We cannot give a mighty pen to the illiterate billions- the malaise is global, some of whom hold PhD’s, yet I do not believe we are doomed. Many of us believe that you are right but our history is so bloodied and our present more so that we silently hope for the miracle that will dispel the darkness of doom. We can conform and behave, but the loopholes must be sealed as they are discovered and their creators severely punished.

    1. Hi Chris,
      My article is both realistic and aspirational, oscillating between those two poles to achieve some improvement in understanding and the overall situation. The double-standard is exactly what I am highlighting and the second part to this is due to be published on Wednesday 8th June 2016 as ‘Private State?’
      Thank you for your support

      1. Those were never questioned, I was being satiric. Those double standards segregate the theory from the practice, the spoken from the deed. The primacy of prevarication is phenomenal and its brazen defence by those we are supposed to trust worries me to no end. I often feel that you need much more than moral support. Revolutionaries do not get close enough to the truth to disturb the status quo. Privacy is a mask.

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