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.
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 –
- 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;
- 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.