‘Shocking’

One week after Prime Minister Kamla Persad-Bissessar revealed that President George Maxwell Richards and former Chief Justice Satnarine Sharma were among those spied on by the secret Security Intelligence Agency (SIA), the Judiciary said it was clear that the SIA spying went beyond any mandate to fight crime, as claimed by Manning.

“None of the subjects of surveillance, including judicial officers, were afforded any form of due process or the protection of any law,” the Judiciary said in a statement issued by Court and Protocol Manager Jones P Madeira. “Nor, if the former Prime Minister is to be believed, was there any system of auditing or supervision to ensure that the SIA stayed within its mandate.”

“In the circumstances there can be no basis for the bold assertion, which is insulting and displays a shocking disregard for the rule of law,” he said. “The SIA was permitted unauthorised, unwarranted and untrammelled access to the private affairs and communications of a wide cross-section of the population, amounting to a most egregious violation of privacy.”

“In the case of the Judiciary, the inevitable consequence would be an undermining of its independence and the proper administration of justice,” the Judiciary said. “Given the broad sweep of the SIA’s surveillance, one is driven to the conclusion that the only rational explanation for some of the ‘wiretapping’ is that it was conducted with the hope of acquiring ‘negative’ personal information that might be used as leverage.”

It noted that, “judges are subject to Special Branch vetting before appointment and are not exempt from legitimate inquiry by lawfully constituted agencies where that is warranted and duly authorised.” However, “what cannot be tolerated is any arbitrary intrusion into anyone’s private affairs with no legal or legislative foundation.”

With the Parliament set to debate the Interception of Communications Bill, which proposes to regulate the practice of wiretapping, the Judiciary welcomed moves to pass legislation.

“We are encouraged that the current Executive has indicated its intention to bring legislation before Parliament to regulate wiretapping,” it said. However it urged the Government to take steps to destroy material obtained illegally by the SIA.

“The partial list of subjects revealed by the Prime Minister makes it clear that the SIA’s activities went beyond the boundaries of criminal investigations,” the Judiciary added. “The Judiciary is therefore appalled by the apparent nonchalance with which it has been asserted that law-abiding citizens had nothing to fear and that a mandate had been given to the SIA to monitor only those who came to its attention as a result of genuine criminal investigations. The implication of that assertion, which the Judiciary strongly rejects, is that if anyone was the subject of surveillance then it must have been for a justifiable reason.”

The comments from members of the Bench came as the body set up by statute to regulate lawyers also expressed its concern over the SIA wiretapping.

In a statement also issued yesterday, the Law Association condemned the practice of surveillance on judges and other citizens without statutory backing as a “violation of fundamental rights,” “a direct attack on the Constitution” and an “attack on the independence of the Judiciary.”

“The Law Association deplores these violations of the fundamental rights of citizens and considers that they are a direct attack on the Constitution,” he said. “It was stated that judges were among those being spied upon. This constitutes an attack on the independence of the Judiciary,” association president Martin Daly SC said in a press release.

The association said the Interception of Communications Bill needs tightening.

“Unfortunately, a preliminary review of the draft legislation reveals serious deficiencies with deeply disturbing consequences the effect of which will leave law-abiding citizens open to abuse,” the association said.

The Interception of Communications Bill proposes a scheme whereby a judge would issue a warrant for interception upon application by an authorised officer of the Ministry of National Security. However, the Law Association yesterday pointed out that the legislation has a gap which would apparently still allow warrant-less surveillance to take place, but under another law, the Telecommunications Act. It also criticised the scope of the proposed situations when the Ministry of National Security could apply to spy, arguing that surveillance “should target only criminal activities of a serious character.”

The Law Association noted that the bill has a clause which allows for an application to be made without supporting documents but the information gathered can still be used as evidence. It warned that, “the cumulative effect is to allow abuse of power by legitimising “fishing” expeditions, again a disproportionate incursion into private and family life.”

The law body also said there were not enough safeguards for the storage and destruction of collected information and that there were inadequate safeguards to test whether the spying is proportionate to the interests of national security.

Yesterday, a former member of the Telecommunications Authority of Trinidad and Tobago (TATT), Dr John Price, also argued that there are flaws within the Telecommunications Act. He said there were clear gaps in the oversight and powers of TATT, the telephone network watchdog, in relation to wiretapping by the SIA.

Prince, whose exit from the TATT in 2006 under unclear circumstances is now subject to court suit, questioned the legality of a reported intervention by the Ministry of National Security into the network of private telecommunications operator Digicel.

“There must be a written law under which the Minister of National Security acts,” Prince said. “That is the area of uncertainty because while there is a written law to Govern the activities of the Strategic Services Agency (SSA), the same cannot be said of the SIA.”

Section 22(1) (e) of the Telecommunications Act stipulates that the provider may cooperate with surveillance, “upon request made by the Minister of National Security and subject to any written law, to collaborate with the Ministry in matters of national security.”

Digicel, in a statement issued on Monday said it was, “assured that the equipment would be used solely for investigating issues of national security and our compliance was therefore in keeping with our licence to operate.”