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Friday 21 September 2018
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Privacy is our right

IT WAS a bright cold day in May, and the clocks were striking 13.

This opening line is a paraphrase of the famous opening line of George Orwell’s novel 1984. It’s fitting, we feel, given what took place in the Senate on Tuesday.

Attorney General Faris Al-Rawi, without citing specific legal precedent, made a chilling declaration.

“There is no right to privacy, as some people allege exists in this jurisdiction, but which our courts do not recognise,” Al-Rawi said, piloting debate on a Bill to amend the governing statute of the Strategic Services Agency (SSA). Justifying the Government’s flawed decision to bring the Bill with only a simple majority, he said the courts are “replete with judgments that say the right to privacy is not, per se, a right.” He did not name a single case. Not even Orwell could have dreamt up this.

We are of the view that all citizens in this country have a right – both legal and natural – to privacy.

That right may not be absolute, but it exists.

Support for our contention comes from the Constitution, the supreme law of the land. It states, at Section 4, that among our fundamental human rights and freedoms is “the right of the individual to respect for his private and family life.” No amount of legal sophistry can erase this provision. As former Chief Justice Michael de la Bastide said, even if the words do not say “right to privacy” the meaning is clear. “Respect for” in no way dilutes.

Further, it must be remembered the right to privacy is the natural corollary of other rights which are not in dispute. The Constitution protects “the right of the individual to life, liberty, security of the person and enjoyment of property.” None of these protections make sense in a world where privacy is ceded.

The law should, additionally, be understood in terms of natural law. It is inherent to our human nature that we be afforded privacy.

What dignity do we have, what quality of life do we enjoy when our every move – intimate or otherwise – is subject to Big Brother? That said, the Attorney General’s position may not be wholly without basis. It may be attributable to a grey area which has frequently arisen on the question of the direct effect of the Constitution.

Some lawyers are of the view that constitutional rights are only relevant when State entities are involved. Hence, no lawyer in Therese Ho v Lendl Simmons cited the Constitution. Instead, the lawyers worked with tort and common law. The judge in the case expressed the view that “there is dire need for the enactment of statute.” Yet, the contention that the Constitution is not relevant to private matters is absurd. Why should the State have a duty not to mind our business while private citizens do not? What is more, there is law which already exists which enshrines this right. Besides the Constitution, there is international law such as the UN’s Universal Declaration of Human Rights.

Article 8 states, “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Even in the United Kingdom, which does not have a written constitution, a right to privacy has been found by way of the European Convention on Human Rights. Ironically, in the Senate on Tuesday, Al-Rawi said the SSA Bill was brought upon the insistence of unnamed international actors. He should listen more carefully.

While the State should temper rights with the larger public interest duty to enforce national security, the Attorney General’s position on the right to privacy – saying it does not even exist – is a frightening one. As Benjamin Franklin said, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” Privacy, we say, is our right

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