The need for legislation

On March 14, 1997 the then opposition MP Keith Rowley brought a motion in the House of Representatives asking that the House condemn the “political use to which the security services are reportedly being put.” The issue arose in the context of allegations that the then Prime Minister Basdeo Panday was spying on the internal workings of the opposition People’s National Movement. Prime Minister Panday, in the debate on the motion, countered by stating, inter alia, that spying on the opposition had been the norm under other regimes and proceeded to read into Hansard a newspaper article headlined “Manning: We used to spy too” which alleged that Opposition Leader Patrick Manning had admitted “that when his Government was in power, he too used the National Security Council to find out what was happening with other political parties.”

Allegations of government spying and wire tapping are by no means novel in this society.  From time to time in Parliament opposition MPs have complained that their phones have been tapped and that they are in possession of information that the security services have engaged in illegal wire tapping.  Perhaps the most notorious event in recent history was the alleged importation in late 2002 by the Office of the Prime Minister of multi million dollar spy equipment reputed to have been purchased from Israel. Apart from supplying parliamentary rhetoric the question of government surveillance and telecommunication interception raises serious legal questions, a fact which has not been lost on various governments as former Attorneys General Keith Sobion and Ramesh Lawrence Maharaj have both remarked in Parliament on the need for a legal framework governing this area.

However in the absence of statute it would appear, if parliamentary comment is any guide, that the security services have quite happily been engaging in wire tapping and other covert surveillance with little heed being paid to the legality of such conduct. In doing this they would not in any way be unique.  In England it was apparent that the security services had engaged in seemingly unrestrained wire tapping and other communication interception until some unfortunate member of the prosecution made the mistake of admitting this in court.  This spawned the infamous Malone decision in which the UK court ruled that there was no right to privacy recognised at common law.  Happily for British citizens, matters did not end there and Malone appealed to the European Court of Human Rights which ruled that police wire tapping was in breach of the right to respect for his private life guaranteed by the European Convention on Human Rights.  The direct consequence of this ruling was that the government was forced to enact a statutory framework for telephone tapping in the form of the Interception of Communications Act, 1985.
 
The right to respect for one’s private life may sound familiar as it exists locally, being one of the fundamental human rights and freedoms protected in our much maligned but still effectual Constitution. The only difference between the UK and the local position appears to be that to date the security services have avoided ever admitting publicly that wire tapping is conducted locally, and in the absence of a judge’s ruling that such conduct is illegal, no one cares to pass the legislation which would regulate this practice. That the interception of communication by government authorities without statutory authority is illegal seems palpably clear.  Under common law, the action for breach of confidence has since moved past the Malone case and has evolved to the point where it has accepted that “a proper degree of privacy is essential for the well-being and development of an individual and restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”  Constitutional law as well has noted that an individual must be protected against arbitrary interference with his privacy. The European Court of Human Rights has ruled that respect for private life mandates that individuals be entitled to sufficiently clear “indications as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures.”

So this raises the question as to the way forward.  Until some public authority admits to or is discovered engaging in wire tapping or other covert surveillance and there is judicial and public indictment of the practice, empiricism suggests that Parliament will remain wilfully impotent in this area.  It seems a pity that such legislation which is so manifestly in the public interest so often finds genesis only in a judicial finding of illegality or unconstitutionality instead of the considered and deliberate resolve of the Parliament of a functioning democracy. That the government should have the power to undertake covert surveillance seems axiomatic. The current trend of kidnappings alone would be justification enough for such powers.  That such powers should only be exercised with the authorisation of a Judge of the High Court and not at the untrammelled discretion of the executive seems similarly axiomatic. The potential for abuse is too great.  In these matters it behoves us to pay regard to Lord Brown-Wilkinson’s observation that “the dossier of private information is the badge of the totalitarian state.”
 
By Rishi P.A. Dass
The Law Association
of Trinidad and Tobago