Ex-Minister gets leave to seek judicial review against Govt on wiretapping

But such reports, in accordance with the Interception of the Communications Act, in which the minister must also disclose the number of persons arrested arising out of SSA’s wire-tapping into citizens’ conversion, have not been filed since 21012 and yesterday a High Court judge granted leave to former Transport Minister Devant Maharaj to seek judicial review of the failure to lay the reports in both houses of Parliament.

Justice Frank Seepersad granted leave as well to Maharaj, to seek a declaration from the High Court that the minister breached the statutory duty mandated under Section 24 of the Act, to prepare such annual reports for 2012, 2013, 2014, 2015.

The 2016 report is due in March next year.

The Act was made law in 2010 and the 2011 report was the only one filed by the National Security minister, in which it was revealed that there were 267 instances of wire tapping interception based on warrants obtained from a judge, which are required under Section 8 of the Act. However, Section Six (2) (b) of the Act permits an “authorised officer” to intercept communication for intelligence gathering in the interest of national security, for the prevention of detection of an offence (the penalty for which on conviction is ten years imprisonment), and includes an offence which death or imprisonment for the reaminder of a person’s natural life, is the penalty fixed by law. The section stipulates the Chief of Defence Staff, the Commissioner of Police and the director of the SSA, as the sole persons authorised to make interceptions for such prescribed intelligence- gathering purposes.

The Act mandates that reports must be laid in both houses of Parliament yearly. The 2011 report that was laid in Parliament disclosed that there were 52 arrests and detentions made as a consequence of wire-tapping and telephone interceptions.

As a basis for his application for judicial review, Maharaj contended that there has been 418 murders in the country as of last week Friday. The Police Service, he stated, believes the majority of such murders were gang and drug related. The objective of the Act, he stated, was intended to allow some intrusion into citizens’ right to privacy, so as to protect the overall national security.

The refusal to lay in Parliament the annual reports as to the outcome of all forms of phone and wire-tapping which Section 6 (2) (b) allows, in which the Chief of Defence Staff and the Commissioner of Police have the sole right without obtaining a court Order, to tap into citizens’ conversations, is in violation of the minister statutory duty. Attorney and former Industrial Court Judge Dinesh Rambally ,leading the arguments for Maharaj, submitted to Justice Seepersad yesterday that the failure of the minister to lay the annual reports before both Houses of Parliament, is against the spirit of the Act. Whoever is the minister responsible for national security, he added, is therefore accountable to the courts for his or her inaction.

Justice Seepersad asked Rambally, who also appeared with attorneys Jagdeo Singh, Larry Lalla, Criston Williams, Kei Taklalsingh and Karina Singh, for Maharaj, why, in the light of four years of such reports having not been laid in Parliament, Maharaj was so late in filing given the nature of judicial review? Rambally submitted that the breach is a continuing one and Section Six (2) (b) of the Act encroaches on personal and private rights of citizens.

Justice Seepersad granted the leave for a declaration that the minister responsible for national security, failed to prepare the reports, in breach of his statutory duty. And, that the minister failed to cause a copy of such annual reports to be laid in both houses of Parliament.

The judge fixed a case management conference for January 17 at the Hall of Justice.