A contentious law that will sanction wiretapping as a tool in the fight against crime was passed in the National Assembly last night after a fiery debate weighing the need for increased protection against the potential trampling of the rights of citizens.
The government played up the Interception of Communications Bill 2008 as a major initiative to enhance intelligence gathering by the security forces, while members of the main opposition PNCR-1G and the AFC withheld support because of serious reservations about its constitutionality, its potential for abuse by the state and the absence of accompanying provisions for oversight. A major concern was also the lack of wide consultation on the legislation, in light of its reach. Although similar concerns were raised about the Telecommunications (Amendment) Bill 2008, intended to aid the tracking and identifying of persons in possession of the cellular phone devices, it was also passed during yesterday’s sitting with the guarded support of the PNCR-1G. The AFC did not support either bill, saying that they represented an erosion of civil rights, similar to situations in Zimbabwe, Venezuela, Uganda and even the US where such laws have been heavily criticised.
Members from the two sides of the house butted heads for a little more than five hours and after a shouting match led to a brief suspension of the proceedings PNCR-1G MPs walked out of the parliamentary chamber shortly before the wiretapping bill was passed. It received its final reading around 10.35 pm, after an anti-climactic few minutes were spent sorting out amendments that were approved.
The laws were formulated in response to the widespread use of mobile phones in the planning and commission of major crimes. The wiretapping law will effectively prohibit the interception of communication unless a warrant is issued by a judge based on an application. Intercepted communication obtained on a warrant will also be made admissible in any criminal proceedings.
Government members argued the absence of the law was one of the reasons why it was difficult to do anything about the illegal tapping of former Police Commissioner Winston Felix’s phone, which created a scandal when his private calls were released to the public – a situation that was cited by several opposition speakers who bemoaned the fact Felix ended up facing the brunt of the resulting persecution.
The spying equipment found in a truck at Good Hope belonging to accused drug trafficker Roger Khan was also used as an example of ongoing domestic spying during the debate.
Minister of Home Affairs Clement Rohee told the house that the law is intended to help the security forces to adapt to the increasing sophistication of methods used by criminals. He was aware of the controversy over the proposed law, but sought to allay fears and anticipated arguments about its legality by saying that a careful balance is found in Article 146 of the Constitution, which protects a citizen’s right to freedom of expression, albeit with provisos that include national defence and public safety. He also emphasised the role of judges in the issuance of warrants for wiretaps. “At every stage of the process, the court has a firm grip,” he said, though acknowledging exceptions in the case of national emergencies or in cases where approval for a warrant is impractical due to urgency, a proviso that incited a lot of opposition concern about the potential for the abuse of the law.
“I don’t have a crystal ball to predict if this bill, when it becomes law, will be abused,” he said, but assured that the safeguards would be in place to protect citizens. He also said the government’s commitments to Caricom were being met, while OECS nations are currently moving ahead with similar laws.
PNCR leader Robert Corbin was disappointed that the bill was not sent to a special select committee, a practice negotiated between the parties for the treatment of controversial legislation. He called it a flimsy law, and worried that it would see the creation of spy offices at telecommunication providers GT&T and Digicel, who he said would be burdened by the obligations under the law. He situated fears over the law’s application in the context of what he described as the regular breach of the law by state agents like the police as well as the administration itself, right up to the Office of the President.
(He cited the arrest and detention of young men in many villages -a frequent complaint of his party -as well as the OP’s failure to put lottery funds into the consolidated fund as is required by law -a breach raised by the Auditor General in the past.) As a result, Corbin dismissed the government’s safeguards as meaningless and described the law as very suspect in the current landscape.
Thin line
He also said there was a thin line between protection and privacy, a point that was also raised by AFC leader Raphael Trotman, who expressed grave doubts over the government’s sincerity about the need for the law. He and fellow AFC MP David Patterson stayed behind after the opposition walkout. He said while his party supported advances in policing to meet the evolution of crime, it should not be done at the violation of citizen’s rights. “Our leaders will be afraid to speak their minds,” he said. Trotman also lamented the government’s refusal to cede “political space” in response to the widespread concerns about the proposals.
He also reiterated his qualms about the government moving ahead before other Caricom member states, which considered enacting the legislation earlier this year at a special Heads of Government summit on security. He said if the other territories, which he said have hesitated because of concerns in their respective jurisdictions, went ahead the law might have been more palatable. He questioned the speed to enact the law, stressing that lawmakers have a duty to consult with the people and ensure that the law would not interfere with their rights. “We are not the law,” he said, “We are the guardians of the law.”
According to the law, a warrant will authorise the tapping of communication transmitted from a private or public system to or from one or more addresses listed in the warrant. The warrant can be issued for a period not exceeding 90 days and may be renewed. Once a warrant is issued under this section a written application and affidavit would have to be provided within 72 hours of the issuing of the warrant.
The bill would also permit as directed by the minister responsible for national security the disclosure of the intercept to a foreign government or agency of such government where there exists an agreement for the mutual exchange of information. The unauthorized disclosure of intercepted information can lead to a fine not exceeding $5M and imprisonment for a term not exceeding three years.
Among the amendments to the bill that Rohee introduced was a provision for the in-court evidence of technical experts working for telecommunications providers to be held in camera in order to protect their identities. He said the new section was intended to address concerns that were ventilated in the public. The Postal and Telecommunications Workers Union (PTWU) expressed concerns over the law putting the lives of its members at risk, though Rohee did not name the union in his presentation.
A motion in the name of PNCR-1G MP Aubrey Norton, on torture allegations against members of the army that was also scheduled for debate was postponed after the protracted debate on the two bills.
Before the end of proceedings, Rohee complained about the politicising of the bill and he cited a section of the law to justify the detention of suspects to rebut Corbin’s comments about the police detaining people without cause, sparking uproar in the opposition benches. Corbin quickly accused Rohee of misrepresenting him and shouting match ensued, leading Speaker Ralph Ramkarran to call for a 10-minute suspension just minutes after he had agreed to extend the sitting to allow the completion of debate on the bill. Corbin later apologised and walked out afterwards, followed by the other PNCR-1G members (except Norton, whose motion was listed next on the order paper).
PNCR-1G MP Debra Backer later explained that the walkout was as a result of the “insensitive and cavalier statements” made by the minister to justify the arrest of innocent people. She said that even if the law was used, it clearly stated that there had to be “reasonable cause” to arrest them and very often this was not the case.
“On many occasions the police arrest persons on Friday evenings and subsequently release them on Monday without ever charging them”, she said. “And the statistics show that the majority of persons that suffer this fate are young men of African descent. Backer, however, said that the party will most likely be at the next sitting of the National Assembly.
