Nandlall: `It is a desperate measure and in the eyes of the government crime in Guyana has reached
desperate proportions’
The government’s controversial wiretapping bill had a bumpy passage in the National Assembly on Friday, where great doubt, scepticism and fear dominated the scrutiny of its sweeping provisions.
Both the PNCR-1G and the AFC refused to support the bill during the sitting, citing its potential for abuse as well as the infraction of civilian rights as some of their concerns.
Once assented to by the President, the law legalises the monitoring and recording of transmissions conveyed by fibre optic cable or any other form of wire line, by wireless telegraphy, voice over Internet protocol, internet satellite and all other forms of electromagnetic or electrochemical communication. Telecommunication service providers will be duty bound to provide assistance on interception warrants. The authorised officers – the Chief of Staff of the army, the Com-missioner of Police, and the Commissioner-General of the Guyana Revenue Authority -will be able to apply to a judge for a 90-day warrant to intercept communication, which will be illegal otherwise. Anyone found guilty of illegal wiretapping would be liable to a fine of $5M and a jail term not exceeding three years. A judge, before granting the warrant, must be satisfied that the information obtained would likely assist investigations. There is also a proviso vesting authority in the designated minister in the case of national emergency. Addi-tionally, personnel acting in good faith under the ambit of law would be immune from liability for their actions.
PPP/C MP Anil Nandlall acknowledges the controversy over the law, suggesting that by the nature of the proposals it was inevitable. Nandlall, an attorney, however, rationalises the move to introduce the law as a measure to address the very serious crime situation in the country. He cites the crime wave that was sparked by the 2002 jail-break and the bloody massacres that have occurred recently. He emphasises the need for improved intelligence gathering capability of the security forces, particularly since criminals have access to advanced technology.
Nandlall dismissed the opposition concerns over the possible abuse of the law to victimise opposition parties and other vocal critics of the government, citing the safeguards in place as well. But he also reminds that members of the opposition were not immune from the application of the law, if they are involved in illegal activity.
Nandlall, addressing the assertion that the law would infringe the citizens’ right to privacy, points out that there is no fundamental guarantee to privacy in the laws. The irony, he adds, is that the wiretapping law would create the protection that was not in place when the former Commissioner of Police Winston Felix’s phone was tapped. He says as a lawyer he has serious concerns about the nature of the law, but says it is necessary in the fight against crime. “It is a desperate measure and in the eyes of the government crime in Guyana has reached desperate proportions,” he said.
But AFC MP Khemraj Ramjattan has urged the government to act with caution before application of the law, particularly in light of the sweeping terms of the legislation. He adds that the government’s recent legislative agenda has reflected an intention to whittle away civil liberties and he sees the new law as simply another way of accelerating this trend. And although serious crime deserves serious measures, consultation becomes essential to help the citizenry understand how it will be affected.
Ramjattan likens the law to the National Security Act that was enacted during the PNC’s time in office. He accuses the PPP/C of deviating from the late President Cheddi Jagan’s stand on those laws. He says some of the things the party was against during its time in opposition, it has been implementing with ecstasy. At the same time, he criticises the absence of any provisions for oversight by any agency, including the parliament. In other countries where such laws are used there are usually oversight components. Ramjattan also says it is vital for the government to address the root causes of crime, pointing out that poverty creates criminals.
PNCR MP Basil Williams, however, says the government is up to no good with the law. Although he believes it represents a serious violation of the privacy of citizens, he acknowledges there is no law. According to him, privacy was once enshrined in the law, but was left out when the fundamental rights, as agreed during the constitutional reform process, were set out in the constitution in 2003.
Nevertheless, he believes the powers vested in the security minister under the law created an opportunity for abuse under the guise of national security. He was referring to Section 3. 2 (b) of the law, which provides for the minister administering the act to approve a wiretap if a warrant is impractical because of the urgency of the case.
Williams also contends that the law would unfairly impinge on the operations of GT&T and Digicel, and he laments the absence of mechanisms for compensation for the companies and to ensure that they can challenge the scope of warrants. In the US, for example, there are special courts set up for this.