Fierce growling dogs will roam everywhere – Is that time now?

Oct 19, 2008 AFC Column, Features / Columnists

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ADDRESS TO THE NATIONAL ASSEMBLY BY RAPHAEL G.C. TROTMAN, M.P. ON THE INTERCEPTION OF COMMUNICATION (WIRETAPPING) BILL NO. 19/2008-October 17, 2008

“They had come to a time when no one dared speak his mind, when fierce, growling dogs roamed everywhere, and when you had to watch your comrades torn to pieces after confessing to shocking crimes.” (Animal Farm, Chapter 7)

The “they” Mr. Speaker were the animals on Orwell’s famed Animal Farm who thought they were living in an egalitarian society. The “they” to whom I refer Mr. Speaker could very well be you, or me…or even the female newspaper journalist sitting in the Chamber today.

For those who can understand what I am saying, and Mr. Speaker I am minded to believe that you are one of those, then I remind you that the book Animal Farm itself had only 10 Chapters.

The establishment and collapse of the farm was a relatively short affair. Knowing that you are familiar with the work Mr. Speaker, I know you will remember that the time of the fierce dogs did not last forever.

Mr. Speaker, my own objection, and that of the AFC to this Bill are now a matter of public record. We are against the bill not because we are against efforts to suppress crime.

We are very aware of the new and emerging challenges and threats to national security and believe that they must be met with strong action.

We are against it because we are afraid, yes afraid, that this bill shall be abused and that the constitutional rights of ordinary, and not so ordinary, Guyanese will be threatened and violated at a rate far beyond that which presently obtains.

We have come to that time when people, and their leaders, will be afraid to speak their mind; where fierce growling dogs known as “designated officers” will roam everywhere; and where people we know will be torn to pieces after being accused of, and forced to confess, to shocking crimes.

I cannot in all good conscience, and in the absence of any discernable presence of a willingness of the administration to cede political space; to share; to engage; to include; and to understand the plight, suffering, and the hopelessness of hundreds of thousands, agree to the passage of this legislation.

The genesis of this Bill (and No. 18 of 2008) is said to lie in a certain CARICOM Heads of Government summit in Trinidad and Tobago in April, 2008. Following that high level summit, a menu of measures were agreed and these were meant to introduce short, medium, and long term measures to curb high levels of crime in the Region.

Some of the areas of concern included:

• Maritime and Airspace Cooperation & Sharing of Assets
• Intelligence & Information Sharing
• Rapid Deployment Units to be developed
• Drug Trafficking
• Murder
• Gang & Youth Related Violence
• Deportees

In the area of wiretapping it was agreed that “common wiretapping legislation is to be developed”.

The operative word here is “common”. What I believe that this house needs to be appraised of is that this bill was not generated by CARICOM or its agencies, or with the assistance of any other CARICOM nation.

The common approach intended after the April 2008 Summit of Heads of Government has been thrown aside and replaced with plain “commonness”- if I can, with your permission Mr. Speaker, adopt a Guyanese colloquialism.

As a result some Regionalists have grown quite weary and uncomfortable with Guyana’s evolving brand of diplomacy and approach to regional integration and cooperation.

What we are seeing now is just another recent display of brinkmanship and unilateralism by the Government of Guyana; acting at variance with CARICOM positions and policies.

The first such situation was of course the stance taken by Guyana vis-à-vis the European Partnership Agreement. Some say that after all the palavering we will have to eat humble pie in a few days time when we sign the agreement.

Here again Guyana is going out on a limb alone- now this time with legislation that clearly has serious implications for the constitutional rights and civil liberties of Guyanese and CARICOM citizens. What is the reason for the haste and speed?

Mr. Speaker I am advised by several government officials within the region, and verily believe, that considerations regarding the individual provisions within the constitutions of the various member states, and the CARICOM Charter on Civil Society are uppermost in their minds and that they will not proceed to pass wiretapping legislation unless and until there is widespread consultation and involvement of all stakeholders.

Article 146 (1) of the Guyana Constitution states clearly that:
“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to old opinions without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence.”

The CARICOM Charter of Civil Society to which Guyana is a party also recognizes a similar right in Article VIII:

“Every person shall have the right to to the enjoyment of freedom of expression including the right to:
(a) hold opinions and to receive and communicate ideas and inflrmation without interference and freely to send or receive communications by correspondence or other means;

(b) seek, distribute or disseminate to other persons and the public information, opinions, and ideas in any form whatever.”

We as a legislators have a fiduciary duty to uphold the law and constitution and rights enshrined therein. When we are going to abridge, curtail, or even expand those rights we have a duty to consult with the people, and when we do consult, we still should not interfere with rights except in rare cases and only for good and substantial reasons. We are not the law, only the guardians of it.

It would have been more palatable to the AFC if this bill was being introduced simultaneously in the various CARICOM territories so that we could gauge the mood of the people across the region and adapt and refine our legislative approach accordingly.

It is dangerous in our opinion for one CARICOM territory to state that it is operating under the aegis of the Regional body, and then arrogate to itself the right to abrogate the rights of citizens in one territory without there being a corresponding adjustment in all. This does not auger well for good neighbourly relations, and for the treatment of Guyanese abroad.

One appreciates that crime must be suppressed; one appreciates that modern technological methods must be employed to curb crime; one appreciates that there have to be mechanisms put in place, but these have to be carefully balanced against invading people’s private rights which must stand supreme over the whims and fancies of government.

This Mr. Speaker is the “social contract” concept first identified and developed by Thomas Hobbes in his 17th Century book “Leviathan”. The responsibility and relationship of, and between the citizen and the state has not changed since then.

Mr. Speaker to bolster the argument that the concerns of possible violations of rights of privacy are more than imaginary, I will refer to a few jurisdictions where wiretapping is ongoing and state some of the effects this practice is having.

UGANDA
In September, 2008, Amnesty International’s expressed concern that the Regulation of Communications Bill of Uganda could significantly hamper the general exercise of the right of freedom of expression and not just the rights of individuals whose communications are intercepted.

The Bill was deemed to be incompatible with international human rights standards especially the International Covenant on Civil and Political Rights.

ZIMBABWE
Amnesty International recently commented on Zimbabwe’s Interception of Communications Bill 2007 which it is contended will restrict freedom of expression.

“It would allow authorities to intercept both telecommunications and mail, raised fears that the government would use it to spy on the activities of human rights organizations and the political opposition.” Opposition spokesperson Arthur Mutambara called it the “final straw to the curtailment to the liberties of Zimbabweans.”

VENEZUELA
A BBC News report of June, 2008 is headlined “ Venezuela ’s new “spy” law draws protest.” Human rights activists and opposition members charge that the law is threatening their civil liberties.

One egregious aspect of the bill is that the requirement that officials cooperate and facilitate with the request to allow the wiretapping, in essence is turning all these persons, including judges, are being turned into spies.

USA
A June 9, 2008 article on the website ww.techdirt.com/articles has an article headlined “NSA Abused Wiretap Rights: Intercepted, Shared, Private Calls of Americans.” The constant abuse of the power by recording and sharing citizens private and intimate conversations and communications is set out.

A recent article appearing in the Los Angeles Times and written by Julian Sanchez in March, 2008 and entitled “Wiretapping’s True Danger” chronicles the widespread abuses of wiretapping powers by US federal and other officials- “for decades, intelligence analysts—and the presidents they served—have spied on the letters and phone conversations of union chiefs, civil rights leaders, journalists, antiwar activists, lobbyists, members of congress, Supreme Court justices.”

INDIA (www.privacyinternational.com)
“Wiretapping is regulated under the Telegraph Act of 1885. There have been numerous phone tap scandals in India , resulting in a 1996 decision by the Supreme Court which ruled that wiretaps are a “serious invasion of an individual’s privacy” The Supreme Court recognized the fact that the right of privacy is an integral part of the fundamental right to life enshrined under Article 21 of the Constitution.

The Court also laid out guidelines for wiretapping by the government. The guidelines define who can tap phones and under what circumstances. Only the Union Home Secretary, or his counterpart in the states, can issue an order for a tap.

The government is also required to show that the information sought cannot to be obtained through any other means. The Court mandated the development of a high-level committee to review the legality of each wiretap.

Tapped phone calls are not accepted as primary evidence in Indian courts. However, as is the case with most laws in India , there continues to be a gap between the law and its enforcement.

In March 2002 the Indian Parliament, in a rare joint session, passed the Prevention Of Terrorism Act (POTA) over the objections of several Opposition parties and in the face of considerable public criticism.

The National Human Rights Commission, an independent government entity, criticized the measure finding that the existing laws were sufficient to combat terrorism.

The law codifies the Prevention of Terrorism Ordinance that in turn builds on the repealed Terrorists And Disruptive Activities (Prevention) Act (TADA).

It gives law enforcement sweeping powers to arrest suspected terrorists, intercept communications, and curtail free expression. Critics argue that the experience shows that the power was often misused for political ends by authorities and that POTA does little to curb those excesses.

Chapter V of POTA deals with the interception of electronic communications, which also creates an audit mechanism that includes some provision for judicial review and parliamentary oversight; however, it remains to be seen how effective such mechanisms will be in practice.”

I have just traversed just a few of the countries that have this legislation and established how all of them have serious issues and concerns regarding the protection of human rights and civil liberties.

I have already indicated that we are concerned that if this the product of a CARICOM initiative then it should look like, smell like, and feel like a CARICOM product such as was must certainly the case when we dealt with legislation for Cricket World Cup in 2007.

That apart, we believe that the apparatus to monitor and implement the Act in the fullest is absent and thus there will be tremendous problems. By the apparatus itself we are warning that not only state actors, but also non-state actors have to be taken account of.

The case of the recording of the telephone conversations of two state actors, one of whom is a retired Commissioner of Police and the other a member of this Assembly, by a non-state actor, is well known.

It is an irrefutable fact that public confidence and trust in the security forces and state agencies is at an all time low. Who then is going to police the police to ensure that they will not allow themselves to be politically directed, and alternatively, not compromise their professionalism and integrity for filthy lucre by selling the confidential information of citizens.

In the context of Guyana and the history of political recrimination and targeting, I am prepared to say that this Bill shall, not may, be used against political opponents.

Rick Falkvinge, a political leader in Sweden in June of 2008 made a profound statement on wiretapping and intercepting of communication.

“Democracy is reliant on the transparency of power, not the transparency of citizens. All places where the opposite has been the case – where it has been impossible to examine the powers that be, while citizens lack any right to a private life – have been really nasty places to live.”

The Alliance For Change cannot support this bill as it offends the constitution of Guyana, offends the citizens’ right to privacy, and it will be used as a political tool to smother opposition and dissent.

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