14 Nov 2010

A legal conundrum?

Sometimes I see articles online, in the Trinidad and Tobago newspapers. Then, remembering something I read, I would go back to my links only to find out the article has mysteriously disappeared, or find that the link has somehow been ‘disconnected’. I have since resorted to copying (or printing as PDF) the relevant articles that catch my attention.

Like this editorial from Today’s Express:

As the country watched in fascination, former prime minister Patrick Manning showed signs of having been stung into replying to his successor's revelations about the telecommunications intercepts perpetrated for five years under his rule . Until Friday, Mr Manning, now just another MP, had been mostly silent in the House. It was unseemly of the 39-year parliamentary veteran to insist on an unentitled opportunity to reply, thereby earning the rebukes and an eventual ejection threat from the Speaker.

Evidently, Mr Manning felt targeted by Prime Minister Kamla Persad-Bissessar's revelations of indiscriminate monitoring of citizens' private conversations, conducted with his authorisation, implicit or explicit.

That he remains personally answerable was later confirmed by statements of former national security minister Martin Joseph. The Security Intelligence Agency (SIA) interception facility had not reported to him, Mr Joseph said, but to the Prime Minister.

Opposition Leader Keith Rowley who, with members of his present caucus, had also been SIA targets, disassociated himself and the PNM from the surveillance conducted in violation of privacy rights. Displaying a mature sense of responsibility, he endorsed Mrs Persad-Bissessar's revelations, and communicated support for the coming corrective legislation. Mr Manning thus stands singularly culpable for the abominable electronic listening-in on citizens as diverse as President Max Richards, an Olympic athlete, and a popular comic entertainer.

Electronic surveillance, potentially valuable in gathering intelligence for law enforcement and national security, entails a violation of citizens' privacy rights. As such it can only be justifiable in narrowly defined and regulated circumstances.

From democratic jurisdictions, in the Commonwealth and out, models of legislation and regulation for implementing programmes may be observed, adapted, and enacted for T&T's needs. Best practice in this regard prescribes obtaining a limited-scope warrant from a High Court judge persuaded of its necessity for the stated lawful purpose. Evidence derived in accordance with such procedure will be acceptable in court. Legislation had been drafted here as far back as 2007, but inexplicably never brought to Parliament. Candidly, in his Friday news conference, Mr Manning showed a high level tolerance for the now-revealed practice of wanton electronic intercepts outside the framework of any law. Describing his approach to government, he said: "We start a programme, and if the programme works well, you give it a legal complexion."

Applying that method to the SIA's widespread invasions of privacy, Mr Manning implicitly encouraged what could be the malicious targeting of persons for reasons other than their association with criminal or security threats. For that, history will record, he has paid a price, and may yet pay more.

Now, however, Parliament must lose no time in making it legally and operationally possible for advanced surveillance systems, long abused, to be effectively applied to the urgent purposes of criminal investigation, detection and prosecution.

Martin Joseph has thus confirmed that P**rick was the SOLE person the intelligence gathered was sent to. That does not mean that the agents involved are not culpable if it is found that illegal acts have indeed been committed. The burden of proof though is to show that there were illegal actions. Whether the DPP can make a case remains to be seen.

As I said before, this situation has a lot of serious repercussions to come… and I will be following it up.