Dear Editor,
When the PPP/C cabinet approved Guyana’s first-ever Interception of Communications Bill in mid-2008 and had me pilot it on October 17, 2008 through its various stages in the National Assembly as Bill No.19 of 2008, this was done with the clear understanding that the bill was aimed at criminalizing the use of telecommunications. The incoming law was to be a crime fighting, law enforcement and national security tool.
The schedule of offences listed under the Act are: murder, treason, terrorism, trafficking in persons, kidnapping and abduction and money laundering, production, supplying or dealing in narcotic drugs and psychotropic substances, trafficking in narcotic drugs and psychotropic substances, importation or exportation of any firearm or ammunition, manufacturer of or dealing in firearms or ammunition, illegal possession of a weapon, firearm or ammunition, arson and aiding and abetting or conspiring to commit any of the offences mentioned.
The intended legislation was among a slew of other crime fighting and national security measures, that had its origins in recommendations from CARICOM’s Implementation Agency for Crime and Security (IMPACS) approved by Heads at a Special Meeting of CARICOM Heads of State and Government, held in Port-of-Spain in April, 2008.
During the debate on the Bill, the then parliamentary opposition, led by Opposition leader Mr. Robert Corbin, his parliamentary colleagues, Basil Williams and the late Deborah Backer were amongst its fiercest critics. Raphael Trotman and Khemraj Ramjattan from the AFC were no exceptions.
The Opposition’s arguments were fundamentally political. They claimed that the Bill was ‘very suspect,’ that it will be ‘abused’ by the Police, that sensitive information intercepted will be ‘leaked’ and that the bill placed ‘onerous obligations’ on the private telephone companies.
The arguments advanced were all demolished by PPP/C MP’s. With time, the criticisms have been proven spurious.
Debunking the claim about ‘onerous obligations’ on the telephone companies, the point was made that prior consultations on a draft of the Bill were held with GT&T and Digicel who had pledged their cooperation with government to ensure enforceability.
At the end of the debate, members of the PNCR -1G led by Mr. Corbin, and the AFC who were present, except for Aubrey Norton, walked out of the Chamber.
The PNCR-1G plus AFC’s opposition to the Bill on October 17, 2008 cast a long shadow over the security sector.
Eleven years later, on May 15, 2019 the spotlight turned to where the real interests of the APNU+AFC were in respect to intercept of communications.
Much earlier, the efficacy of legal intercept was demonstrated in a case involving two taxi drivers, charged and presently before the Court for possession of over 237 pounds of cocaine in pepper sauce.
The CANU prosecutor told the Court that they are in possession of telephone recordings during which the accused boasted about CANU being unable to detect the drugs in the pepper sauce.
At no time was it envisaged by CARICOM Heads or by IMPACS that the Bill could be amended to ‘move the Judges out of the way’ in order to cater for business and corporate interests although call centres were already established and very prominent in almost every CARICOM member state at that time.
Why crime-fighting, law enforcement and national security legislation had to be amended to accommodate five additional exceptions or, in other words, ‘to provide protection’ for the interests of private telecommunications enterprises must have flummoxed operatives in the intelligence community at the Military Intelligence Department of the GDF, Special Branch of the GPF and the Regional Intelligence Fusion Centre in Barbados.
The answer to this question lies in the arguments advanced in favour of the amendments to the Interception of Communications Act by the Minister of Public Telecommunications in the National Assembly on May 15, 2019.
In the contest between two competing interests, private telecommunication companies, on the one hand, would press host governments for greater exceptions while law enforcement on the other, would favour greater restrictions for public safety, national security and defence purposes. Which way the pendulum swings depends on whether prior commitments were made to private companies and the risks that could flow by reneging on those commitments.
In an effort to strike a balance between law enforcement and business interests as regards its interception of communications exceptions policy, the coalition government came down in favour of its “international clients” though those clients had merely “expressed an interest to invest in Guyana.”
In the circumstances, it would not be unreasonable to conclude that the amendments to the principal Act was an act of desperation on the part of government to shore up its tattered investment image.
Leaving that aside, on Sunday April 28, 2019, the Sunday Chronicle carried a headline that read; ‘Bill tabled to widen exceptions in communication interception.’
And on May 16, 2019 Stabroek News carried a headline screaming, ‘Bill passed to allow call centres to record calls.’
On that same day, Guyana Chronicle carried the erroneous headline stating; ‘Call centres stand to benefit as House amends Inception (sic!) of Communications Act.’
Suffice it to say that the Chronicle report under the said headline was poor in content and misleading in many respects. How that got past that day’s Chronicle Editor is anyone’s guess.
Stabroek News’ edition of May 16, 2019 reported Minister of Public Telecommunications, Catherine Hughes’s presentation in the House more accurately.
The Minister was quoted as saying inter alia, that the Bill has “small amendments” but with “big impacts” and that by coming to the House with the amendments a “quantum leap” will occur that will make call centres operating in Guyana “better.”
Based on what was reported, the genesis of Hughes’ amendments seemed to flow from successful lobbying by “international clients that have expressed an interest in investing in Guyana” but that one of the “gaps” is “the recognition that the primary Act does not allow for the recording of conversations.”
That was the sore point that had to be corrected.
Here again, it would appear that had it not been for the apparent lobbying by the unknown ‘international clients’ who had pointed government to ‘gaps in the primary Act,’ Hughes probably, would not have tabled the amendments in the National Assembly.
Moreover, we are at a loss to know who are these ‘international clients’ that “expressed an interest in investing in Guyana?”
Powerful interests must have been at work to inveigle government, merely by an “expression of interest” to amend a progressive crime fighting piece of legislation, and in this way, free up the supposed ‘international clients’ from a principal Act that resides in the judiciary.
The public have a right to know who are these “international clients’ that will be granted the generous exceptions since there exists the potential to exploit and to take advantage of employees especially in circumstances where they are not unionized and more particularly, where there are no applicable labour laws.
The constitutionality of the Bill was an issue of concern to the then parliamentary opposition. Their focus of attention was Article 146(1) and (2) of the Constitution. In the ensuing debate, Anil Nandlall advised the House that the Bill did appear to interfere with the Rights of persons to receive information, a Right guaranteed by the Constitution, but he pointed out that; “The provision of the Constitution guarantees the Right for Freedom of Expression permitting the enactment of a Bill of this type because of the stated reasons; for public order, for public safety and for defense.”
The APNU+AFC coalition administration’s Interception of Communications (Amendment) Bill 2019, has effectively watered down a progressive crime prevention, law enforcement and national security piece of legislation. And while the Act appears to serve the interests of the intelligence community, in effect it is now made to serve the larger interest of business and corporate interests.
Further, the Minister needs to explain the level of consent inherent in the five exceptions, will they be one party, two party or all party exemptions?
Section 3 (2) of the principal Act states:
‘A person does not commit an offence under this section if –
(a) the communication is intercepted in obedience to a warrant issued by a Judge under section 6;
(b) the communication is not intercepted in obedience to a warrant issued by a Judge under Section 6 but on the authority of a designated officer in the case of a national emergency or in responding to a case where approval for a warrant is impracticable having regard to the urgency of the case.’
Effectively, the Bill just passed whittles down the crime fighting and law enforcement side of the principal Act.
Moreover, when as reported in (SN 16.5.19) that the Minister said “the primary Act does not allow for recording of conversations…” one is left to wonder whether she meant recording of communications by private companies or recording of communications period.
The principal Act does allow for recording of conversations but only by operatives in the intelligence community with the approval of a Judge.
Yours faithfully,
Clement J. Rohee
