IN THE SENATE on Tuesday, Attorney General Faris Al-Rawi made a telling admission.
“It isn’t that we don’t have a right to privacy,” he told Independent Senator Paul Richards.
“What I explained was that it is a qualified right and that the Judiciary has recognised that and called for better legislation to deal with privacy.” Mere days before, Al-Rawi had made a jaw-dropping claim.
Far from saying there was a right to privacy – qualified or otherwise – the Attorney General told the country the right to privacy did not even exist as a right entrenched in our Constitution.
“There is no enshrined right that is being infringed,” Al-Rawi said, piloting debate on a Bill to widen the powers the Strategic Services Agency (SSA). “There is no right to privacy, as some people allege exists in this jurisdiction, but which our courts do not recognise.” He acknowledged Section 4 of the Constitution but said the courts were “replete with judgments that say the right to privacy is not, per se, a right.” An Attorney General is expected to have a basic grasp of the nation’s law. Yet the present post-holder has prevaricated, in a most alarming way, on a fundamental right. If there was any doubt about Al-Rawi’s words last week, the context made their meaning clear. He was seeking to rationalise the decision to effect far-ranging changes to the SSA by way of a simple-majority Bill. If the right to privacy did not exist, then there would be no need for a special majority.
Tuesday night the Bill passed.
The disappearing act over, the magician pulled the rabbit back out of the hat.
The Attorney General’s daring tightrope act over such a fundamental right does not bode well.
He is the Cabinet’s chief legal adviser.
Questions remain over his judgment in condoning and/or advising that the legislation be rushed through Parliament as is.
And rushed it was, judging from the failure to take on amendments at the committee stage.
It does not end there. The courts were “replete with judgments” on the matter of the nonright to privacy, the Attorney General said last week. Yet, late on Tuesday night, he produced only a single case in support: Therese Ho v Lendl Simmons.
However, in that case the right to privacy under the Constitution was not cited by the claimant.
Instead, the case was approached under common law.
No court has ruled.
Not only does Al-Rawi’s equivocation on the right to privacy bring him into question, but his refusal on Monday to be forthright about which Independent senators had attended the meeting he called on the Bill was ironic. Temporary Independent Senators Justin Junkere and Ian Roach may have faith in the State. Unfortunately, the Attorney General has demonstrated why we should not.
Since there is a right to privacy, as now belatedly acknowledged by the Cabinet’s chief legal adviser, the question is the scope of that right. The State is allowed to pass crime legislation infringing fundamental rights, provided such measures are “justifiable in a society that has a proper respect for the rights and freedoms of the individual.” Further, according to Section 13 of the Constitution, such legislation must expressly state that it is at odds with these rights. The supreme law also requires such a law be passed with a special majority.
The Strategic Services Agency (Amendment) Bill 2016 was passed with a simple majority.
It is, therefore, destined to be challenged in the courts. Until such time, it will take effect once Cabinet sends it to President’s House. But will President Anthony Carmona sign it?
Published on Thursday 12th May.