September 20, 2020

Wiretapping creates decision dilemma

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Opposition continues to mount to government’s wiretapping law as lawyers and legislators question its disregard for the judiciary, instead vesting sole authority in the hands of the Governor.

“The Governor is not a lawyer. A judge is the only one with the training for this, who can decide if there is a prima facie case. This is quite wrong,” said Ramon Alberga, OBE, lawyer, past president of the Law Society, and editor of the Law Reports.

“I am not in favour of this at all. My view is that when it comes to an important thing like wiretaps, it should be assigned to a justice of the Grand Court,” he said.

Regulations allowing taps to be placed “in circumstances coming within the scope of international mutual assistance agreements” or “to safeguard the economic well-being of the islands”, were “far too broad”, Mr Alberga said.

“Economic problems should be left to the Monetary Authority,“ he said, while the law does not allow appeals of gubernatorial decisions.

“This is totally wrong. I am opposed to leaving this to the Governor and the Commissioner of Police,” Mr Alberga said, referring to the rule that “only the Commissioner of Police can request a warrant to intercept communications”.

The law mandates a five-member, Cabinet-appointed oversight committee, chaired by one of Cayman’s near-200 Justices of the Peace, and comprising a retired judge, magistrate or lawyer; the Chief Officer of the Portfolio of Internal and External Affairs; a government ICT specialist; and a technical expert from an off-island law-enforcement agency.

Legislators, Mr Alberga said, “should reconstitute this, fight it, repeal the old law and have a new one.”

Mr Alberga’s recommendation refers to the original Information and Communications Technology Authority Bill, moved by Linford Pierson in 2002 and unanimously approved by the Legislative Assembly in October 2003, including an amendment to place a high court judge in authority rather than the Governor.

“We wanted to vest authority in a judge,” said Alden McLaughlin, leader of the People’s Progressive Movement, who, as an MLA, approved the amended bill with Leader of Government Business McKeeva Bush.

“It was one of the few times we were in accord,” Mr McLaughlin told iNews.

The Hansard for the session quotes Mr McLaughlin saying wiretaps should have “the benefit of judicial scrutiny”.

Like all local legislation, the act was referred to London, which instructed Governor Bruce Dinwiddie to refuse assent.

“The Governor sent it back to the LA,” Mr McLaughlin said. London demanded repeal of the amendment, restoring the Governor’s authority

“I spoke about it and said the government was very uncomfortable with that, and we sent it back to the Governor saying we wouldn’t change it.”

The Hansard for the session quotes Mr McLaughlin saying wiretaps should have “the benefit of judicial scrutiny”.

“We do not repose any trust in the judiciousness of that exercise by Her Majesty’s Government, of whom His Excellency the Governor is our representative,” he said.

“We are not prepared to amend these Bills,” he said, addressing similar clauses in the concurrent Terrorism Law. London’s “insistence on the removal is ominous, or appears to us to be ominous,” he said.

Dissenting, Mr Bush said no changes should be made and the bill was returned without amendment.

Deputy Governor Donovan Ebanks said Monday’s regulations simply give effect to the 2003 law.

“That war was fought eight years ago and the regulations we are sending out now have to be consistent with the law, they cannot supersede the law,” he said. “At present the Governor is the only one authorised to permit this.”

At the Office of the Governor, spokesman Steve Moore said designation of the executive to oversee wiretaps, as opposed to a judge, “has been debated, and I’m sure there is a good reason”, for the clause, he said. “He recognises his duty and that it is the right thing to do.”

Deputy Governor Ebanks said anyone so inclined was welcome to change the law, but anticipated few difficulties with the current bill.

“Oh, yeah, yeah, any government, any premier can take it up and look to change it,” he said, “but, no, I don’t foresee any problems with this.

“I was hoping to mitigate all the publicity this has gotten, but 95%, percent of people would like to be informed.”

Deputy Governor Donovan Ebanks said Monday’s regulations simply give effect to the 2003 law.

Not everyone has been, however. President of the Cayman Islands Law Society Charles Jennings, formerly managing partner of Maples and Calder, said he had learned of the bill only several days after its Monday publication.

“I was surprised we were not consulted beforehand because I am confident my members would have had a great deal to say about it,” Mr Jennings said.

“I’m not sure I can think of another jurisdiction in which the power to approve phone tapping is left exclusively in the hands of the executive,” he said. “It would be all right, even if it were in the hands of one man, as long as there were judicial oversight.

“I sometimes think the Law Society is sent draft legislation only when it is anticipated that we will agree with it.”

North Side MLA Ezzard Miller declined to comment in detail, saying only that “I have some concerns about it, which I have expressed to the authorities”, while even former high court justice Priya Levers weighed in after winning a wiretapping case last week in Jamaica’s Supreme Court.

“It goes against the grain just to start with, and I will have to read carefully before making a judgement, but to place the decision in the hands of one man was risky.she said, echoing Mr McLaughlin’s earlier remarks with a gentle swipe at former Cayman Islands Governor Stuart Jack.

“I just don’t see why the lives of so many people should be in the hands of one man,” she said.

 

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