The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

FORMER Bahamas Bar Association President Elsworth Johnson yesterday joined activist calls for Bahamians to organise protests and public resistance to the recently tabled Interception of Communications Bill (ICB) 2017, which he called “dangerous” spying legislation.

Mr Johnson, who was ratified last week as the Free National Movement’s candidate for Yamacraw, questioned the level of public consultation on the bill, underscoring that it impacted deeply entrenched constitutional rights to privacy and as such should have been previewed by the legal community and civil society.

His call to protest was echoed by another FNM candidate, attorney and former Tribune columnist Adrian Gibson, and follows outrage levelled by outspoken QC Fred Smith, president of the Grand Bahama Human Rights Association (GBHRA).

The bill will allow the commissioner of police, or a person acting on his behalf, to obtain a warrant from a judge to intercept and examine a person’s communications from telecommunications operators, internet providers and postal services; providing for the “interception of all communications networks regardless of whether they are licensed as public or not” for a period of three months, unless renewed. The bill also states that the attorney general can make an application to a judge for such a warrant.

This would be done in the interest of “national security,” the bill notes.

The bill, tabled in Parliament on Wednesday night, would repeal the Listening Devices Act.

It has sparked renewed concerns over the status of the National Intelligence Agency (NIA), and the 2014 reports that the US National Security Agency (NSA) was monitoring mobile phone calls in the Bahamas.

Yesterday, Mr Johnson outlined major concerns over the timeliness of the bill considering the recent Supreme Court challenge over parliamentary privilege and the constitutional right to privacy; and also questioned the efficacy of debate over the bill, and the public’s capacity to fully digest it, given the upcoming general elections.

“Having regard to all of the stalling we had with the Freedom of Information Act, and now to see a bill that really affects some of those most precious rights that we hold dear to us, then the very institution that is set up by constitution to guard these rights (the Office of the Attorney General) is to be ex-parte without the say or concern of citizens,” Mr Johnson told The Tribune.

“This is frightening and to my mind it’s no more than a spying act. A bill of this import should have gone to the (Bahamas) Bar, the question is whether or not the Bahamas Bar Association, which has in it those experts in constitutional law, would have had an opportunity to look at it, also human rights lawyers, NGOs in community.”

Referring to the government’s lengthy consultation process over FOIA, Mr Johnson said: “When you say to the citizenry we want you to have an input, then you come some days later and put a bill forward like this one. Now I’m wondering whether or not this bill even emanated from the commissioner of police because we already have a listening device bill in which the (commissioner) is empowered by reasonable suspicion.”

He continued: “If we have terrorist concerns, and this seems only local, but do we have terrorists groups here? You cannot say that the commissioner of police is not already empowered by reasonable suspicion and what exists in the penal code. There is a sinister undercurrent about this bill.”

Protest

Mr Johnson expressed his concerns as a private citizen, but yesterday urged his party and all other opposition forces to take a public stance opposing the legislation. He also lamented that some 90 per cent of the population did not have the economic means to mount legal defense to an abuse of power.

“I’m calling on the Bar, on independent groups to mobilise themselves, there are experts that will freely give their opinions on it,” Mr Johnson said.

“Whether right or wrong there is a certain style and class of doing things, the election is in the next three months, what type of discussion can be had on this? It almost seems as if you trying to sneak this through. Who drafted this?

“The country at this very same point is concerned about persons unlawfully hacking into their information, they’re suspicious someone is listening. What the US has been doing is a conversation for another day but for the average citizen not to be allowed to have an input in this is really shocking, so close on a general election, so close to a case that just went through the Supreme Court,” Mr Johnson added.

In May 2014, it was revealed in an article posted on website Firstlook.org that the NSA was “secretly intercepting, recording and archiving” the audio of every cell phone conversation in the Bahamas.

Reportedly part of a series of documents leaked by NSA whistle-blower Edward Snowden, those documents also claimed that the majority of the phone calls were monitored shortly before the 2012 general election, during the Ingraham administration’s term in office.

As for the Supreme Court case, Mr Johnson was referring to the ruling by Justice Indra Charles in August last year, which stated that Marathon MP Jerome Fitzgerald infringed on constitutional rights when he tabled the private emails of Save The Bays in Parliament, and therefore could not be protected by parliamentary privilege. Mr Fitzgerald has appealed that ruling.

Mr Gibson was one of the litigators representing Save The Bays.

For his part, Mr Gibson questioned how the public could be guaranteed that the bill would not be used as a tool to intimidate and abuse political adversaries, investors, journalists, and ordinary citizens.

“The (bill) is an attempt on the part of the Christie administration to foist unconstitutional legislation upon you (the public) that would ultimately lead to stark breaches of your constitutional rights, all whilst cloaked in ‘national security’ mumbo-jumbo,” Mr Gibson said in a post on Facebook.

“We must resist the passage of such a bill.”

Mr Gibson questioned how the bill would engage with the Data Protection Act, underscoring that the country did not have an ombudsman, an independent official appointed to investigate complaints of maladministration, notably against public authorities.

“We have no independent director of public prosecutions (DPP),” Mr Gibson said, “we have no independent attorney general (AG); and we have no independent commissioner of police (COP). The offices of DPP, AG and COP are all political appointees and, over the years, have demonstrably answered to or been subject to personal agendas or the whims of their political masters in one form or another.”

He continued: “Could we really trust and believe that all interception warrants would be obtained in the public interest or the interest of justice? I certainly would not!”

The National Intelligence Agency, a PLP campaign pledge that was introduced in 2012 and headed by former RBDF Commodore Clifford “Butch” Scavella, still has no basis in law. The agency came under public scrutiny in 2014 when Official Opposition Leader Loretta Butler-Turner, then-FNM deputy leader, raised concerns over its legality. At that time, National Security Minister Dr Bernard Nottage said that the government plans to table the legislation by the end of the year. Dr Nottage denied that the agency was prying into the personal communications of Bahamians, stating that only criminals known to police are being monitored.