Editorial | Publish MOUs, court rulings
It would be in the interest of transparency, and the advancement and people’s access to justiciable rights, for the Government to publish the Supreme Court decision that, according to Horace Chang, held a 2004 eavesdropping agreement between Jamaica and the United States to be unconstitutional.
The administration should, at the same time, also release the replacement memorandum of understanding (MOU) between Washington and Kingston, which Dr Chang said was signed a fortnight ago.
Arguments that such actions would automatically compromise national security, or undermine existing, or potential, investigations being conducted in secret, are unconvincing. The published documents can be appropriately redacted to exclude sensitive information, which, in both instances, ought to be relatively little.
This matter has arisen because of this newspaper’s recent reporting of a claim that the old MOU, which was at the heart of the 2010 Christopher Coke extradition saga, had all but lapsed, as Jamaica pulled closer to Israel for its digital surveillance requirements. While the Holness administration has been less than transparent about its arrangement with the Israelis, it strongly rejected that its pacts with the United States and other Western partners were broken.
In fact, said Dr Chang, the United States and Jamaica signed a revised information-sharing pact only on October 23, having being forced to do so because of a court ruling last year on the original MOU, which was agreed to by the current opposition leader when he was the national security minister in the Patterson administration in the first half of the 2000s.
That document was secret. Its presence came to light during the Emile George commission of inquiry into the Golding government’s nine-month delay in acting on the US request for the extradition of the Tivoli Gardens crime boss Coke, including using the lobbying firm, Manatt, Phelps and Phillips, to intercede with the Americans.
Coke, who subsequently admitted to drug running and other crimes in the American court, was legally wiretapped under Jamaica’s Interception of Communications Act. But the much-criticised George Report, which slightly slapped the administration on the wrist for the handling of the extradition, held, as the Government had done, that Coke’s constitutional right to privacy and freedom of communication was violated when Jamaica shared information from the wiretaps with the Americans, on the basis of the MOU.
In its report, the George Inquiry argued that neither Section 11 of the law, which sets the directions a judge may give when ordering a wiretap, nor the judge’s order itself in the Coke case, “permitted disclosure to a foreign agency or government and we think that the section, and therefore the orders, must be construed as not granting a discretion to the authorised persons to make disclosures for foreign agencies or authorities”.
While this remained a contested point, the Golding administration, in 2011, amended the law that “a warrant may authorise that the intercepted communication may be disclosed … to a foreign government, or any agency of such government”. In the face of that amendment, what specifically the court may have found to be unconstitutional about the MOUs, and precisely how this was expressed, is highly relevant.
Further, such a ruling would be an important precedent, which would be important to other cases in which similar circumstances apply. And assuming that the finding wasn’t, or won’t be overturned at appeal, the value of the case may be lost to persons who may wish to challenge convictions in American courts on the basis of the old MOUs, and who may wish to seek constitutional redress.
Moreover, given the controversy over the 2004 documents, the new agreements should be subject to review for Jamaicans to satisfy themselves of the unlikelihood of these, too, being unconstitutional. People knowing the basis of how the countries will cooperate, if all is above board, compromises nothing.