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LETTER OF THE DAY - Constitutional trespass?

Published:Friday | February 25, 2011 | 12:00 AM


Under examination by his counsel, John Vassell, on Thursday, February 17, 2011, the minister of national security, Senator Dwight Nelson, advised the commission that under international law, an incoming administration is obliged to honour agreements entered into by the outgoing government. He further advised that legislation is to be drafted to incorporate the 'secret' memoranda of understanding (MOUs) into the Interception of Communications Act (ICA).

The amendment, he explained, would empower a judge in chambers to authorise the use of intercepted information in foreign courts against Jamaican citizens on extradition.

The proposal to amend the ICA to accommodate the MOUs appears to be not without contention, of which two observations are made.

In the 9/11 incident that led to the Americans holding men they captured in Afghanistan at Guantanamo Bay in Cuba, the explanation offered was the fear that the men could be set free or receive liberal punishment were they taken to the USA for trial. Volumes of new laws were created to deal with the cases offshore. Alas? There was one American citizen found among the men taken prisoner in Afghanistan. As an American citizen, it was argued that he was entitled to the protection afforded under the American constitution and could not be taken to Cuba nor held or tried there.

The Nelson proposal seems to have gone in the opposite direction, by proposing an amendment to existing laws, the effect of which, it would appear, would repeal Constitutional protection to make it possible to surrender a Jamaican citizen for trial in foreign courts, irrespective of whether the evidence was surreptitiously gathered and disseminated.

Extraterritorial jurisdiction

Empowering the judge in chambers to allow for intercepted information to be used against Jamaican citizens in foreign courts seems to be according extraterritorial jurisdiction. If so, is such an empowerment constitutional?

The ducking and dodging of questions on the MOUs should make every Jamaican uncomfortable. It has given one the impression that in the haste to cooperate and satisfy our "international partners in fighting transnational crimes", our Constitution has been infringed and some of our protection has been surrendered or whittled away. And can we expect reciprocation, particularly where others might consider Constitutional protection to be sacrosanct?

One hopes that Parliament and the Senate will keenly scrutinise the proposed amendment to the ICA with the view to ascertaining whether it is consistent with international practice and the provisions of our Constitution.

I am, etc.,


Ensom City, St Catherine