Gordon Robinson | The day privacy died

In today’s high octane political climate, bank accounts are a hot topic.

So, let’s look at The Integrity Commission Act (ICA):

“ 6(1) …the Functions of Commission shall be to

(a) investigate alleged or suspected acts of corruption and instances of non-compliance with the provisions of this Act;”

So, before IC can “investigate” anything, there must be “alleged or suspected” corruption. Either IC receives a complaint or something in Statutory Declarations (e.g. disparity between declared income and acquired assets) supports reasonable suspicion (arbitrary suspicion not allowed) of corruption.

If not, no “investigation” is legislatively authorised.

IC has a Director of Investigations (DI) and Director of Information (DINFO). Excuse me for expecting DINFO wouldn’t be “investigating”. That’s DI’s job.

DINFO receives, records and reads Statutory Declarations, complaints or information. He also can “make such enquiries as he considers necessary in order to certify or determine the accuracy of a statutory declaration.”

Again the foundation for any such enquiry must be EVIDENCE or credible information that Declarations are inaccurate. Surely DINFO can’t run around arbitrarily making “enquiries” without a basis for considering them “necessary”. Remember, if declarations disclose reason for corruption investigation that’s DI’s job. Why’s DINFO making “enquiries” about private bank accounts?

ICA provides:

“ 7(1) The Commission may…..work in co-operation with any person or body as it may deem appropriate.”

IC can co-operate with anybody. Kool. But must anybody, especially banks, co-operate with IC? If yes, to what extent?

“ 7(2) A person or body shall co-operate with the Commission in the exercise of the functions conferred on the Commission…..”

Ohhhhhkay. But co-operate HOW? The “person or body” may be restrained by Constitution, law or contract from breaching customers’ privacy.

“ 7(3) The Court may, on an application made by the Commission…., order any person or body to provide to the Commission any information or document which the Court deems necessary to assist the Commission in carrying out its functions under this Act.(my emphasis)”

There it is! Eeezie Peezie. If a “person or body” is restrained by privacy issues, IC must prove in court the information required is “necessary” based on reasonable suspicion or credible complaint. The Court can protect Declarants from arbitrary “enquiry” and unnecessary privacy breaches.

The Constitution specifies:

“ Parliament shall pass no law and no organ of the State shall take any action which abrogates, abridges or infringes those rights.”

Those rights include: “the right of everyone to (i) protection from search of the person and property; (ii) respect for and protection of private and family life, and privacy of the home; and (iii) protection of privacy of other property and of communication;”

So where does an IC factotum get off willy-nilly asking banks to verify accuracy of customers’ Statutory Declarations without evidence of probable inaccuracy? Why should banks “co-operate” without a court order?

But that’s exactly what a Judge told Barita (trying valiantly to maintain customer confidentiality) to do. In written reasons, Stamp J. found, during an impassioned pronouncement that read like a newspaper editorial:

“ [58].... It is a matter of public notoriety that corruption is endemic in Jamaica. Corrupt practices….are typically concealed necessitating robust mechanisms for detection and enforcement. Section 7(2) of the Act is designed…to enhance the [Commission’s] capacity to detect and expose corruption [by] parliamentarians and public officials by assessing whether such individuals are in possession or control of pecuniary resources or property disproportionate to their official emoluments and legitimate income....”

Why bother with evidence; public notoriety should suffice. IC mechanisms must be made robust and capacities enhanced regardless of limits specified in ICA or Constitution. Did IC lead evidence of disproportionate assets? Did it seek a court order pursuant to section 7(3)?

Nah, all IC needs do is ask!

“ [59]….s ection 7(2) of the Act must be interpreted to impose a duty upon persons and entities to co-operate with the Commission by complying with the requests for information. This obligation is imperative. Financial institutions are mandated to furnish upon request the information required by the Commission to verify the statutory declarations.”

Don’t just “co-operate”. When I say jump you say “how high?” Whatever happened to interpreting Statutes so they don’t contradict the Constitution unless there’s no option? Whither privacy?

Don McLean was grief stricken after a plane crash killed Buddy Holly; Richie Valens; J. P. “The Big Bopper” Richardson. He wrote, in American Pie:

And in the streets the children screamed

The lovers cried; the poets dreamed

But not a word was spoken;

The church bells all were broken

and the three men I admire most:

The Father, Son, and Holy Ghost

They caught the last train for the coast

The day the music died…

It’s like a son coming home as his father is taking his bedroom door off its hinges and asking “Dad what are you doing?”

Father: “We’ve updated our privacy policy.”

Peace and Love.

Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com