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Shh!! It's a secret MOU!
J’cans cautioned against revealing pact with US, UK
BY ERICA VIRTUE Observer writer virtuee@jamaicaobserver.com
Monday, February 07, 2011
JAMAICANs have been warned of the dangers of revealing the contents of the 'secret' memoranda of understanding (MOUs) with the United States and the United Kingdom to fight transnational crimes.
Several attorneys including outspoken commentator, Dr Paul Ashley, constitutional lawyer, Dr Lloyd Barnett and Bert Samuels, urged caution, with Ashley saying disclosure could damage Jamaica's foreign relations with international partners.
"In the Constitution, if you examine it closely, there is a provision dealing with national security," said Ashley. "No right is absolute. It is always subjected to national security, defence, and matters of good order and public health.
"Therefore, the disclosure has, and will have, adverse repercussions for Jamaica's future relations in matters of national security with our international partners," Ashley told the Observer.
He said the confidentiality of the agreement was fundamental to national security relations in light of the drastic security changes around the world after the September 11, 2001 terror attacks on the United States.
Ashley was responding to claims that the MOUs, signed in 2004 under the previous People's National party (PNP) administration, breach Jamaicans' right to privacy as they give local and foreign law enforcement agencies the right to intercept all landline and cellphone conversations on Cable and Wireless (now LIME) and Digicel switches, in an effort to gather intelligence in the fight against drug trafficking and organised crime.
The MOUs were effected under a programme code-named Operation ANTHEM and became the basis of the United States' refusal to provide additional information to the Jamaican Government, other than those contained in the original affidavits, during their stand-off over the legality of the request for the extradition of Christopher 'Dudus' Coke.
The Jamaican Government's refusal to sign the extradition warrant for Coke strained relations between Kingston and Washington and led to calls for Golding to resign as prime minister.
Those calls intensified after news emerged that Golding had sanctioned the hiring of US law firm Manatt, Phelps & Phillips to lobby the US Government on the extradition matter. Golding, however, insisted that the law firm was hired by the JLP and not the Government.
He eventually yielded to intense public pressure and signed the extradition warrant, resulting in skirmishes between the security forces and gunmen loyal to Coke, the former Tivoli gardens strongman, in May last year.
The MOUs have been admitted into evidence in the Commission of Enquiry into the Government's handling of the extradition request, which is currently underway at the Jamaica Conference Centre, downtown Kingston.
While some pundits argue that the agreement sold out Jamaicans' right to privacy, Ashley said high level confidentiality was the mode in which agreements are made.
"Can you imagine if the contents of these are widely publicised and get in the hands of the very people you are targeting?" he asked. "I cannot have in my possession the operational details of Up Park Camp. It is classified. Simple."
He added: "You have to watch the precedent you are unwittingly setting. No state can run efficiently with (only) local national security. There has to be co-operation. National security and defence are special categories that do not subject themselves to widespread disclosure of documents. You draw the line there."
Ashley also cautioned that any person who was not authorised and was found in possession of the documents risked imprisonment.
Originally, the commissioners took a decision not to admit the MOUs into evidence because of their sensitive nature. But attorney Hugh Small QC, who is representing Golding, objected, saying the people of Jamaica should know what was done on their behalf, while Frank Phipps, who is representing the JLP, said there could be "no secret anywhere in Jamaica that allows the breach of the citizens' constitutional rights".
For his part, Dr Barnett, the lawyer for Justice Minister Dorothy Lightbourne, cautioned the commission, noting that some measure of responsibility must be applied.
"If it is marked secret, from my recollections from being a civil servant and a member of the Attorney General's Department that is one of the highest levels of classification of a government document. I think one has to approach the matter with some carefulness, to say the least," Dr Barnett advised.
Wading in, Attorney Bert Samuels said governance and national security matters were paramount and the public might not always have access to agreements between nations because of their sensitive nature. However, he was clear that this had to be balanced against the constitutional rights of Jamaicans.
"The right to privacy, for example, and in this instance the invasion of privacy by wiretap, the constitution sets out very clearly that it is only a law made by our Parliament that would make an exception to these provisions," he told the Observer.
He said existing wiretapping legislation set out how the right to privacy may be invaded by the State and it does not anticipate any variation, noting that citizens of the US and Jamaica were not experiencing the same rights and freedoms, as the US had made it clear that illegally obtained evidence could not be used against their citizens.
Samuels was of the belief that: "We are operating in a weird and uneven-handed situation," which is discriminatory in application.
He said it was extremely worrisome that conversations he may have had with clients were not protected under lawyer/client privilege.
Read more: http://www.jamaicaobserver.com/news/...#ixzz1DHvggsfl
Shh!! It's a secret MOU!
J’cans cautioned against revealing pact with US, UK
BY ERICA VIRTUE Observer writer virtuee@jamaicaobserver.com
Monday, February 07, 2011
JAMAICANs have been warned of the dangers of revealing the contents of the 'secret' memoranda of understanding (MOUs) with the United States and the United Kingdom to fight transnational crimes.
Several attorneys including outspoken commentator, Dr Paul Ashley, constitutional lawyer, Dr Lloyd Barnett and Bert Samuels, urged caution, with Ashley saying disclosure could damage Jamaica's foreign relations with international partners.
"In the Constitution, if you examine it closely, there is a provision dealing with national security," said Ashley. "No right is absolute. It is always subjected to national security, defence, and matters of good order and public health.
"Therefore, the disclosure has, and will have, adverse repercussions for Jamaica's future relations in matters of national security with our international partners," Ashley told the Observer.
He said the confidentiality of the agreement was fundamental to national security relations in light of the drastic security changes around the world after the September 11, 2001 terror attacks on the United States.
Ashley was responding to claims that the MOUs, signed in 2004 under the previous People's National party (PNP) administration, breach Jamaicans' right to privacy as they give local and foreign law enforcement agencies the right to intercept all landline and cellphone conversations on Cable and Wireless (now LIME) and Digicel switches, in an effort to gather intelligence in the fight against drug trafficking and organised crime.
The MOUs were effected under a programme code-named Operation ANTHEM and became the basis of the United States' refusal to provide additional information to the Jamaican Government, other than those contained in the original affidavits, during their stand-off over the legality of the request for the extradition of Christopher 'Dudus' Coke.
The Jamaican Government's refusal to sign the extradition warrant for Coke strained relations between Kingston and Washington and led to calls for Golding to resign as prime minister.
Those calls intensified after news emerged that Golding had sanctioned the hiring of US law firm Manatt, Phelps & Phillips to lobby the US Government on the extradition matter. Golding, however, insisted that the law firm was hired by the JLP and not the Government.
He eventually yielded to intense public pressure and signed the extradition warrant, resulting in skirmishes between the security forces and gunmen loyal to Coke, the former Tivoli gardens strongman, in May last year.
The MOUs have been admitted into evidence in the Commission of Enquiry into the Government's handling of the extradition request, which is currently underway at the Jamaica Conference Centre, downtown Kingston.
While some pundits argue that the agreement sold out Jamaicans' right to privacy, Ashley said high level confidentiality was the mode in which agreements are made.
"Can you imagine if the contents of these are widely publicised and get in the hands of the very people you are targeting?" he asked. "I cannot have in my possession the operational details of Up Park Camp. It is classified. Simple."
He added: "You have to watch the precedent you are unwittingly setting. No state can run efficiently with (only) local national security. There has to be co-operation. National security and defence are special categories that do not subject themselves to widespread disclosure of documents. You draw the line there."
Ashley also cautioned that any person who was not authorised and was found in possession of the documents risked imprisonment.
Originally, the commissioners took a decision not to admit the MOUs into evidence because of their sensitive nature. But attorney Hugh Small QC, who is representing Golding, objected, saying the people of Jamaica should know what was done on their behalf, while Frank Phipps, who is representing the JLP, said there could be "no secret anywhere in Jamaica that allows the breach of the citizens' constitutional rights".
For his part, Dr Barnett, the lawyer for Justice Minister Dorothy Lightbourne, cautioned the commission, noting that some measure of responsibility must be applied.
"If it is marked secret, from my recollections from being a civil servant and a member of the Attorney General's Department that is one of the highest levels of classification of a government document. I think one has to approach the matter with some carefulness, to say the least," Dr Barnett advised.
Wading in, Attorney Bert Samuels said governance and national security matters were paramount and the public might not always have access to agreements between nations because of their sensitive nature. However, he was clear that this had to be balanced against the constitutional rights of Jamaicans.
"The right to privacy, for example, and in this instance the invasion of privacy by wiretap, the constitution sets out very clearly that it is only a law made by our Parliament that would make an exception to these provisions," he told the Observer.
He said existing wiretapping legislation set out how the right to privacy may be invaded by the State and it does not anticipate any variation, noting that citizens of the US and Jamaica were not experiencing the same rights and freedoms, as the US had made it clear that illegally obtained evidence could not be used against their citizens.
Samuels was of the belief that: "We are operating in a weird and uneven-handed situation," which is discriminatory in application.
He said it was extremely worrisome that conversations he may have had with clients were not protected under lawyer/client privilege.
Read more: http://www.jamaicaobserver.com/news/...#ixzz1DHvggsfl
