TRANSCRIPT OF THE FELIX-WILLIAMS CONVERSATION

 

 

 

 

 

            

 

 

There is no right to privacy known to the laws of Guyana

Dear Editor,
A recorded conversation believed to be between the Commissioner of Police, Mr. Winston Felix and PNCR Vice Chairman and Parliamentarian Mr. Basil Williams, was aired and published in several sections of the media. Because of its startling and disturbing content, this recorded conversation eventuated much public debate, concern and even outrage.

The Government's response was in the form of a statement, the content of which is simply baffling to the rational mind. One can only hope that a response of greater cognition shall be soon forthcoming.

The PNCR response was more expansive and it came in the form of a press conference. Like the Government, the PNCR refused to deal with the content of the conversation, but rather concentrated their energies and emphasis on its source and manner of acquisition. They contended, inter alia, that the taping of the conversation and its broadcast were ‘illegal', and that it constitutes an invasion of privacy, arguing with credulity that the conversation was a private conversation; as if that makes a difference!

The ‘illegality' of which the PNCR spoke was neither explained nor elaborated. One would have expected that the rule or principle of law that was allegedly breached or the offence which was allegedly committed would have been identified. Unfortunately this was not done. It was argued that the taping of the conversation and its broadcast constitute an invasion of privacy.
I respectfully submit that there is no right to privacy known to the laws of Guyana or even the common law of England from whence we received our laws. The following passage of great relevance appears in the well known and respected text, Gatley on Libel and Slander, 9th edition at page 514.

“There is no doubt that the English common law does not recognise a tort of invasion of privacy and does not therefore grant any direct action for such invasion”. The identical position obtains in Guyana.

In the English case Waynright and another -v-Home office (2004) 4 L. R. C. page 154, the House of Lords held inter alia that there was no common law tort of invasion of privacy. A similar position was arrived at by the House of Lords in Malone -v-Commission of Police [1979] 2 ALLER page 620 and by the Court of Appeal (United Kingdom) in Kaye -v- Robertson [1991] FSR 62. The issue of right to privacy arose in New Zealand, a common law jurisdiction like Guyana, in the case of Hosking et al -v- Runting et al 2004 2 LRC page 65, where a magazine wanted to publish the photographs of two infant children taken out in a public place without the parents' permission. The parents sued, claiming that the taking of the photographs and/or their publication without consent amounted to a breach of their children's right of privacy.

The High Court of New Zealand held that New Zealand law did not recognise a tortuous cause of action in privacy based on publication of photographs taken in a public place.

Based on the aforesaid authorities, it is clear that the right to privacy is not known to the common law and, as stated above, not known to the laws of Guyana. The argument in respect of the breach of a right to privacy is therefore woefully misconceived. It is clear that the matters contained in the recorded conversation are matters of high public interest; they raise issues which touch and concern the internal security of Guyana; and they bring into question the conduct of Guyana's premier law enforcement officer. It is respectfully submitted that this is information of which the public has a constitutional right to be apprised and which the media has commitment right and duty to disseminate.

In Hosking -v- Runting, (supra) the court made the following seminal observations:
“the importance of freedom of expression and the role of the media in a democratic society needs no emphasis. There is a strong public interest not only in the right to impart information, but also in the corresponding right of the public to receive it. Any limitations imposed upon freedom of expression, whether by statute or by development of the common law, should reflect established principles. If there was any right to privacy of the kind alleged, the court would have found it to be clearly overwhelmed by the right of freedom of expression.......”
I respectfully submit that, even if the law afforded a right to privacy in Guyana, having regard to the nature of the matters contained in the recorded conversation, and the status and standing of the persons allegedly engaged in that conversation, that right to privacy would have had to bend and bow to the constitutional right to free expression.

This has been submitted so that the lay public is not misled on vital matters of law.

Attorney-at-law Mohabir Anil Nandlall
(Kaieteur News, 03/23/ 06)

Did MP Trick "Voice Two"?

THE recently released recording of a private conversation between a Member of Parliament and Voice 2 raises some interesting legal questions which should engage the attention of legal scholars in our midst.
The questions are:
(i) Was the recording of the conversation per se illegal?
(ii) Did the contents reveal any act or conduct on the part of Voice 2 which can attract legal sanctions against him whether as Voice 2 or otherwise?
(iii) Could the contents of the conversation have been lawfully published?

It seems to have been generally assumed that the recording of the conversation was per se illegal. But up to now no one has identified any specific criminal offence or nominate tort.
Attorney-at-law, Mr Anil Nandalall, has contended that there is no nominate tort known to English Law as the invasion of privacy and has quoted authorities to support his contention. He, however, has conceded that privacy is protected to the extent that nominate torts such as trespass and defamation protect privacy. It may be that his contention is legally sound. The Constitution itself does not appear to contain any provision recognising any individual right to privacy. As such, one must look to the ordinary law.

There is no tort known to law as eavesdropping. If therefore one were to record the conversation between two persons in private, that cannot per se constitute a tort since there is no material distinction between eavesdropping by the use of one’s ears or another’s ears or eavesdropping by the use of a recording or other technological device.
Of course, if one were to clandestinely enter another’s premises without permission and install a recording device therein, the tort of trespass to immovable property would have been committed. However, if one were to eavesdrop on the conversation between two persons conversing on the telephone by the use of some device, it does appear that, without more, no tortuous act would have been committed.

The law is not that individuals can do nothing except that which the law permits. Rather the law is that individuals (except companies and public authorities) can do anything except that which the law forbids or restricts.
It is important that this distinction is appreciated for within lies the distinction between authoritarian and non-authoritarian legal systems. Guyana is governed by a non-authoritarian legal system which allows an individual to do anything except that which is prohibited by the law.

Eavesdropping, whether by the use of one’s or another’s ears or by some technological device, may not be socially acceptable but it is not illegal per se. It may be that some forms of socially unacceptable conduct not legally prohibited should be legally prohibited but the lawmakers should always remember that there is a sphere of social or individual conduct which is none of the law’s business.

For example, the use by Voice 2 of indecent language on his private conversation may be viewed as socially unacceptable but so long as he does not use such indecent language in a public place or within public hearing, he commits neither a criminal offence nor a tort against anyone. Again, to be discourteous is not illegal, yet it may be socially unacceptable. It is not every socially unacceptable conduct which should attract legal prohibition.
It is an erroneous legal assumption that the mere recording of the private telephone conversation between the MP and Voice 2 was illegal. Such reasoning confuses and equates the socially unacceptable with illegal.
It cannot be doubted that there was a serious security breach. But the fact of a serious security breach does not necessarily invoke illegality on the part of those who have breached it, especially when those who have breached it may not belong to the system which needs security. All it means is that the security measures were inadequate and can be breached from outside.

Any member of the public is legally free to breach the security system and expose its weakness so long as the means of doing so are not prohibited by law. He or she or they who has or have breached the security of the Guyana Police Force may have done a public good by exposing the breach so that remedial action within the security system can be realised and taken for its improvement.
It may not matter who has breached it. It matters that it can be breached. That it can be breached is not the fault of he, she, or they who has, or have, breached it. It is the fault of the security system itself.
At this juncture, it may well be claimed that Voice 2 himself was breaching the security of his own organisation by informing the MP of matters which he ought not to have divulged to him. His private relationship ought not to supercede his public duties. However, it may be that Voice 2 in the exercise of his discretion and wisdom saw no public harm in making certain disclosures to the particular MP. Was his discretion reasonably exercised? Was it prudent for him to have reposed so much confidence in the MP?
If there was no danger to the public security in the MP hearing what Voice 2 said, could there have been any danger to public security if an eavesdropper was hearing the very same things? Can a material distinction be drawn between the specific MP and an eavesdropper having regard to the contents of the conversation? Was it a security breach for an eavesdropper to have heard what Voice 2 was saying but no security breach for the MP to have heard the same things?

The second question is whether the contents of the conversation reveal anything said by Voice 2 which implicates him in any act or conduct, which could attract legal sanctions against him? Did Voice 2 himself reveal that he did any such act? Did Voice 2 by his own words admit that he had committed criminal offences such as misfeasance in public office and/or attempting to pervert the course of justice? Did Voice 2 by his own words reveal that he was incapable of performing his duties in a professional manner or was guilty of such misbehaviour that would provide constitutional grounds for removal from office?

These are matters of law and fact which are best left for discussion at some later time since they may or may not engage the attention of the courts or administrative tribunals.
Suffice it to say while illegally obtained evidence is in general admissible, the admission or statements of admission or confession against the maker depends on the means used to obtain the admission or confession. However, it does not appear that Voice 2 was coerced, threatened or induced in any way to make the statements he made or that he was tricked into making such statements.
Unless, of course, the MP tricked him. Even if he was tricked, the statements can still be admitted in evidence especially as the MP was not a State agent.

The third question is whether the private conversation between the MP and Voice 2 could have been lawfully published. Here we have two gentlemen holding public office discussing not their private and personal affairs but matters of pubic interest.
It is here that the distinction must be drawn between the law relating to privilege and the law relating to privacy. It does not appear that the law relating to privilege protects the confidentiality of their discussion. This is precisely why journalists are not protected from non-disclosure of their information privately obtained but a lawyer is protected from disclosing what his client privately revealed to him. One is privileged the other is not. The conversation between the MP and Voice 2 does not appear to attract the protection of the law of privilege in either the MP or Voice 2.

The law relating to privacy has to do with the subject matter of the discussion (whether private or public) rather than the occasion. Since the subject matters of the conversation were matters in which the public has an interest it is important that what relates to the public interest be revealed to the public.

The law relating to privacy simply does not prohibit the publication of information relating to matters of public welfare and concern. The law of privilege however, does provide such protection against publication in specified circumstances even if the subject matters are public affair matters. It does not appear that either the MP or Voice 2 can invoke the laws of privilege or privacy.

It may be that the recording, if edited was correctly edited for the purpose of the exclusion of personal and private matters to accord with the law relating to privacy. Voice 2 may be a subject of civil scrutiny which in itself is not per se unlawful.

Attorney-at-Law V.V. Puran
(Chronicle, 03/29/2006)

Articles 40 and 146 of the Constitution provide protection for some aspects of Privacy


Dear Editor,
Mr. Nandlall, Attorney-at-law has stated with authority in a recent issue of SN that the English Common Law, which is also Guyana's, includes no tort of Privacy. He cites cases and is very likely up to date with his subject. I prefer to be a fool rushing in where angels prefer not to go.

Let me disclaim at once any interest in any of the persons involved or their personal or political causes, if any, or for any offensive language used or recorded.
While the common law of Guyana, taken from England, may not provide for a tort of privacy, the issue of privacy has not always been ignored.
The Post and Telegraph legislation makes it an offence for an officer of the service to open a postal packet.

As Mr. Bulkan has pointed out, a guarantee of Privacy appeared in the Guyana constitution prior to Act 10 of 2003, when the provision was excluded in a constitutional amendment Bill. It had appeared on the omnibus provision Article 40, which Attorney-at-Law Mr Gibson always included in pleadings drafted for me as WPA plaintiff against abuses of the State. Article 40 with its privacy provision had survived the Constitutional Reform Process, according to Mr. Bulkan .It also seems that the oversight committee left it alone.

The writer invoked the constitutional guarantee of freedom of expression in defence of the TV station which first published the text of the phantom tape. The same article 146 lays down that individuals are guaranteed freedom from interference with their correspondence, and freedom to hold opinions and communicate them without interference. It then guarantees individuals freedom from interference with their correspondence.

These are intended not as guarantees to the state but against the State.
We are free to make assumptions about the identity of the persons whose voices are recorded.
To act legally on those assumptions a process will be required. Those who make assumptions of identity without reference to the legality of the taping may be seen as justifying the right of those with power of any kind to record the conversations of crooks, lovers, saints and business people, officials and use them conveniently. The question is whether the country or the government can consent to such a state of affairs. Will it not encourage those who consider themselves victimsed also to acquire even more powerful means of recording correspondence or information in the private area?

The comparison between the recent recording and the information on Mr Gajraj's phone calls is not an exact or fair comparison. In the ex-minister's case only the parties concerned showed knowledge of the content of the conversations.
Lastly, Mr Nandlall's informative letter failed to mention that the United Kingdom's Human Rights Act under pressure of the European Union, does include the right of privacy, and that a privacy law is being actively discussed there.

Eusi Kwayana
(Stabroek News, 04/01/06)

 

Outside factual Matrix

I WISH to reply to letter penned by Mr. Eusi Kwayana responding to a letter of mine published in the March 27, 2006 edition of Stabroek News.

Let me say emphatically that my letter was never intended to be an exhaustive exposition of every aspect of the law on privacy in Guyana and to whom I may have conveyed such impression, I profusely apologise.

My letter sought to elucidate the law in respect of a particular factual matrix, that is, the taping and broadcast of the now infamous recorded conversation.

Therefore the reference by Mr. Kwayana to the Post and Telegraph legislation which according to him, creates an offence for an officer of the service to open a postal packet, is wholly outside of the factual matrix under review and accordingly irrelevant.

Mr. Kwayana next refers to Article 40 of the Constitution, and sought to argue that the same has a “privacy provision”. I set out hereunder the relevant part of Article 40 of the Constitution of Guyana (2003).

40(a) Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, ignorance and want. That right includes the fundamental rights and freedoms of the individual.

It is clear that Article 40, neither expressly nor by implication makes any provision whatsoever in respect of privacy.

In any event, Article 40 was interpreted on more than one occasion by our Court of Appeal and found to be merely “declaratory, a mix of idealism, and aspirations, of statements of principle and of entitlements…” and therefore not enforceable: [See Kent Garment Factory Limited –v- Attorney-General (1991) 46 WIR 177 and Amerally and Bentham –v- Attorney-General (1978) 25 WIR 272.]

Mr. Kwayana further argues that Article 146 guarantees to persons freedom from interference with their correspondence.

I agree that Article 146 so provides. However, I respectfully submit that the term “correspondence” used thereof contemplates written and not oral communication. West’s Legal Thesaurus/Dictionary defines “correspondence” as “an interchange of written communication … letters, mails, dispatches, communiqués, bulletins …” Both the New Oxford Dictionary and the Webster’s New American Dictionary proffer similar definitions.

Additionally, Article 146, like every other fundamental right in the Constitution, protects the citizenry against the state, not one private individual against another. No one thus far has suggested that the state is implicated in the taping or broadcast of the recorded conversation.

So the arguments advanced in respect of Articles 146 are a non sequitur.

Finally, Mr. Kwayana points out that I did not mention that the convention for the Protection of Human Rights and Fundamentals Freedoms (United Kingdom) includes the right to privacy. I did not do so, simply because I wrote on the laws of Guyana. All references to English law in my letter were merely to put Guyana’s legal position in an historical perspective.

It may be apposite to mention that Article 154A of the Constitution (inserted only in 2003), seeks to incorporate a number of international treaties on Human Rights to which Guyana is a signatory. Some of these treaties provide for the right to privacy. But it is doubtful whether these treaties are enforceable in the courts of Guyana. In fact the said Article provides that persons must seek redress in respect of these treaties before a Human Rights Commission, which as far as I am aware has not been established.

Further, some of these very treaties outlaw the death penalty yet the death penalty remains the mandatory sanction imposable for murder and treason under the laws of Guyana.

Attorney-at-Law Mohabir Anil Nandalall
(Chronicle, 04/03/06)