KINGSTON — A Bill amending the controversial Interception of Communications Act was passed in the Senate on Thursday (July 28).
Minister of National Security and Leader of Government Business, Senator Dwight Nelson, who piloted the Bill, noted that the amendment addressed the absence of extraterritorial application of the Act to facilitate the sharing of information with a foreign state, or agents of that foreign state.
"Section four of the Act allows and authorises the officer to make an application to a judge of the Supreme Court, in Chambers, for a warrant authorising the person named in the warrant to intercept communication, and for the disclosure of such communication to such persons and in such manner as maybe specified in the warrant," Senator Nelson said.
He added that the warrant must be necessary, inter alia, for the prevention or detection of any of the scheduled offences, where there are reasonable grounds for believing that such an offence has been, is being or is about to be committed.
"The judge having been satisfied of the reasons for interception, would issue a warrant allowing the party named in the warrant to intercept conversations of the suspected persons and use it for the purposes of conducting criminal investigations. The intercepted communication should only be in the custody of the authorised officer who made the application and persons named in the warrant," Senator Nelson explained.
"The judge shall also issue such directions, as he considers appropriate for the purposes of requiring the authorised officer to make such arrangements as necessary for ensuring that, the number of persons to whom any of that communication is disclosed is limited to the minimum that is necessary for the purposes of the investigations in relation to which the warrant was issued, or of any prosecution for an offence," he added.
Disclosure of the intercepted communication, however, can only occur where there exists, between Jamaica and such foreign governments, an agreement for mutual exchange of that kind of information, and when the Minister certifies that it is in the public interest that such disclosures be made.
The Bill also amends the Act to provide for extraterritorial jurisdiction, in respect of the offence of unauthorised disclosure of intercepted communications, set out in section 15 (2) of the Act. It will allow the Government to prosecute persons not in Jamaica, who disclose interceptions without permission.
Senator Mark Golding said that the Opposition did not accept the basic premise on which the Act was being amended by the Government.
"We do not regard the existing Act as being limited to local use of intercepted disclosures and, therefore, don't think that the Bill, in so far as it purports to seek to make provision for disclosures internationally in certain circumstances, was necessary," he said.
But, Senator Dorothy Lightbourne, former Attorney General and Minister of Justice, felt that the amendments were necessary.
"The Interception of Communications Act is a Jamaican Act and applies to Jamaica. As we all know, all legislation made in Jamaica, if it is intended to be extra-territorial it must say so specifically, otherwise all Acts pass in this Parliament which does not say so relates to Jamaica only," Senator Lightbourne said.
Opposition Senator K.D. Knight said that he had a difficulty with wording of the section of the Act which deals with disclosure of intercepted communication.
Section Four (1A) states that "where there exist between Jamaica and such foreign government an agreement for the mutual exchange of that kind of information and the Minister certifies that it is in the public interest that such disclosure be made."
Senator Knight said he had a difficulty with the words 'and the minister certifies'.
"You have a memorandum of understanding between the appropriate bodies signed by the appropriate persons, there is an agreement for the mutual exchange that exist. It has to be taken that the agreement for mutual exchange, having gone through all the procedures, is in accordance with Jamaican law. So I am saying to immerse the Minister may be a bad policy," Senator Knight said.
Senator Nelson said he would relay concerns raised by Senators to the Cabinet, and seek a response.
"And if at all, that response from the government is to further address the concerns by way of looking at the law again, then I certainly will convey to the Senate the government's decision," he said.
By Latonya Linton, JIS Reporter