‘Dangerous conclusion’

Attorney-at-law CHUKWUEMEKA Cameron has criticised a stance of the Supreme Court that members of parliament and public officials implicitly consent to the verification of their assets when they submit their statutory declarations, calling it a “dangerous conclusion”.

Cameron, a data privacy expert, said the reasoning put forward by Justice Chester Stamp in his ruling that financial institutions are obligated to furnish information is “dramatically and drastically erroneous”.

He said the danger in Stamp’s ruling is that any individual at the Integrity Commission not sitting as the director of investigation, after seeing a statutory declaration, can request information from financial institutions on the public official and, by extension, persons related, associated or known to that official.

“They can go to any accountant, any bank and say, ‘You know what, I just want to check whether or not this information is right. Give me all the information you have on this person. As a matter of fact, I know she knows this person, so give me all the information you have on ‘John’ as well,’” said Cameron.

He said the bank would be compelled to do so.

“When they get John’s information, they’re going to see his credit card and know that he went to a clinic, and that clinic is known for conducting abortions and that clinic is known for treating AIDS patients; they now have all of that information. Am I saying that the Integrity Commission should not be able to fight corruption which is rampant and destroying Jamaica? No. What I’m saying is that the law already gives them the tool to do so,” Cameron asserted.

FOLLOW RULE OF LAW

He said the bar for initiating an investigation is not high; and if there are questions around a statutory declaration, the Integrity Commission must follow the rule of law by going to the court under the same Integrity Commission Act and requesting a notice to compel institutions to provide the required information on the public officer.

Cameron said the court would then scrutinise the request from the commission and weigh whether the information of persons associated or related to the public officer is relevant to the Integrity Commission’s investigation.

He said, if granted, the public officer and associates would then have the ability to challenge the order granted by the court.

“But what is the situation now? All of the protections for the citizen, the same public officer whose information is being verified, John and all his associates are now subject to anybody just writing an arbitrary letter and saying, ‘Hey, give me all the information you have.’

“They have stripped the citizen of their right to privacy and the safeguards that are built in, not to infringe on or restrict or stymie the activities of the Integrity Commission, but to protect the citizen and avoid abuse and overreach,” said Cameron.

In a written judgment released last week, the Supreme Court ruled that Barita Investments Limited must comply with a request by the Integrity Commission for financial information on 151 current and former public officials.

The commission sought the court’s intervention in November 2021 after First Global Bank (FGB) and Barita refused to comply with a June 2021 request.

FGB agreed during the proceedings to comply and have since provided the information.

The commission’s director of information and complaints said he was seeking the information from them as part of his lawful duty to make enquiries to certify or determine the accuracy of information that the officials submitted in their statutory declarations of their income, assets and liabilities.

The two financial institutions had expressed deep concerns about the legality of the request and fears of breaching privacy and confidentiality agreements with their customers under the Banking Services Act.

However, Stamp ruled that “financial institutions are mandated to furnish upon request the information required by the commission to verify the statutory declarations”. It reaffirmed Section 7(2) of the Integrity Commission Act, which imposes a legal obligation on individuals and entities to cooperate with the Integrity Commission (IC) by complying with its information requests.

However, Cameron said the decision of the judge is “totally wrong” as it relates to his treatment of the right to privacy.

He said under the National Identification System Act, no third party can process personal data without the individual’s authorisation.

Acknowledging that no right is absolute, the attorney said the law is clear on the restriction of rights. He said this must be done in accordance with the law, it must be necessary, and must be proportionate.

Pointing to Stamp’s conclusion that public officers, by submitting statutory declarations, implicitly consent to the verification of their reported assets, Cameron rejected the argument, noting that consent must be voluntary.

He said public officials are compelled under the Integrity Commission Act to file statutory declarations.

“There can be no implied consent. If I don’t do that, there is a criminal offence for which people have been criminally charged and prosecuted successfully for,” he said.

Further, he said under the Data Protection Act, the concept of implied consent does not exist.

Cameron noted that consent must be written and explicit.

Cameron said if the judge is reliant on implicit consent, permission was not given to Barita to release information, but only to the commission to process that information. This does not extend to third parties, he argued.

“It is Barita who needed to get consent. So that question of the logic behind the judge’s reasoning that the right wasn’t restricted because there was consent, fails on every level,” he said.

“What the judge has effectively done; he has removed the protection of due process and the rule of law from all citizens. What this means now is that the police can go to any bank without a warrant and say, ‘Give me all the information you have on John.’ They’re not even investigating John. John filed a report, but because he voluntarily gave some information, they can now verify, not even investigate; just collect all the information on you because they have a duty.

“So any state agency can now rely on this duty to cooperate ... . We’re going down a very dangerous road and there’s nobody to stop it,” he said.

kimone.francis@gleanerjm.com