Dear Editor,
Concern has been raised about the proposed Interception of Communications Bill, and it has been asserted that if the bill becomes law it would violate the constitutional rights of persons in The Bahamas; specifically the rights protected by article 23 of the Constitution. I do not share that view.
No right which is conferred by law, including constitutional rights, is absolute, nor can it be. In fact, article 23, paragraph 2 of the Constitution of The Bahamas specifically states that nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the article to the extent that the law in question makes provision which is reasonably required in the interest of defense, public safety, public order etc.; and to the extent that things done under the authority of the law are shown to be reasonably justified in a democratic society.
In addition to the foregoing, article 30 of the Constitution protects from challenge any law that was in force before the Constitution came into force. Although this provision in constitutions of other former English territories has been subject to a narrow construction by the Privy Council, the article remains of importance.
The Listening Devices Act, which is presently a part of our law, addresses essentially the same subject as the bill. As we know the bill proposes to repeal that act.
That legislation prohibits the use by any person of a listening device to hear, listen to or record a private conversation to which he is not a party. It further provides that the minister for national security or the commissioner of police, after consulting with the attorney general, as the case may be, may authorize the use of a listening device by a police officer for the purpose of conducting a criminal investigation. It is further provided that a person who uses a listening device in accordance with such authorization will not be guilty of an offense against the act. No doubt Parliament in enacting this provision considered that it is in the interest of national security for the police to be able to use listening devices to intercept and record communication between perpetrators of crimes. This legislation represents the law of The Bahamas as of today on the question of intercepting communication, and has been used in many cases over the 44 years of its existence to obtain evidence against persons charged with criminal offenses.
It is noted, however, that the Privy Council in a 2014 case opined that although the act is saved from challenge on the ground of violation of the Constitution by article 30 of the Constitution, in the present circumstances in the country a further element of independence may be required.
Under the bill the interception of a private communication without the consent of the parties would be an offense carrying a penalty of a fine of up to $50,000 or four years imprisonment. However, this bill provides for authorization of such interception to be given by way of a warrant issued by a judge of the Supreme Court. The application is heard by the judge without notice to the party affected for reasons which should be obvious.
I believe that the requirement of an application to a judge of the Supreme Court whose independence is presumed, provides that additional requirement of independence that their Lordships considered necessary.
So, what then are the duties of the applicant on an application of this kind - i.e., where no notice has been given to the person affected by the application?
First, the applicant has a duty to bring to the attention of the court every point that the other party may reasonably have raised in his favor and secondly the applicant must disclose every document and everything that could be considered to be favorable to the party affected by the application.
In my experience, over the past 40 years of practice and having heard such applications myself as a judge, the court is keenly aware that an application such as the one under discussion is being heard without affording the party affected the right to be heard and so it would require much more from the applicant than it would in the case of an application where both parties are present and/or represented.
Moreover, the applicant would, in the case of the proposed law, be required to establish a genuine case of activities justifying the intervention of the court. There is no room that I am able to see for an application that is based upon political consideration.
Personally, I am of the view that it is much better to have these matters considered by a judge of the Supreme Court than by a minister or a commissioner of police, with the greatest respect for the present officeholders.
In addition, once the warrant comes to the attention of the affected party, he or she may apply to have it set aside and to seek redress for any damages he or she may have sustained by its execution.
I am constrained to say, however, that I do have some concerns about section 3 (3) of the bill which provides that a police officer does not commit an offense if he believes that the interception of a person's communication is necessary for the purposes of an emergency, or the prevention of death or injury or any damage to a person's physical or mental health or of mitigating any injury or damage to a person's physical or mental health or in the interest of national security.
In light of the fact that the bill also makes provisions for an oral application to be made to the judge in cases of emergency, it appears to me that this provision is unnecessary and may lead to unwarranted intrusion by the police which may otherwise be a violation of the constitutional rights of persons.
In my humble opinion, however, on balance, if the bill in question becomes law it would enable the law enforcement authorities to obtain information that could be valuable to their domestic and international crime-fighting strategies, whilst not presenting any significant detriment to the enjoyment of the constitutional rights of people in this country.
Please accept my profound gratitude for affording me to use your valuable publication to share these views with the public.

- Thomas A.E. Evans, Q.C.

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