Hamid Ghany

Ac­cord­ing to At­tor­ney Gen­er­al Faris Al-Rawi: "We say specif­i­cal­ly that there is no right to pri­va­cy as some peo­ple al­leged ex­ists in this ju­ris­dic­tion, but which our courts do not recog­nise specif­i­cal­ly so. Our Con­sti­tu­tion does in sec­tion 4(c) recog­nise the right to pri­vate and fam­i­ly life. Our courts are re­plete with judg­ments that say that the right to pri­va­cy is not per se a right. Our com­mon law recog­nis­es a right which says that there is breach of con­fi­dence. Our eq­ui­table ju­ris­dic­tion has, most re­cent­ly, in cer­tain cas­es recog­nised an eq­ui­table ju­ris­dic­tion to the pro­tec­tion of cer­tain pri­va­cy is­sues, but the de­bate is still on­go­ing with re­spect to a right of pri­va­cy per se." (Hansard, Sen­ate, May 3, 2016, p 20)

This state­ment has start­ed a con­tro­ver­sy about whether or not there is any right to pri­va­cy in this coun­try.

As far as the Gov­ern­ment is con­cerned, there is none. How­ev­er, in­stead of seek­ing to rem­e­dy that de­bat­able la­cu­na in the law, the Gov­ern­ment drove a bull­doz­er through that space to amend the Strate­gic Ser­vices Agency Act with­out stop­ping to fix a sign­post for pri­va­cy along the way.

For­mer chief jus­tice Michael de la Bastide said the fol­low­ing in re­sponse to Al-Rawi:

"The Con­sti­tu­tion does pro­vide for a right to pri­va­cy, the ques­tion is how is that de­fined. What are its lim­its? How does it rec­on­cile with the right to free­dom of ex­pres­sion? Ob­vi­ous­ly there has to be some bal­ance...Re­spect for pri­vate life looks very much like re­spect for pri­va­cy and that is hard­ly dis­tin­guish­able from the right to pri­va­cy." (News­day, May 5, 2016).

Per­haps, these dif­fer­ences of opin­ion might more eas­i­ly be un­der­stood if there was some back­ground un­der­stand­ing to how the Con­sti­tu­tion has sec­tion 4(c) which reads as fol­lows:

"(c) the right of the in­di­vid­ual to re­spect for his pri­vate and fam­i­ly life."

The re­al­i­ty is that the in­de­pen­dent coun­tries of the Com­mon­wealth Caribbean, with the ex­cep­tion of T&T, adopt­ed the tem­plate of the Eu­ro­pean Con­ven­tion on Hu­man Rights 1950, while T&T de­vi­at­ed in its adop­tion of the Cana­di­an Bill of Rights 1960 tem­plate for the chap­ter on hu­man rights in its In­de­pen­dence Con­sti­tu­tion.

The Draft In­de­pen­dence Con­sti­tu­tion pub­lished in the Guardian on Feb­ru­ary 20, 1962, con­tained the fol­low­ing pro­vi­sions re­lat­ing to pri­va­cy at sec­tion 11(c):

"(c) re­spect for the pri­va­cy of his home and oth­er prop­er­ty...."

This draft word­ing would have been weak­er than what ob­tains now had it been re­tained.

The change emerged out of pro­pos­als ad­vanced by the Bar As­so­ci­a­tion of T&T at the Meet­ing of Com­men­ta­tors on the Draft Con­sti­tu­tion at Queen's Hall over the pe­ri­od April 25-27, 1962. The Pres­i­dent of the Bar As­so­ci­a­tion at that time, Mr (lat­er Sir) Hugh Wood­ing made a plea at the Queen's Hall Con­fer­ence for the adop­tion of the Cana­di­an Bill of Rights, suit­ably amend­ed, to re­place the mod­i­fied tem­plate of the Eu­ro­pean Con­ven­tion on Hu­man Rights that was in­clud­ed in the Draft In­de­pen­dence Con­sti­tu­tion.

Mr Wood­ing said, in­ter alia:

"We have adapt­ed things, amend­ed them, added cer­tain things, delet­ed cer­tain things, and in the same way we can take the Cana­di­an Bill of Rights and adapt them to suit us, and I do not see why we should be lim­it­ed to choos­ing the Cana­di­an Bill of Rights as it is or re­fus­ing to con­sid­er it al­to­geth­er. I put for­ward, on be­half of the Bar As­so­ci­a­tion, that it should be tak­en as a mod­el, and it should be used as a means where­by we can help to shape our think­ing in the mat­ter, mod­i­fy­ing it to the ex­tent that may be nec­es­sary, and re­mem­ber­ing al­so that this Cana­di­an Bill of Rights is some­thing which came in­to ex­is­tence in 1960 and forms no part of the Con­sti­tu­tion of Cana­da."

The pro­pos­als ad­vanced by Mr Wood­ing and the Bar As­so­ci­a­tion were con­sid­ered by the Cab­i­net, to­geth­er with oth­er pro­pos­als made at the meet­ing. The chair­man of the Queen's Hall Con­fer­ence made the fol­low­ing state­ment at the com­mence­ment of the pro­ceed­ings on Fri­day April 27, 1962:

"I am hap­py to be in a po­si­tion to in­form you, on the au­thor­i­ty of the Cab­i­net, that your writ­ten com­ments and your sug­ges­tions made in this hall have re­ceived pre­lim­i­nary con­sid­er­a­tion. Fur­ther de­tailed con­sid­er­a­tion will of course be giv­en to them but al­ready cer­tain de­ci­sions have been tak­en. These de­ci­sions are that at the Joint Se­lect Com­mit­tee to be­gin on Mon­day the Gov­ern­ment rep­re­sen­ta­tives will pro­pose :.....(c) the sub­sti­tu­tion for Chap­ter II of a Bill of Rights along the lines of the Cana­di­an Bill of Rights with ap­pro­pri­ate mod­i­fi­ca­tions in­clud­ing the in­tro­duc­tion of safe­guards. (Ap­plause)."

This ex­tract from the ver­ba­tim record of the Queen's Hall Con­fer­ence pro­vides an un­der­stand­ing of how T&T switched from the mod­i­fied tem­plate of the Eu­ro­pean Con­ven­tion on Hu­man Rights 1950 and adopt­ed the Cana­di­an Bill of Rights 1960 tem­plate for its bill of rights in 1962. That tem­plate was re­tained in 1976 when the coun­try be­came a re­pub­lic and it is from there that pri­va­cy can be de­bat­ed.