One of the more striking things about the public discourse that accompanied the amendment to the Strategic Services Agency (SSA) Act was the absence of enlightened, independent civil society advocacy on some key, associated human rights issues.
With few exceptions - in specific areas such as press freedom, the rights of women and children, the disabled and advocacy on behalf of the LGBT community - this country has not had a tradition of credible, sustained endeavour in the area of civil and political rights and even less so when it comes to economic, social and cultural rights.
It has thus been easy to oppose the death penalty one day and call for the popping of necks the following week – usually after a general election when statuses change. Immigration regulations are discussed in the absence of a human rights perspective.
Our Equal Opportunity Act has also long entrenched systemic discrimination against people based on “sexual orientation”, yet there has been no groundswell of political or public opinion opposed to the clear anomaly.
Walking the advocacy road to press freedom and freedom of expression has not earned some of us any new friends and I have heard the snarls and the howls on both sides of the street along the way.
Enter now an amended SSA Act and the usual partisan posturing that belies the fact that there has been no philosophical distinction between the chief combatants on the dispensability of rights in the face of what are expressed by the political elite as public interest/security concerns.
It was therefore easy for attorney general Faris Al-Rawi to suggest that there exists legislative room for manoeuvre on the question of the right to privacy in May 2016 when, in November 2010 as an Opposition senator, he asserted that “unlike other jurisdictions, and in particular I speak to England where there is an unwritten Constitution—there are conventions which they observe—we have a clear, defined, enshrined right which can definitely be put to mean a right to privacy.”
The debate at the time was over the Interception of Communications Act – in many respects the law that ought to have invoked much more critical scrutiny than it did but instead remained relatively unchallenged in the public domain as a result of eventual bipartisan support. That the SSA amendment extends areas of coverage definitely needed to be vigorously flagged, but the challenge could have actually been engaged at a much more fundamental level both inside and outside of parliament in 2010 and even before.
The implicit terms of engagement between the state and private individuals that facilitated the well-known pre-2010 abuses predated the startling post-election revelations but without serious consideration by anyone. Whose phone is tapped, in the midst of intimate exchanges of one kind or the other, is an old, old joke we have all cracked.
Instead, and yet again, we left the debate up to the least qualified to address the spirit, as opposed to the letter, of the law – politicians and lawyers.
The intersection of the right to privacy and other rights and obligations appears not to have forcefully entered the debate either in 2010 or 2016. There is also a strong connection between freedom of expression and the right to privacy and a debate to be engaged on the extent to which a requirement of transparency and privacy rights may collide.
The ‘Panama Papers’ revelations have forcefully raised the latter question and invoked the absolutely relevant concern of whether laws and conventions on such matters are not in fact skewed to comply with prevailing social status and power arrangements – in which event the issue of privacy, as opposed to the requirements of transparency, is a supremely political debate to be openly engaged.
No, people will not and should not trust you on this. The administration of 2010-2015 derived much of its standing on the issue both from the fact that some key operatives had been victimised in the past and that it was somehow more trustworthy to legislate on the subject – though some essential elements of the ensuing law now form the basis of its concerns in 2016 because someone else is now made to administrate them.
To what extent, some might ask, does the threat that one’s privacy might be breached not impose a chilling effect on one’s freedom to express oneself? In the face of intense scrutiny, George Orwell’s Winston Smith, in the book 1984, is forced to keep an illicit diary even as the Party and Big Brother maintain a high level of official opacity.
In one memorable passage, Winston concedes that “if you want to keep a secret you must also hide it from yourself.”
The Orwellian scenario paints a rather complete picture of the privacy problématique which mature nations have found it fit to comprehensively explore. Some otherwise exemplary countries have certainly not got it right but this is a question for all of us. Not only for the Bar Association here but for civil society organisations, civic-minded citizens in all spheres and political parties from whose ranks emerge people who will at some stage be empowered to consider actions related to the interplay of important rights.