Peter Espeut | The right to secrecy

For some time now I have been interested in what is called the “Right to Privacy”, and how it relates to the “Right to Know”.

For example, do I have the “right to know” that my child’s teacher is a convicted child molester, or does the “right to privacy” of the teacher demand that their sexual predatory habits be kept secret?

Do I have the “right to know” that the institution in which I save or invest my money is under investigation for financial irregularities, or does the “right to privacy” of the institution demand that their record be kept secret?

Do I have the “right to know” that the political candidate in my constituency is part owner of a lumber company involved in deforestation, or does the “right to privacy” of the politically exposed person demand that their business dealings be kept secret?

I note that in the past when LGBT activists have sought to get Jamaica’s “buggery law” declared unconstitutional, one of the claims they have made is that the state must get out of people’s bedrooms because they have a “right to privacy”.

Does this mean that persons have the right to do anything they wish as long as they do it in private?

Do persons have the right to commit a crime as long as they do it in private?

I accept that privacy means that individuals have a right to speak on the telephone or send emails without monitoring or surveillance; yet often the first thing that the police do when they arrest a suspect is to seize their cell phones and computers to search for incriminating evidence. The “right to privacy” cannot stretch to concealing incriminating evidence.

Imagine every fraudster and scammer hiding behind their “right to privacy” because they do what they do in the privacy of their bedrooms!

COVER OF ANONYMITY

Every week I write this column, some readers publish their comments on The Gleaner website under cover of anonymity. I guess they are asserting their right to privacy by making outlandish – sometimes abusive – statements without revealing their identities. Secrecy can encourage abuse and false accusations, but experience tells me that many also prefer to offer compliments anonymously.

It is generally accepted that no right is absolute, and that justice is to be found by balancing seemingly contradictory rights. I cannot insist on my rights and freedoms if they prejudice or compromise the rights and freedoms of others [see the Charter of Fundamental Rights and Freedoms in the Constitution of Jamaica, section 13(1)].

Constitutional rights may be legitimately negated; the right to liberty and freedom of movement is forfeited if a court sentences someone to jail time; the right to “protection from search of the person and property” is negated by a search warrant, or during a state of emergency. If my private property lies in the path of a proposed new highway, the state may expropriate my private land with whatever is on it, and may compensate me as they please; in Jamaica the right to private property is not absolute.

Some employers require that applicants for jobs submit a police record showing previous brushes with the law. No privacy here! And no charges of unjust discrimination if banks refuse to hire convicted (or suspected) fraudsters, or schools refuse to hire sex offenders. A demand for privacy cannot compromise the common good.

The opposite of privacy is transparency. Whereas privacy in personal matters may be appropriate in many situations, privacy in the sphere of public governance provides ample opportunity for malfeasance and corruption. Political parties may accept contributions from businessmen in return for contracts or policy decisions which favour their businesses (influence peddling). Businessmen may give politicians money in return for favours (bribery, graft). Secrecy assists corruption. Transparency will expose it.

TRICKY

What is tricky in maintaining the balance between transparency and privacy in public affairs is that the same persons who stand to gain from malfeasance and corruption are the same persons who make the laws to detect it, prosecute it, and prevent it – or make detection and prosecution difficult.

Corruption may more easily flourish where political contributions and the list of holders of government contracts are shrouded in secrecy. A serious commitment to transparency means political donations are declared and audited, the asset declarations of public officials are made public, and all government contracts and waivers are published.

What this allows is declared income to be compared with declared assets. When the declarations are made in secret there is always the possibility of hidden income and hidden assets. Public declarations allow more eyes to scrutinise for errors and omissions.

Sadly, in Jamaica neither the Jamaica Labour Party (JLP) nor the People’s National Party (PNP) is committed to this kind of transparency, and both have been accused of corruption over the years.

If assets are greater than income, then there is unexplained wealth which may or may not be evidence of corruption. Persons should be asked to account for the discrepancy. They can always refuse on the grounds that they may incriminate themselves; but then they should not be expected to keep their unexplained wealth.

Persons who make the decision to enter public life – to make public policy and spend public money – must expect that their “private” business dealings can no longer remain private. And this is how it is in modern democracies. Politicians cannot claim the right to own property without the voting public knowing about it. Public servants cannot claim the right to enter into a contract with the government without it being publicly known. Assets may be registered in the names of family and friends, or hidden in shell companies, but these must be publicly declared.

It seems to me that it is people who have things to hide that wish the broadest interpretation of the “right to privacy” – really the right to secrecy – even in public affairs.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com