LETTER OF THE DAY - Protecting state secrets
Published:Monday | February 7, 2011 | 12:00 AM
THE EDITOR, Sir:
"There can be no secret anywhere in Jamaica that allows the breach of the citizen's constitutional rights." - Frank Phipps, QC, Manatt COE, February 2, 2011
The four memoranda of understanding (MOUs) were classified as secret documents purportedly executed by the then minister of national security and justice, Dr Peter Phillips, and security agencies of the US and UK governments.
So 'SECRET' was the classification that they could not be located in the Ministry of Foreign Affairs, not seen by those in the Office of the Director of Public Prosecutions and, apparently, not located in the Ministry of Justice.
There is no evidence, to date, that the mystery memoranda were discussed by the Cabinet or brought to the Parliament of Jamaica.
The plot thickened when it was revealed that the representatives of the US government purported to rely on such memoranda but refused the GOJ request for copies.
It now turns out that the attorney representing the JLP had appeared to have had in his brief a copy of the memoranda and had, in fact, offered to supply a copy to fellow counsel from as early as January 17, 2011.
From the manner and detailed reference to the 'so-called' mystery memoranda by the attorney representing PM Golding, it is reasonable to infer that he, too, may have been supplied with such information in his brief.
The unauthorised possession of national security documents that have been coded 'SECRET' is not protected by claims of attorney privilege. Moreover, the quotation above is a political statement, laced probably with moral-philosophical justification, but devoid of any legal basis.
Indeed, we may be left to wonder if the forces that facilitated the unauthorised possession of classified documents to the attorney (to wit: the mystery MOUs) are not dissimilar to the ones that facilitated the unauthorised possession of classified documents to the fugitive (to wit: the extradition documents).
no justification for possession
No civilised society can be run on the basis of any one man - irrespective of his legal acumen - deciding that national security classification of any document can be ignored because, in his personal opinion, such document "allows the breach of the citizen's constitutional rights".
That does not provide a legal justification for his unauthorised possession or the sharing of such with elements in the media by facilitating forces. The recipients should be made to account for how they got illegal possession or unauthorised access to such highly classified national security documents.
In a world increasingly characterised by organised transnational criminal activity (and the concomitant widespread public corruption), respect for the classification of highly sensitive security documents is a necessity (even if not deemed desirable by some).
I am, etc.,
Paul Ashley, PhD
Attorney-at-Law
Kingston 10