The recent legislation being tabled before the House entitled the Data Protection Act. What’s really wrong with it? Must it be reviewed?
It is said that Section 33 of the legislation is unconstitutional because it mandates that the person whose home is searched/invaded by the Police (if and when anything substantive is found) is under a straight and strict obligation to surrender even more information to help the Police in their own Prosecution, while being questioned.
Yes, I am in full agreement that this aspect of the legislation is in direct contravention of the Grenada Constitution. However, one such law in similar contravention to the constitution is the Praedial Larceny Act which says that if one is found in possession of Praedial Produce and cannot/does not give the police a reasonable account of how he came in possession of the items.
There is an automatic strict liability that applies to the suspect, in that the law views him as guilty or culpable of the crime and he is ultimately charged for the suspected act based on the whimsical flimsiness of the facts.
I usually experience people getting convicted in the Magistrate’s Court on the premise that they couldn’t prove that they legitimately obtained the items/produce found in their possession.
In law, there is a premise that one is innocent until proven guilty. It is called the presumption of innocence whereby one is endowed with the notion that he is inherently innocent until otherwise proven guilty by a court of law.
When one is suspected of committing a crime or is charged for a crime the burden of proving anything (especially guilt) rests squarely upon the shoulder of the police or investigator and NOT upon the Accused/Person suspected involved in the commission of the alleged offence.
The section of law within the Praedial Larceny Act which has this similar effect/controversial caveat attached to it is entitled, Unlawful Possession of Praedial Produce/shortened title – “Unlawful Possession”.
If we are arguing the unconstitutionality of this piece of legislation, we also need to repeal this similar legal provision also found within the Praedial Larceny Act and other such Acts which mandates that a suspect must give the police a reasonable account of how he comes in possession of the alleged/suspected stolen items.
The constitution is regarded as Supreme Law and must be revered as such, in that, all other subsequent legislation must be subsumed/corroborate with its spirit and essence to guarantee the safeguards of fundamental rights and freedoms. Particularly, in this instance, the right to freedom of expression or to independently withhold information/expressions in one’s best interests.
Great America holds this similar constitutional clause in their own Constitution called “The 5th Amendment”. The police must notify you when suspected in the commission of a crime or offense in which he must inform you of your rights and he says to you:”You have a right to remain silent, anything you say and do may be used against you in a court of law”.
This caveat informs a suspect or accused that he doesn’t have to volunteer any information to the police unlike the legal clause being discussed now which mandates a suspect to volunteer information to his own legal ruin. This is completely in contravention not only to our Constitution but also to universal law and natural justice.
Thus, I say to this unhealthy and political tennis rocketing of this Bill, we being a classic example of hypocrites, are we being intellectually ignorant or are we just pleasing our own self-served interest.
Let’s show standards to be standards – be consistent – our children are looking on and learning from us. Let’s us Fix this disparity in our laws for the greater good!!!
I have personally heard Lawyers like Peter David and Derick Sylvester made very poignant and powerful submissions before Magistrates on behalf of their clients in respect of this legal discrepancy in law but up till today this matter remains legally irreconcilable to this date and here we are again.