Right To Privacy On Trial

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The decision to establish whether or not four banking institutions be compelled to make available transaction records of two of the nine public officials and international companies implicated into the Global Witness bribery allegation is expected to be delivered by Judge Boimah Kontoe of Criminal Court ‘A’ at the Temple of Justice on Monday, May 30.

Judge Kontoe made the disclosure yesterday immediately after hearing final legal arguments into the merit and demerit of a request of ‘Subpoena Duces Tecum’ (summon) asked for by government lawyers to be served on the banks.

Subpoena duces tecum is a court order requiring a witness to bring documents in their possession or under the control of the witness to a certain place at a certain time.

This subpoena must be served personally on the person subpoenaed. It is the common way to obtain potentially useful evidence, such as documents and business records, in the possession of a third party, a legal expert hinted the Daily Observer yesterday.

“Failure to respond to a subpoena duces tecum may subject the party served with the subpoena to punishment for contempt of court for disobeying a court order,” the expert added.

International Bank (Liberia) Limited, Ecobank Liberia Limited, Guaranty Trust Bank Liberia Limited and Global Bank Liberia Limited are those financial institutions expected to produce the bank statements of the accused that covered the period of January 1, 2010 to September 30,

2010, of which the legal team of Grand Cape Mount County Senator Varney Sherman of and former Grand Kru County Senator Cletus Wotorson, of claiming it violates the privacy rights of their clients.

Article 16 of the Liberian Constitution of 1986 requires that “No person shall be subjected to interference with his privacy of person, family, home or correspondence except by order of a court of competent jurisdiction.”

Article 11 (a) also provides that “All persons are born equally free and independent and have certain natural, inherent and inalienable rights, among which are the right of enjoying and defending life and liberty, of pursuing and maintaining and security of the person and of acquiring, possessing and protecting property, subject to such qualifications as provided for in this Constitution.”

The New Financial Institution Act of 1999, section 35(2) prevents unauthorized disclosure of personal information held by the Central Bank of Liberia (CBL) and other banking institutions, except by order of a court of competent jurisdiction.

It provides that “the Central Bank of Liberia (CBL) shall not, unless lawfully required to do so by law or court of law, reveal to any person information as to the affairs of any individual customer of a financial institution obtained in the exercise of its regulatory jurisdiction.”

Global Witness alleged in its report that over US$950,000 in bribes and other suspicious payments were made to top government officials by UK-based firm Sable Mining through its Liberian lawyer, Cllr. Varney Sherman, chairman of the ruling Unity Party.

At yesterday’s deliberation, packed with lawyers and spectators, Cllr. Sherman was represented by Cllr. Cyril Jones of the Jones and Jones Law Firm, Cllr. Musa Dean of the Dean and Associates Law Firm, and the Sherman and Sherman Law Firm, while former Senator Cletus

Wotorson was represented by Cllr. Gloria Scott, chairperson of the Constitution Review Committee (CRC) and former Chief Justice of the Supreme Court of Liberia.

The state was represented Cllr. Theophlius Gould, Montserrado County Attorney Cllr. Daku Mulbah, Cllr. Arthur Johnson and lawyers of the Ministry of Justice (MOJ).

In his argument, Cllr. Mulbah who is the lead prosecutor of the Global Witness allegations, told the gathering that the accused motion was based on two cardinal issues, which he stated as “whether or not somebody can be subpoenaed during criminal investigation.”

“Account holder must be notified before information of their accounts can be released before court of competent jurisdiction.”

“This issue has already been clearly pointed out in Article 16 of the Constitution. Secondly, when a crime is committed, criminal investigation in ongoing privacy seize to exits,” Cllr. Mulbah pointed. He continued, “When it comes to criminality, the general rule is suspended and the court order takes precedent.”

The lead prosecutor explained that in criminal or administrative investigation subpoena can be prayed (asked) for by an authorized government authority. “In that case, upon the service of a subpoena by a court based on request by an authorized government authority, the person subpoenaed, the banks, are to comply to make disclosure under exceptions with the general rules on privacy provisions.

“Accordingly, the privacy provision does not apply to prohibit disclosure in said instances as the privacy of the individual will become subordinate and secondary to the interest of the state,” the County Attorney said, adding, “ They failed to show which fundamental principle of law has been violated by the government.”

He argued that when a crime is committed or allegedly committed, the claim of confidentiality cannot be used to protect the commission of a crime.

“Banking institution information can only be released when lawfully required, that the request to the judge, the subsequent granting of same, the issuance of the writ and the service on the named banking institutions constitute lawful action,” he reminded his opponents.

He, however, wondered why should the accused not allow their bank statements to be revealed to the investigation, “when an allegation which points and establishes the probable cause for one to believe that a crime was committed and that the particular individuals and or institutions in the possession of the criminal agencies traceable to the accused should produce such instruments that certify the functional elements of potential criminal charges or crimes.”

According to him, there exists a probable cause. “It is that probable cause that the court is under the legal duty to issue the subpoena duces tecums and prayed for and contained in the request made by this court under the signature of the County Attorney.”

He claimed that the intent of the statute does not imply that confidentiality protection extends to cover criminality, and thereby asking the court to deny the accused request not to summon the banks.

Earlier in her argument, former Senator Wotorson’s lawyer, Cllr. Gloria Musu Scott, asked the court not to issue the writ on ground that it was done illegally and does not conform to Article 16 of the 1986 Constitution of Liberia.

According to her, the article prevents non interference with people privacy making specific reference to the accused bank statement, except by order of a court of competent jurisdiction.

But she argued that her client has no knowledge nor was he ever notified by the government about his bank making available his personal information regarding his financial status to the government.

“Mr. Wotorson was never been given due process of law as the article provides,” the former Chief Justice added.

She went on with her argument, “It is not the bank information that was subpoenaed; it is the people who are customers of the bank. So you can’t ask for their personal document without notifying them, and it is during trial that you can subpoena the records of the accused.”

“They are not on trial and there is no case or matter against them for which prosecution is asking the court to compel the bank to produce their bank statement. The practice is unlawful and we should not allow this to happen in this jurisdiction, because we would be setting a bad precedence,” Cllr. Scott told the court.

She claimed that the government would threaten the entire banking industry to ask them to produce confidential document of their customers, something, she alleged undermines the integrity of the court and violates the bank confidentiality of its customer’s personal documents.

“The action is like you are building a police state and create fear in the banking system which is grave to the survival of the country’s economy and it can make investors to flee the country,” Cllr. Scott said.

Before Cllr. Scott’s argument, Cllr. Sherman lawyers said that the confidentiality of any individual’s account at a bank and his transaction with a bank is a fundamental underlying basis for banking in Liberia and most parts of the world.

“The confidentiality of the accused accounts with those banks are so sacrosanct that the law provides that the Central Bank of Liberia (CBL) shall not, unless lawfully required to do so by law or court of law, reveal to any person information as to the affairs of any individual customer of a financial institution obtained in the exercise of its regulatory jurisdiction,” they said in the document.

According to them, each of the financial institutions mentioned in the subpoena has its own internal regulations and contract provision with their customers on the sanctity of confidentiality of the customer’s account.

“It seems therefore that this confidentiality obligation should not be set aside or violated by this Honorable Court unless good cause is shown, unless the account holder has the opportunity to object to the application to this court for disclosure of his account and transaction of his account,” those accused emphasized.

They argued the law provides that, “the CBL shall not publish any information which would disclose the affairs of any person who is a customer of a financial institution, unless the consent of such interested party has been obtained in writing.”

The Sherman lawyers therefore asked the court to deny the state request.

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