THIS column begs to differ with the editorial, “No man is (worth) an island” in last Thursday’s edition of the Observer regarding the constitutionality of the extradition of Christopher ‘Dudus’ Coke, who is wanted in America for alleged drug and gun-trafficking charges .The editorial took to task Prime Minister Bruce Golding for defending Coke’s constitutional rights and seems to play down the importance of the Jamaican Constitution to the life of every Jamaican. If one aspect of the Constitution is breached, it sets a bad precedent.

It appears that information relating to Coke’s alleged activities was forwarded to the US authorities after Coke’s telephone was illegally tapped by operatives of a secret multinational intelligence agency, and this information was used to support the extradition request. Responding to the 2010 International Narcotics Control Report issued by the US Department of State Bureau for International Narcotics and Law Enforcement Affairs, Golding told Parliament last Wednesday that one aspect of the request which seemed to have worried the government was the violation of the Interception of Communications Act. The Act makes strict provisions for the manner in which intercepted communications may be obtained and disclosed. The evidence supporting the extradition request violated those provisions, said Golding. This violation is a serious offence.

The Act shows that the proper procedure, which requires an authorised officer to apply ex parte (without the other side being present) to a judge in Chambers for a warrant to intercept information in the course of transmission by means of a public or private telecommunication network, was not followed.

Under this section of the Act the violation carries a maximum fine of $5 million or imprisonment of a term not exceeding five years, or to both such fine and imprisonment. The law further requires that for intercepted communication to be admissible in any criminal proceedings it must have been obtained, disclosed and used in accordance with the provisions of the Act. Golding said that this was not done and the action was highly irregular. Of course, the US Government is not saying how it got the information and this is a normal position.

The Act defines interception as the monitoring of transmissions made by wireless telegraphy to or from apparatus comprising a network. It also covers the monitoring or modification of, or interference with the network by means of which the communication is transmitted, so as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or recipient of the communication. Except as provided in the law, a person who intentionally intercepts a communication in the course of its transmission by means of a telecommunication network commits an offence and is liable, upon summary conviction in a Resident Magistrate’s Court, to imprisonment for a term not exceeding three years or to a fine not exceeding $3 million, or to both such fine and imprisonment.

The Act says, among other things, that an authorised officer shall not disclose any communications data obtained under the Act unless the minister responsible for national security directs such disclosure to a foreign government or agency of such government where there exists between Jamaica and such government an agreement for the mutual exchange of that kind of information and the minister considers it in the public interest that such disclosure be made. The minister of national security issued no such direction in the Coke case. What is more, extradition under the treaty must be in conformity with the laws of Jamaica and in this case the Interception of the Communications Act was breached.

So the Minister of Justice and Attorney General Senator Dorothy Lightbourne acted within the law in not signing the documents for the extradition of Coke. But one question is now being asked by some people: Since the matter is about Coke’s constitutional rights, shouldn’t the issue go before the Constitutional Court? This, of course, would mean that the minister would have to sign the document for extradition, the arrest of Coke and his trial in a Resident Magistrate’s Court. If ordered extradited, he could go to the Constitutional Court. The case is not yet concluded. The minister has requested information from the US Government, after which the matter will be further considered.

It should be pointed out that the editorial indicated that the matter should have been put to the test in the Jamaican courts.

The government has taken a great deal of flak locally over the Dudus Coke affair. Some of the flak is political. The truth is that some of the flak came from political quarters. Coke is the JLP’s “points man” for West Kingston which is the constituency of the prime minister and beyond, and if sent for a long stretch “up the river” in the USA this would be to the political disadvantage of the JLP. Of course, the law is not concerned about such matters. If the Interception of Communications Act is breached, then extradition cannot take place, for the Extradition Act says extradition must conform to the laws of the country.

The US Department of State was not careful, as it ought to be, in the preparation of its report on the efforts of the security forces and the Jamaican authorities in the fight against international drug trafficking and organised crime. It should have been more specific and less generic in its evaluation regarding these matters. Certainly, there are a few areas where more progress could have been made, but there are a large number of areas in which the struggle has been remarkably successful, some with the assistance of the US Government.

Nevertheless, the report provided the Minister of National Security Senator Dwight Nelson with the opportunity to give a comprehensive review of the achievements of the government’s programmes in an attempt to deal effectively with illicit drug production and trafficking and organised crime.