PRESS RELEASE

THE CUSTOMS (CONTROL AND AMENDMENT) ACT 1999

by: Victor Cuffy

At the House of Assembly Meeting of November 7,2002, Section 89 of the Customs (Control and Management) Act No. 14 of 1999 was amended by repealing Sub-section (1) and replacing it with a new Sub-section.

THE AMENDMENT

The new Sub-section states that where a Customs Officer has reasonable ground to believe that anything that is liable to be forfeited by any Customs Enactment, is being kept concealed in any building or other place, or any offence has been committed against any enactment the Comptroller of Customs may in writing authorize him in compelling circumstances, to-

“enter that building or place at any time, and search for seize, detain or remove anything which appears to him to be liable to forfeiture”.

This amendment also gives power to a Customs Officer to –

“Break open any door, window or container and force and remove any other impediment or obstruction”…and “search for and remove any invoice, bill or Laden or any other document…relating to any assigned matter.”

The new law goes on to say that the Customs Officer must not enter premises at night unless he is accompanied by a police officer who is authorized to do so by a police officer above the rank of Sergeant or an officer in charge of a police station.

COMMENT ON THE AMENDMENT

The amendment is too wide in its scope. It allows a Customs Officer to enter a building or place at anytime and gives power to breakdown any door or window or container or any other impediment by force. This allows a Customs Officer the type of power which can be seriously abused. There are no precautionary controls to protect the privacy and constitutional rights of the citizen.

A junior Customs Officer can do what he likes when he comes to search your home once he has been given the right to search by the Comptroller of Customs. There are no safeguards against abuse.

The amendment mentions that the Comptroller may authorize a Customs Officer to go and search a home, or any building in “compelling circumstances”. But, there is no definition of what would amount to “compelling circumstances” in the Legislation. Searches and seizure of this nature should not be allowed to be undertaken by Agents of the Executive branch of Government, such as the Comptroller of Customs. Judicial authorization through the issuance of a warrant by a Judicial Officer should be the basis on which such matters should proceed.

RIGHT TO PRIVACY

In the case of FUNKE V FRANCE (1993) 16 EHRR 297 the European Court of Human Rights found that powers given to Customs Authorities were too wide and were incompatible with Article 8 of the European Convention on Human Rights. Section 8 states as follows:

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the Exercise of this right except such as “is in accordance with the law and is necessary in a democratic society”.

Section 7 of our Vincentian Constitution of 1979 also gives protection from arbitrary search and entry and says that any process used regarding searches and seizures of one’s person or property or entry into one’s premises must be shown “to be reasonably justifiable in a democratic society”.

The question here is: Are the wide and all embracing powers given to the Comptroller of Customs by the recent amendment to the Customs (Control and Management) Act of 1999, justifiable in this country which we consider to be a democratic society? The reader is invited to judge for himself.

NO PROCEDURAL SAFEGUARDS

In another European Court of Human Rights case – NIEMIETZ V GERMANY (1993) 16 EHRR 97 at paragraph 29, the Munich District Court issued a warrant to search a lawyer’s office in an effort to identify a third person who had written an insulting letter to a Judge. The Court ruled that even though the warrant was Judicially Authorised, it breached the privacy rights of the lawyer because it was drawn up in too wide terms in that it ordered a search and seizure of “documents” without any limitation. It also noted that there were no procedural safeguards such as the presence of an independent observer at the search.

The amendment of the Customs law in question in SVG says nothing of having any independent observer as a procedural safeguard in such searches.

My opinion is that the amendment to the Customs (Control and Management) Act of 1999 which has passed through all its stages in the House of Assembly in one sitting and is now awaiting the Governor General’s Assent does not meet the constitutional and human rights standard expressed in our Constitution, because of its arbitrary and wide power, given to an agent of the Executive in the person of the Comptroller of Customs.

Victor Cuffy