Major blow to NIDS

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THE Andrew Holness-led Government was yesterday dealt a severe legal blow and will have to revisit the National Identification and Registration Act, commonly called the NIDS Bill, after the Constitutional Court ruled it unconstitutional.

In an unprecedented live audio stream of the ruling, Chief Justice Bryan Sykes declared the court had decided that the legislation had no legal effect and is to be removed from the statutes of Jamaica. The matter was heard October 22-24 last year by justices Sykes, David Batts, and Lisa Palmer Hamilton.

Jamaica House, in a response shortly after the ruling, said the NIDS Project Executing Unit was aware that the outcome of the court case brought by the Opposition “may influence the implementation of the NIDS”, and had placed on hold the components of the solution that could be impacted by the judgement.

“The Government is respectful of the court’s ruling and will spend some time carefully reviewing the judgement, after which a more fulsome response will be forthcoming,” Jamaica House said, while placing on record its sincere gratitude to the full court panel for their considered judgement.

In the meantime, Leader of the Opposition People’s National Party (PNP) Dr Peter Phillips declared the ruling a resounding victory for the Opposition.

However, PNP General Secretary Julian Robinson, who had filed a suit in the Supreme Court last year challenging the constitutionality of several provisions of the Bill, said it was the people and Constitution of Jamaica that are the victors.

“The decision today is a vindication of the value of the Jamaica Constitution and its Charter on Fundamental Rights and Freedoms and the right that it gives to every Jamaican to ensure that the laws which Parliament enacts are consistent with the Charter of Rights,” Robinson said in a release.

“The decision clarifies for us all, especially for us as Parliamentarians, our duty to make sure the laws we enact are consistent with the Constitution. A less hurried approach to this legislation would have avoided this process.”

Meanwhile, Phillips said the PNP felt vindicated by the ruling, and argued that the court validated the position of the party that provisions of the National Identification and Registration Act infringe on the rights of the Jamaican people, including the right to privacy and access to public service.

“When we brought the action there were many persons who thought it was ill-advised, and politically risky…today our position has been vindicated and, despite the risk, we have been able to feel content that our position was a correct one at the outset,” Dr Phillips said at a press conference called shortly after the judgement was handed down.

The Opposition, said Dr Phillips, had made every attempt to convince the Government to reconsider, but said the Administration had “resisted every attempt”, resulting in bad legislation being rushed through the Houses of Parliament.

He said the PNP would be studying the judgement carefully to guide the Opposition in considering any future legislation for a national identification system.

The Opposition, said Dr Phillips, supports the need for a national identification system, but such a system should not trample on citizens’ democratic rights.

Not only did the court find the provisions unconstitutional, but it also ruled that the remaining provisions could not stand on their own because they are tied to the unlawful provisions.

The PNP, through Robinson as the claimant, had requested several declarations from the court on the basis that certain provisions of the Act infringe particular rights outlined in the Constitution of Jamaica, including the right to security of the person, the right to equality before the law, the right to privacy, the right to a passport, the right to protection of property rights, and the right to due process.

Chief Justice Sykes said the panel of judges had found that the arguments advanced by the State had not justified the place of the provisions in question in a free and democratic society.

In the 309-page written judgement, the panel declared that the Bill is “unconstitutional, null and void insofar as it is intended to make compulsory the taking of biometric and other data so as to provide a national identification number and card for every citizen and resident of Jamaica. The involuntary nature of the policy infringes guaranteed constitutional rights. Furthermore, the statute seeks to prevent access to services both public and private, or to make possible the denial of such services, to citizens who fail to obtain the said national identification”.

The judges said there was also no or no adequate mechanism to prevent the utilisation of the data obtained from people for other purposes such as the creation of profiles.

“The danger of a ‘big brother state’ or, as the Supreme Court of India called it, a ‘surveillance state’ is real. The wide-ranging provisions for information sharing and verification, as well as identity confirmation by public and private sector add to that reality,” the judgement said.

“We are mindful of the fact that the attorney general submitted that what we have here in the National Identification and Registration Act was not all that is to be… [but] the point is, we can’t predict the future, and so what is the National Identification and Registration Act, in its present form, we were of the view that the protections, such as they are in the statute, were inadequate and therefore a violation of the right to privacy,” Justice Sykes stated.

“By different routes we ended up at the same destination, which was that having declared some of the provisions in violation of the charter, we were of the view that what was left could not stand on two bases – one [that] it was so bound up with the other provisions that there is no way it could survive by itself, and the other route was that what was left would still be in violation of the Constitution. So on either bases we were of the view that what was left could not stand by itself, and so we are of the view that the National Identification Act is to be declared null and void and of no legal effect,” added the chief justice.

Meanwhile, Opposition Senator Donna Scott-Mottley noted that the Joint Select Committee which was convened to deliberate on the Data Protection Act, which is supposed to be a precursor to the NIDS Bill, has not met since last April. The committee was chaired by Dr Andrew Wheatley, who resigned as technology minister last July.

“There has been no attempt to reconvene the Joint Select Committee on data protection [and] by the time we get around to it, it will be outdated,” she said.

NIDS was intended to capture and store personal identity information for Jamaicans locally and in the diaspora, and be the primary source for identity verification. The Government said this would result in improved governance and management of social, economic and security programmes.

The initial design and development of NIDS is funded by the Inter-American Development Bank, through the Korean Poverty Reduction Fund in the amount of US$670,000. The implementation of NIDS was slated to begin in 2020 in two phases.

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