Fri | Aug 17, 2018

Martin Henry | On with the NIDS challenge!

Published:Sunday | June 3, 2018 | 12:50 AMMartin Henry
Martin Henry

NIDS heads to court later this week.

On May 8, the parliamentary Opposition filed a motion in the Supreme Court asking the court to rule that sections of the act for the establishment of a National Identification System breach guaranteed constitutional rights of Jamaican citizens and legal permanent residents of Jamaica and should be declared null and void and struck down.

The next day, both morning dailies carried the same headline for their front-page lead story, ‘NIDS battle’. If this is a battle, it is a very important and useful one. Not only for the specific matter of determining the constitutionality of elements of the NIDS Act, but for that larger matter of using the judicial branch of government to determine the legitimacy of laws enacted by the legislature and to interpret the Constitution.

There is no doubt that a certain amount of political grandstanding and even pettiness is mixed into the NIDS battle. These are well-nigh unavoidable built-in features of parliamentary democracy and particularly acute in our tribal version of it. But this is all the more reason why the courts should be asked to provide a ruling on the matter.

We pause to note the speed with which a court hearing will be held. The matter was filed by the general secretary of the PNP, Julian Robinson, on May 8 and a hearing will be held a mere month later on June 8! Just last week, we were treated to another story of an unconscionable delay in trial when four men accused of murder sought unsuccessfully to have their retrial thrown out after a 13-year delay. The men, in their application, argued that their constitutional right to a fair trial within a reasonable time had been breached and they complained that it was an abuse of the court process for the prosecution to continue after the 13-year delay.

We have just seen a mad scramble around the world, including here in Jamaica, for compliance with the European Union’s General Data Protection Regulation (GDPR), which came into effect on May 25 and is designed to protect EU citizens' fundamental right to data protection across the world whenever personal data are used by criminal law enforcement authorities. 

A NIDS is both necessary and inevitable. But it cannot be without rigorous safeguards of the constitutional rights and freedoms of citizens and the proper protection of their privacy and personal data. This is what the Opposition says it is fighting for.

ROLE FULFILMENT

We have come to view the Opposition mostly as a government-in-waiting relentlessly, and sometimes mindlessly attacking the plans and policies of the Government and shouting loudly that they can do it better. The Constitution intended for the Opposition the critical role of being the principal bulwark against any trespass upon the rights and freedoms of the people by the Government wielding state power, and functioning as the principal defender of the Constitution itself from any incursions against it. The NIDS case before the Supreme Court is role fulfilment.

In that May 8 press conference, the leader of the Opposition made it clear that “we are in support of a National Identification System, and we believe a properly constituted national ID system would be beneficial to Jamaica, but the NIDS bill, as currently constructed, infringes on the rights of a number of Jamaicans in some critical ways,” Dr Phillips said.

To the contrary, the utterances of the Government in response have been inflammatory. From its first tabling, the Opposition wants “to undermine the bill,” the Government says. “They have consistently maintained a posture of obstruction.”

The Opposition need not waste time defending itself against the charge of being obstructionist. On this matter, the parliamentary Opposition ought to be obstructionist. And since the parliamentary processes have broken down (the assigning of blame is now neither here nor there), it is on to the courts.

OPPOSITION'S ARGUMENT

Patched from the media reports on the May 8 press conference and the court documents, the Opposition is arguing that: The motion was filed because there is no other course of action available to the Opposition other than getting a declaration from the courts. “There were many occasions when we asked for the bill to be placed before a joint select committee for opportunities for various stakeholders to present their views and for a chance for a more comprehensive consideration of various aspects of the bill.

“We were denied that opportunity, and our considered view from our legal advisers and the team is that there are provisions in the Bill that are, in fact, unconstitutional and that we're asking the Supreme Court to strike down these provisions in the Bill,” Dr Phillips said.

Sections of the act infringe on the right to security of a 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.

Section 4 of the act will cause Jamaicans to be denied goods and services if they refused NIDS. A non-Jamaican, for example, would be able to purchase property without being subjected to the provisions of the act, while a Jamaican would not be able to.

Section 6 of the act will allow for the violation of Jamaicans' privacy as personal data collected could be disclosed “without any of us having an opportunity to prevent the disclosure from taking place”.

Under Section 15 of the act, Jamaicans' constitutional rights to privacy, a passport, and to vote will be contingent on their compliance with the requirement to enrol in the database. Biometric data are the subject of informational property rights and are protected under Section 13(3)(j) of the Constitution.

Section 39 of the act will give Government the power to share the information of Jamaicans with third parties, and this violates citizens' right to privacy under Section 13(3)(j) of the constitution. Section 39 of the NIDS Act also allows for the potential to misuse information.

 

“We feel fundamentally,” the leader of the Opposition said, “that there are breaches of people's constitutionally guaranteed rights to privacy, rights to travel, other provisions of the constitution, including access to basic government services by taxpayers which the provisions of the Bill deny and which cannot be justified on the basis of the Charter of Rights which says that no law should be passed which is not of free and democratic societies.”

ALLEGED UNCONSTITUTIONALITY

A summary of the alleged unconstitutionality of NIDS includes challenges to: the right to security of the person; the right to equality before the law; the right to a passport; the right to protection of property rights; and the right to due process. The right to equitable and humane treatment from public authorities; freedom from discrimination; and freedom from inhumane or degrading treatment.

A court challenge resolved in the negative the issue of whether the appointer of senators (prime minister or leader of the Opposition) had been bequeathed with constitutional authority to remove them. The failure to file a court challenge has left unresolved in law whether the prime minister has the constitutional authority to recommend the temporary appointment of a chief justice when there is a clear vacancy in the office.

On with the NIDS court challenge!

- Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.