Fri | May 25, 2018

Matondo Mukulu | Amend flawed ID law

Published:Sunday | May 13, 2018 | 12:00 AM
Matondo Mukulu
Leader of government business in the Senate, Kamina Johnson Smith, has spearheaded the NIDS legislation amid concerns raised by the Opposition.
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On December 8, 2017, while everyone was expressing their wishes for the festive season, the governor general gave his assent to the National Identification and Registration Act 2017 as the majority party in the Lower House had, in effect, voted to enact the legislation. The objective of the legislation, we were told by the Government, is to ensure that we have an across-the-board system of national identification. Of course, there are those among us who are of the view that there has been an unholy and unexplainable haste in enacting this legislation because the International Monetary Fund (read: Uncle Sam) is demanding it.

Not many persons in our country object, in principle, to the need for a national system of registration and identification, especially when we take note of the ease with which the criminals among us move from parish to parish. However, what many object to, in addition to the general haste with which the legislation was enacted, are the provisions that seemingly infringe the Constitution.

To this end, I take note that the People's National Party (PNP), through its general secretary, Julian Robinson, has made an application to the Supreme Court to declare specified sections of the act contrary to the Constitution.

In response, a member of the executive, Dr Horace Chang, has expressed the view that the PNP is being obstructionist, and, taken to its logical conclusion, they are, Chang says, being dishonest as the act contains provisions that were in the bill that was first introduced in 2002 when Mr Robinson's party formed the Government.

To assess the value or correctness of what Dr Chang asserts, it is best that we take a look at some of the alleged breaches, as is being contended by Mr Robinson, bearing in the mind, of course, that under our Constitution, most of the rights guaranteed are not absolute. By this we mean that the Constitution does permit infringement of a specified right, but only if certain preconditions are met by the State.

One of the first grounds on which Mr Robinson anchors his application is that the act permits a difference in treatment between Jamaican nationals who are ordinarily resident in Jamaica and those who are not resident in Jamaica. Under Section 41 of the act, if a person who is a resident in Jamaica refuses to acquire the national ID, he or she, unlike his foreigner Jamaican brother, will be refused public services and goods.

So, on your way from the airport, having just collected your Jamaican brother who lives in New York, you have an accident and need some attention at Kingston Public Hospital, but you had failed to obtain the ID. The nurse tells you that she cannot attend to you as you don't have the ID. Your brother gets publicly funded medical assistance, even though he has not paid any taxes in the last 30 years that he has been ordinarily resident outside of Jamaica.

 

RIGHT TO EQUAL TREATMENT

 

This is an extreme example, but the salient point here is that this is contrary to the right to equal treatment before the law under the Constitution. Dr Horace Chang and the attorney general must take a serious look at this issue as it is likely to produce absurd results. The section is contrary to the Constitution and we must remind the executive that the Constitution enjoins Parliament not to make any law that can have the effect of breaching the rights it confers. In this instance, no member of the Cabinet or Jamaica Labour Party MP would be able, with a straight face, to show you which provision in the Constitution sanctions such unequal treatment.

Connected to the foregoing is the fact that Section 20 (1) of the act make it mandatory for registrable individuals to be enrolled in the database that will be created. You are a "registrable person" if you are a person or citizen of Jamaica who has resided at least six months in Jamaica prior to being enrolled in the database.

It is argued that this level of coercion created by Section 20 runs contrary to the constitutional right to privacy. In other words, why should I be compelled to do such a thing? This is a valid question, and while I do note that countries such as Portugal and Angola have similar mandatory provisions, our Government will now need to make the case in court as to why it says that such an infringement of one's right to privacy is necessary and proportionate, especially when it is noted that the infringement is not premised on one being either charged with, or convicted of, a criminal offence.

This is where I think the unholy haste in getting the bill through Parliament will cost the Government as the mandatory nature of Section 20 needs to accord with the Constitution, and the attorney general should take a moment to find a solution to what is an obvious flaw.

 

THE ACT'S PRIMARY FLAW

 

I turn to one of the primary flaws in the act, and it is that the National Identification and Registration Authority has as one of its functions the task of developing policies on the issue of the sharing of data. Of course, it is correct that there must be policies of that kind, but when we read Section 43 (1)(e) of the act, it tells us that the data can be shared, or, to use a more appropriate term, disclosed if the act so authorises it.

This final basis for disclosure is rather vague, and it is perhaps more sensible on the part of the Government to remove these grounds and stick with the remaining four sensible grounds on which data can be shared or disclosed as outlined at Section 43. I make this point as not only is there a provision for a court to authorise sharing, which some would say should be the standard (due process), but an individual who disagrees with the sharing of the data can appeal that decision to a tribunal established under the statute.

The problem there is the obvious one: The sharing has already occurred and damage has occurred with no prior judicial determination. Section 43, with its fifth grounds for disclosure, is potentially unconstitutional, and the defect is not cured by the existence of a right of appeal.

Dr Chang is correct in saying that there is clearly a need for such a system of national registration and identification, especially as we note that it can be used as a weapon in the fight against criminals. However, there is really no gain in the fight against crime (let's admit this one) if we maintain a badly drafted piece of legislation because we are in a hurry. I think that is the first lesson that our parliamentarians must learn from the drafting of the INDECOM Act.

The ID act is flawed. Fix it before it is struck down by the Supreme Court.

- Matondo K. Mukulu, former acting public defender in Jamaica, is a public law barrister in Britain. Email feedback to columns@gleanerjm.com and kamaumukulu@yahoo.com.