Editorial | Reap political maturity from NIDS
If the Government appeals the Supreme Court’s ruling against the law that was to be the basis of its national identification system (NIDS), it would, in all likelihood, merely give confirmation to the Oakes test, applied by the judges as the new standard to determine the constitutionality of Jamaican laws. For, from our vantage point, the reasoning of Justices Bryan Sykes, David Batts and Lisa Palmer Hamilton was impeccable.
The issue for Prime Minister Andrew Holness, therefore, is how to frame a revised law that achieves his objectives, on which there is broad consensus, yet is faithful to the Constitution. The answer is simple. He must do what he should have done in the first place: engage widely, including talking seriously with the political Opposition.
Indeed, the new approach to NIDS ought to provide a template to Jamaican governments and political parties for dealing with the people’s business, where the appearance of, or the need to declare victory, lags in the wake of the national interest.
The Government says Jamaica needs a system to, given our tendency to informality and the use of assumed names, uniquely identify each citizen that would also help to improve policy development and service delivery. The opposition People’s National Party largely agrees.
They diverge, however, over the fact that the National Identification and Registration Act made acquiring a unique identification number and a national ID card, stored with people’s biometric, biographic and demographic information, compulsory. Failure to acquire a card or number would be a criminal offence and preclude persons doing business with, or accessing services from the Government.
The Supreme Court agreed with the Opposition that the law would infringe on people’s right to privacy and to equality under the law, given that, in applying the Oakes test – based on a case from the Canadian courts – the Government hadn’t shown that these infringements were “demonstrably justified in a free and democratic society”, as required by the country’s 2011 Charter of Rights.
The administration found itself in this constitutional cul-de-sac because of its failure, in part, perhaps because of urgency with which it believed it had to get on with the law, to engage in gritty, and potentially discomfiting but necessary dialogue. It declined an invitation to put the bill before a joint select committee of Parliament, which would hold hearings on the matter.
It needed to pass the law quickly, the Government argued, to meet the deadline for a US$68-million loan from the Inter-American Development Bank to be used to finance NIDS’ s development.
NO TIME TO GLOAT
The ruling by the court shouldn’t be cause for gloating by the Opposition, if it really is committed to a national identification system. Rather, it should be a teaching/learning moment for all of us.
In that regard, Prime Minister Andrew Holness should invite the Opposition leader, Peter Phillips, to discuss the broad framework of a NIDS arrangement, and, thereafter, assign their legal/technical teams to flesh out its details. The draft bill flowing from this process would be subject to hearings by a parliamentary committee, providing other stakeholders the opportunity to critique the legislation and to make inputs.
There may be complaints about time, but no deadline is more important than the sanctity of our Constitution and maturity in governance and policymaking.
If the Government decides to go the Court of Appeal and/or the Privy Council on NIDS, it should be in concert with the Opposition, embracing what Chief Justice Sykes described as the Supreme Court’s previous attempts at “trying to ride two horses at the same time” by seeking to bridge the old ways of interpreting the constitutionality of laws and what is required with the advent of the Charter of Rights. “An impossible feat,” he said.
Such a move would be a signal of political maturity and of a bipartisan commitment to constitutional rights and their protection.