Editorial | Doing right by NIDS

On the face of it, Prime Minister Andrew Holness deserves credit for having learnt from his Government’s previous botched effort to establish a national identification system (NIDS), which the Supreme Court struck down as unconstitutional.

“I benefited from it, and it made us think deeper in crafting a policy that would be in keeping with the parameters of our Constitution and how we see ourselves as a democracy,” Mr Holness told Parliament earlier this month when he tabled a new National Identification and Registration Bill. “I believe we have come up with a policy that will achieve the objective.”

That objective is to create legislation for Jamaicans and long-term residents to be part of a national registry with unique and traceable ID numbers without infringing on citizens’ right to privacy and equality under the law. In the circumstance, given the tensions between the administration’s original aspirations and Mr Holness’ acknowledgement of the limits established by the Constitution, the Government, we believe, has done reasonably well with its latest offering. It has scaled back its ambitions and shelved its threat to deprive citizens of state benefits for them to fall in line.

Whether the Government has done enough or that more is required for the administration to meet the obligations under the Constitution should emerge during what we hope will be a rigorous debate of the draft law not only by legislators, but civil society groups, too.

The Government had sold NIDS – being set up with a US$68-million loan from the Inter-American Development Bank – as the backbone to a modern, digital economy, where citizens could leverage their unique ID information to do transactions across domestic and global networks. But part of the background noise to the initiative was its touting by some government officials as a potential crime-fighting tool. It would have a permanent record, including, possibly, intrusive biometric information, of all Jamaicans – almost from birth to death.

Enrolment was originally intended to be mandatory, on pain of criminal prosecution, although conviction would not have carried a criminal record. Further, without the national identification, Jamaicans and permanent residents in the island would not be able to transact business with the Government, including accessing state benefits. Indeed, some government officials argued that the law, as drafted, was necessary to reverse a Jamaican tendency to informality and enhance the Government’s ability to develop policies founded in sound, democratic data.

INFRINGEMENT ON CONSTITUTIONAL FREEDOMS

However, in a ruling last year, on a challenge by the Opposition, the court held that the law’s mandatory requirement trespassed on the constitutionally guaranteed right to privacy and that the exclusion of some citizens – those residing overseas – from needing the national ID to do business with the Government was counter to the principle of equality before the law. Further, the court ruled that the Government did not show that the legislation met the standard of what is reasonably necessary in a free and democratic society to countenance an infringement on constitutional freedoms.

It is significant, and perhaps in keeping with Prime Minister Holness’ observation about his reflection on the Constitution and Jamaica’s democracy, that the Government did not demur against the ruling.

Rather than going to the appeal court, Mr Holness brought to Parliament a heavily revised bill that makes it clear that enrolment in NIDS will be voluntary. It also removes the mandatory requirement of this ID to do business with the Government. It says, instated, that the national ID will be “a means of proving … (an) individual’s identity” and “... a means of facilitating transactions between that individual and any other party, where agreed between that individual and the other party”.

Additionally, the new bill excludes some of the biographical and biometric information that was initially proposed in the struck-down law such as person’s race, religion, palm prints, toe prints, retina scans, and eye colour.

While sympathetic to the broad aims of the NIDS law, we were opposed to several of the elements of its original formulation, concerned over the end run it attempted around the Constitution. Were that allowed to stand, it would have been a precedent for future attacks on fundamental rights and freedoms.

We appreciate that voluntary enrolment under the new NIDS will make it more difficult for the Government to achieve its objectives. That means it just has to work harder to convince Jamaicans that it is right that they enrol. Or the Government can go the appropriate route to change the Constitution. That is the way liberal democracies function.