Sat | Apr 4, 2020

Malahoo Forte flatfooted on PNP's arguments in NIDS case

Published:Tuesday | October 23, 2018 | 12:00 AMCorey Robinson/Staff Reporter
Attorney General, Marlene Malahoo-Forte

Attorney General Marlene Malahoo Forte yesterday struggled to rebut allegations that at least one aspect of the National Identification System (NIDS) will treat Jamaicans unfairly in comparison to non-Jamaicans who try to access goods and services on the island.

Attorney-at-law Michael Hylton, QC, who is heading a People's National Party (PNP) challenge of the NIDS Act, argued that Section 41, which deals with the mandatory registration under NIDS in order to access goods and services, puts Jamaicans at a disadvantage.

"The act requires Jamaicans to be registered under the act and to provide their registration in order to access goods or services from a public body. It does not make the same requirements for non-Jamaicans," Hylton outlined to the Supreme Court yesterday.

"So a Jamaican falling sick and who goes to a public hospital could not be treated, or the public body could refuse treatment if the person cannot provide proof of registration," he argued. "A non-Jamaican who is visiting Jamaica and falls sick would not have to provide it to be treated. That's one example of the kind of discrimination that the act causes, which we say is unconstitutional."

When it was time for Malahoo Forte to respond to the allegation, however, it seemed the attorney general was unclear of the arguments being made, despite repeated explanations by Justice David Batts and Chief Justice Bryan Sykes, two of three judges presiding over the matter.


"If a Jamaican wants to get a copy of his birth certificate, he has to have a NIDS card. The non-Jamaican who wants to access those same goods and services doesn't need to produce the NIDS," noted Sykes. "The argument by Mr Hylton is that it will be detrimental to the Jamaican who must do that much more to access the services."

The judges highlighted that there was nothing in the act to prevent a public servant from arbitrarily declining to render goods and services to a Jamaican who is not on NIDS, and that having gone through the legislative process the issue is difficult to addressed.

The matters sparked an almost hourlong back and forth with Malahoo-Forte, who attempted to rebut the challenge based on utterances made by the Government as opposed to the text being examined before the court.

"The contention, as I understand it, is that someone going to applying for a birth certificate would be required to produce a NIDS ... a non-Jamaican ... and that it is discriminatory ... and the non-Jamaican is applying on behalf of someone else? Because I'm not understanding," said a confused Malahoo-Forte, to whom the argument was again explained by the judges.




After the hearing, Malahoo Forte explained to reporters that "some of the issues raised will be taken care of in the regulations. The law is not yet in operation and the regulations are to come to look at the workings of it."

The NIDS legislation was passed by Parliament in the face of a walkout by the Opposition, when the Government failed to refer the bill to a joint select committee for further deliberations.

The court action is being brought by PNP General Secretary Julian Robinson on behalf of himself, his constituents in St Andrew South East, and the members of the PNP. The Opposition is arguing that the act breaches the rights to equality, public liberty, and the security of the person, among other things.

The hearing continues today.