Sat | Dec 14, 2019

Jennifer Housen | NIDS – a missed opportunity

Published:Sunday | December 1, 2019 | 6:55 AMJennifer Housen - Contributor
Prime Minister Andrew Holness.

A National Identification System (NIDS) is a good idea. The way that Andrew Holness’ Jamaica Labour Party Government sought to implement it was not a good idea.

I was pleased when I was invited to be part of the legal team for the Opposition People’s National Party (PNP) challenge of the constitutionality of the Holness administration’s enactment of the NIDS Act, with my own background in public law, and as a firm believer in upholding human rights.

The intense research led the legal team across continents. We reviewed the positions in India, Mauritius, the United Kingdom (UK), and United States and, frankly, even without the benefit of hindsight, I simply had no doubt that our team would prevail in the challenge. It was extremely clear that the mandatory basis of provisions of the act simply could not stand when juxtaposed with the Jamaican Constitution. The two were incompatible. The PNP’s legal team, headed by Michael Hylton, QC (an absolute genius in my view), did justice (pardon the pun) to the task assigned.

The Government’s legal team, led by the attorney general herself, Marlene Malahoo Forte, QC, relied on inappropriate and irrelevant case law and principles, such that I was unsure whether their reliance was by inadvertence or design. One can only surmise that they were batting for the side, playing the hand they were dealt.

STRONG WIN FOR THE PNP

On April 12, 2019, the court’s decision was firm, clear, well reasoned, and evinced a strength in depth justifying the time the matter took for consideration. NIDS was unconstitutional, and was struck down. Without a doubt, this was a strong win by the PNP for not only Jamaica, but also for the PNP itself. The Opposition’s challenge was justified. Notwithstanding there were several interested groups, none joined the litigation. As such, the PNP could rightly claim this victory in its own column.

The party rode on a wave of smug satisfaction. The rounds of media interviews were conducted. The general secretary, in whose name the litigation was brought, was the man of the moment. The PNP reiterated not only its commitment to upholding the rights of all Jamaicans, but also its position on not being averse to a NIDS in principle. So where are we now?

At the time of the challenge, there was the criticism that the PNP was simply being obstructionist, and that this system was ‘a good thing for Jamaica’. The PNP countered that they actually supported a NIDS, pointing to the genesis of such a system having originally been advanced by the PNP. The PNP emphasised its position that NIDS could have been better implemented so as not to abrogate the rights of Jamaican citizens and, even worse, let Jamaican citizens be worse off in their own country than a non-Jamaican. Thus, after the win, it may well have been a good idea for the PNP to hold a series of town hall meetings in order to educate and sensitise on a proposed PNP version of a NIDS that would effectively work for Jamaica, one not constitutionally defective, and demonstrated the PNP’s commitment to a future embracing information and communications technology.

LACK OF DATA PROTECTION

There was the other criticism regarding data protection. The Holness administration had created the whole NIDS legislation, based on data, without any data protection legislation! The Government’s half-hearted attempt at enacting data protection legislation was the sum total of a bill modelled on England’s 1998 Data Protection Act, which would be obsolete in any event, as that legislation was itself overtaken by the General Data Protection Regulations of May 2018, and so, after only one data protection town hall meeting in May 2018, nothing has since been seen or heard of any data protection laws.

Fast-forward to November 2019. There has been a recent flurry of activities in respect of NIDS. First out of the gates was the Bank of Jamaica governor saying how far ahead Jamaica would be with NIDS. Next, the Office of the Prime Minister advertised for a monitoring and evaluation officer for NIDS. Then, the prime minister announced a new NIDS Bill and, last, the Private Sector Organisation of Jamaica welcoming this new bill.

In all of this, there is a deafening silence from the PNP. Where is the call for strong data protection legislation before such a bill can, or should, even be considered? Where is the scrutiny and cross-party meetings that PM Holness should have been held to? Where are the PNP’s proposals to support their position that we believe it is ‘a good thing’?

MANDATORY REGISTRATION

My own personal objection to NIDS is its mandatory registration. Beyond it being unconstitutional, it is too intrusive. As such, I very much agreed with Chief Justice Bryan Sykes’ suggestion that free passports could well ‘cure’ the mischief at which the Government is seeking to aim.

Nothing can be 100 per cent. It is simply impossible to capture every single person’s data, as that would require compulsion, such compulsion being the unconstitutional aspect of this exercise. Indeed, when the UK tried a similar law in 2006, it was to biometric passports (for citizens) and biometric cards (for residents) which they turned their attentions for the same information that was being sought, after the act was subsequently repealed in 2010.

The PNP’s NIDS win should have been the focus of any ‘Duh Road’, as a more proactive approach from the PNP, after such an excellent win, would arguably have placed them in a position to speak truth to power on the new bill. So what if the PM’s new bill is unconstitutional? Who will challenge it? No other group participated in a challenge last time. That is unlikely to change.

As it stands, should the PM and his office press forward with a bill in any form, even in a slightly paler (unconstitutional) shade of what was rejected by the court, then any new challenge (by the PNP) may well not transcend the ‘obstructionist’ cries.

A strong and vocal opposition preserves democracy and keeps the potential of tyranny in check. It is, after all, the government-in-waiting. The Opposition PNP’s silence and inaction, since the judgment from April until now, may well have been a missed opportunity, as the prime minister’s own agenda will undoubtedly dictate an aggressive political push for NIDS 2.0, arguably, potentially, making the PNP’s win of April 2019 no more than a pyrrhic victory.

 Jennifer Housen is a barrister-at-law in England and Wales and an attorney-at-law in the United States and Jamaica.