Wed | Dec 1, 2021

Gordon Robinson | How far-reaching is the NIDS ruling?

Published:Sunday | April 28, 2019 | 12:00 AM

Cawn’t sey mi neva dida warn yu!

From June 27, 2017, ( Pick a card; any card) I’ve been exposing the threat to Jamaican’s fundamental rights by the National Identification and Registration Act (NIRA). Now that legal scholars have enjoyed making a retrospective meal of the legal issues decided in Julian Robinson v Attorney General (“the NIDS case”), I intend to take a broader view.

In that column, I wrote:

“I predict this’ll prove the most dangerously invasive legislation brought before Jamaica’s Parliament.”

At paragraph 30 of his reasoned judgment, Sykes CJ opined:

“History has taught us that once the power is available and there’s no constraint, government will use that power. Indeed, the risk of abuse of power is the very raison d’être for entrenching fundamental rights and freedoms.”

THAT’s the point. So the blind Tribalist who called a popular radio talk-show to pollute the airways with this asinine non sequitur “Law-abiding people with nothing to hide support mandatory NIDS. Only the criminally minded are against it” doesn’t even recognise his masochism. Shamefully, in my opinion, the show’s host blithely agreed.

Sykes CJ had already dealt with that particular brand of propaganda, even before it was broadcast (but intrepid talk-show host didn’t mention this) as follows [paragraph 247 B (11)]:

“... it has been said honest citizens have nothing to fear. That, however, is to misunderstand privacy rights in a free and democratic society. Free and democratic societies accept and act on the premise that the individual has the right to be left alone, to be anonymous as much as possible, and to retain control over their home, body, mind, heart and soul. This is part of the inherent dignity of human beings.”

Unless, I suppose, the political party you support decides otherwise.

Nobody in their right mind wants state agencies who, for example, are known for planting evidence, to have his/her private biometric information in their hands. Persons residing in political parties’ minds don’t give a flying fig because they KNOW their party’s agencies won’t hurt THEM.

Sigh.

I reminded readers on November 19, 2017 ( The Big Spy), that I categorically considered the NIRA to be unconstitutional:

“The sole issue squarely before Jamaica is privacy with a capital ‘P’. And, of course, trust (with a capital ‘T’).”

The court was careful to explain exactly what “privacy” entailed. Sykes CJ (paragraph 175):

“….privacy, as now understood, has at least three aspects: privacy of the person, informational privacy, and privacy of choice. These aspects of privacy arise not because they are conferred by the State but are possessed by all persons simply by being human.”

Since 2011, they’re also expressly protected (not conferred) by the Jamaican State, which makes it all the more repugnant that it’s the Jamaican State treating these privacy rights so cavalierly. In response to the attorney-general’s submission that the court should defer to government policy, Sykes CJ wrote (143):

“The road to state control of [persons’] lives usually begins with small, imperceptible steps. It’s usually clothed in the garb of some perceived greater good such as national security, economic growth, and the like. There begins one slight trespass, and then another, and another, and before long, the trespass becomes the norm, and the right, the exception. This is one of the dangers of the ... doctrine of judicial deference.”

Shades of Martin Niemöller:

“First they came for the socialists and I didn’t speak out because I wasn’t a socialist. Then they came for the trade unionists and I didn’t speak out because I wasn’t a trade unionist. Then they came for the Jews and I didn’t speak out because I wasn’t a Jew.

Then they came for me and there was no one left to speak for me.”

DIG DEEPER

I considered the threat of State intrusion sufficiently perilous to return to the topic on November 26, 2017 ( Bigger spies than even the US), after former Director of Elections and JLP candidate Danville Walker promulgated yet another popular non sequitur about visa requirements. I wrote:

“The sort of information required is reminiscent of a police state intending constant surveillance of citizens to ensure that government harassment is their lifetime companion. Many Jamaicans joined political propagandists in deliberately or obtusely confusing the need for a national identity number (NIN) with the unconstitutional way in which our privacy is to be unnecessarily invaded to create that number ... former director of elections, Danville Walker, after spending several paragraphs pointing out that NIN was essential, repeated this popular fallacy: ‘He also countered critics of [NIDS] opposed to individuals being fingerprinted, saying that they willingly give their fingerprints when they ‘want a visa or a farm work ticket, but in your own country, "you feel offended if asked.’"

This is an illusion combined with a non sequitur. Only persons who ‘want’ those foreign facilities need subject themselves to such crass invasion of privacy. Some choose to eschew visas/farm-work tickets partly because of those requirements. Apparently, we can’t refuse an NIN. It’s mandatory.

"If Danville wanted to be real about comparisons with US processes, he’d look at requirements for US citizens to obtain a social security number NOT for non-Americans to get visas/farm-work tickets.”

The USA doesn’t require biometric information from its own citizens for their identification card or unique Social Security Number! Why would we?

That important distinction was noted by Sykes CJ (paragraph 247 B):

“(12) Privacy is therefore a very profound and foundational right that permeates and enhances all other human rights. It’s this idea that enabled the Supreme Court of the United States, the Supreme Court of India, and the Supreme Court of Canada to establish, firmly and securely, the existence of privacy rights, even though none of the fundamental rights provisions in those countries contained an express right to privacy.”

Batts J. (paragraph 349), in a typically reasoned and resolute judgment, hit the constitutional nail directly on its head when he opined that “… offends the right to security of the person and privacy. ... These rights reflect, and are integral to, the dignity of a person. The Act proposes to compel persons to divulge [personal] information ... It’s the right to choose whether or not to share personal information, which individual liberty in a free and democratic state jealously guards. The mandatory nature of the requirement as well as the breadth of its scope and the absence of a right to opt out are not justified or justifiable in a free and democratic society. If it’s intended to prevent corruption or fraud, then it’s premised on the assumption that all Jamaicans are involved with corruption and fraud. THE DANGER OF ABUSE BY THE STATE OR ITS AGENCIES, AND THE REMOVAL OF PERSONAL CHOICE, OUTWEIGH ANY CONCEIVABLE BENEFIT TO BE HAD BY THE COMMUNITY OR STATE [my emphasis]

NOTHING JUSTIFIES INTRUSION

Batts J. made it pellucid that government’s laissez-faire approach to its burden of proof was one thing, but, in his opinion, NOTHING government could’ve presented the court as a benefit to Jamaica would justify the intrusion. This begs the question (which I’ve asked before): for whose benefit was mandatory NIDS, therefore, intended?

Now that we understand constitutional right to privacy, let’s dig deeper. This same new constitutional paradigm forcing governments to respect citizens’ privacy rights also provides:

“13(1) Whereas...

(b) all persons in Jamaica are entitled to preserve for themselves ... the fundamental rights and freedoms... and

(c) all persons are under a responsibility to respect and uphold the rights of others recognized in this Chapter...”

These rights aren’t only enforceable against Government, but by citizen against citizen. Already, many employers use their unequal bargaining power to pressure employees to sign employment contracts, including NIDS-like provisions regarding employees’ biometric data and wide-ranging clauses allowing employers to share.

Does the NIDS case protect these employees? Will employers be allowed to do to employees what Government can’t do to all citizens? Will the employment contract be employers’ defence? Will courts allow employers to unduly influence employees into waiving their privacy rights? As a fundamental question, can any contract supersede the Charter of Rights?

Hopefully, the NIDS case has taught governments that citizens govern and government is only their temporarily appointed administrator. If governments feel the need to step on our rights, they should first ask us if we agree after telling us the truth, the whole truth and nothing but the truth about the policy’s genesis.

As fictional UN Ambassador Peter Harriman said to fictional USA Secretary of State Elizabeth McCord: “What America yearns for are leaders with the integrity to tell the truth: the charisma to make people listen, and the guts to act on it.”

Since no such leader is apparent in Jamaica’s political arena, I’m glad that an independent-minded judiciary seems to be striding to the crease and batting for us.

Peace and love!

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com