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Flashback: The NIDS challenge in a nutshell

Published:Friday | April 12, 2019 | 12:00 AM
Chief Justice Bryan Sykes

The Constitutional Court this morning ruled that the National Identification and Registration Act (NIDS) is unconstitutional, null and void and should be struck down.

The ruling was made six months after a three-member panel heard arguments that the claimant, People's National Party General Secretary Julian Robinson, had brought against sections of the NIDS Act.

The full court panel, comprising Chief Justice Bryan Sykes and Justices David Batts and Lisa Palmer Hamilton, heard submissions.

Here are some highlights of what transpired during the October 22 to 24, 2018 hearing:

During the proceedings, attorney-at-law Queen’s Counsel Michael Hylton, who represented Robinson said that the NIDS Act breached eight of the 25 rights and freedoms. Robinson filed the challenge to the NIDS Act on May 8, 2018, on behalf of himself and his constituents in  St Andrew South Eastern.

Hylton had argued that in its current form, the NIDS breached the rights of individuals to privacy, to security, to a passport and equality before the law. The attorney-at-law further stated that the requirement under NIDS that an individual must be in possession of a national identification card in order to access Government services would be unconstitutional. He said that requirement could put people at risk if they are denied access to health care if they are not registered under NIDS or not in possession of the national ID. The attorney also noted that when the regulations for NIDS are finished, they could compound the situation.

Attorney General Queen’s Counsel Marlene Malahoo Forte argued that the matter brought by the Opposition was premature. She contended that neither the NIDS law nor the accompanying regulations have been enacted. She suggested that the regulations would likely address some of the concerns raised by the PNP.

The attorney general pointed to section 41(3) of the NIDS which provides an exemption for persons requiring healthcare to be treated even
if they are without their national identification.
“This section does not apply during a period of public disaster or public emergency as defined by section 20 of the Constitution of Jamaica or in any other situation that poses threat to health or life” section 41 (3) of the Act reads. 

Malahoo Forte was questioned by the three judge panel, that also took issue with sections of the NIDS Act. The judges said, according to the Act, individuals are required to state their blood type which could contain information on an individual’s DNA. The judges wanted to know whether persons would inadvertently provide DNA information in order to register under NIDS, citing that the government would likely have to collect blood samples in order to verify a citizen’s blood type. 

Chief Justice Bryan Sykes and Justice David Batts quizzed the Attorney General why persons would be  sanctioned for refusing to provide their fingerprints in order to register under NIDS. The Supreme Court Justices also questioned why individuals would be fined $100,000 or six months imprisonment for refusing to register. They also questioned whether a person’s right to refuse was being taken away.

The Attorney General said if something is made compulsory, it must be enforced. In response, Sykes stated that there was no evidence that the problem was great that such penalties would have be imposed.  Justice Batts also noted that making it mandatory for persons to register infringed on their rights.

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