Holness’ push to expedite revised NIDS law causing ‘grave disquiet’

Almost one year ago to the day, on the 12th of April 2019, the Full Court of the Supreme Court of Jamaica struck down the National Identification and Registration Act, otherwise referred to as the NIDS law.

The court found, among other things, that:

• The NIDS law did not provide sufficient safeguards against misuse and abuse of the data collected,

• The compulsory taking of biographical and biometric data was a violation of privacy rights,

• The mandatory legal obligation by Jamaican and ordinary residents to produce a National Identification Number (NIN) or National Identification Card (NIC) when seeking to access goods and services from public bodies while not placing the same legal obligation on foreigners to produce some form of identification amounted to unequal treatment, and

• Requiring a NIN as a prerequisite to holding a passport was disproportionate and harmed the constitutional right to a passport.

In his leading judgment, Chief Justice Brian Sykes, having identified violating provisions, declined to sever them and allow the rest of the statute to stand because, “…the regime …does not offer sufficient protection for the sensitive data that is to be collected under the statute. This means that even if the scheme were a voluntary one more robust protection would be required.”

At a press briefing on March 20, 2020, Prime Minister Andrew Holness informed journalists of the government’s intention to, “…move as quickly as possible within the boundaries of the law and the constitution to ensure that every citizen in Jamaica has a unique identifier that will be able to ensure that whatever benefits that come from the government will go directly to them”.

Ominously, the Prime Minister also stated that the government would be “putting the NIDS on a faster track to implementation… we cannot waste a crisis.” These utterances have caused grave disquiet in many quarters harping back as it did to the circumstances in which the first impugned NIDS law was passed in November 2017. 

In November, 2017, by legislative manoeuvring, Prime Minister Holness took advantage of the ill-conceived walk-out by the parliamentary opposition to pass a law which, before that November sitting, had neither been seen nor studied by the government or opposition Members of Parliament, their constituents whom they represent, or the media.  The draft Act had only just come back from the senate with 168 amendments.

Quite reasonably, the prime minister, at the start of the sitting, stated there would be no debate that day as all members of the house, on both sides of the aisle, needed time to read the amended bill. In the end, the lure of US$68 million loan funding from the Inter-American Development (IDB) outweighed the ethical niceties. The PNP walked out after heated debate over procedural issues, the Prime Minister astoundingly went back on his word, and the NIDS was passed into law.

Many voices from civil society had begged the government for a chance to be heard. Members of the Parliamentary Opposition along with, the Jamaica Coalition for a Healthy Society (JCHS), the Lawyers’ Christian Fellowship (LCF), Jamaican Bar Association (JBA), the Love March Movement (LMM), the Church and other religious groups, the Rastafari community, the Joint Trade Union Congress (JTCU), and over 66,000 people who signed a petition (see Appendix 1) called on the government to respect the principle of democracy. They demanded the setting up of a process of consultation with the Jamaican people, including a Joint Select Committee of Parliament to examine and report to the House of Representatives on the NIDS Bill. 

As was the case in November 2017, speed motivated by political expedience, is still anathema to the diligence required to establish adequate data protection and other regulatory frameworks.

As Jamaica and the world battle the COVID-19 pandemic, there are greater moral imperatives now than in 2017. If passed, a NIDS law will have far-reaching consequences for almost six million Jamaicans at home and in the diaspora, as well as persons ordinarily resident on the island. 

On this first anniversary of the false start of NIDS, we call upon the government to honour the trust reposed in it by its citizens, home and abroad at this delicate and vulnerable time of a public disaster by making the NIDS Bill 2020 public as soon as possible and inviting interested parties to participate in a fulsome national discourse concerning the new NIDS proposition.