Split over NIDS

Sources say some Cabinet members want case appealed, others call for redraft of legislation

BY ARTHUR HALL
Editor-at-Large
halla@jamaicaobserver.com

Thursday, April 25, 2019

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ALMOST two weeks after the Constitutional Court struck down the National Identification and Registration Act, which was to allow the introduction of a National Identification System (NIDS) in Jamaica, the Andrew Holness Administration is still to decide on its next course of action amid reports of a split in the Cabinet over the response.

In the immediate aftermath of the ruling on Friday, April 12, the Office of the Prime Minister (OPM) said the Government would spend time carefully reviewing the judgement, after which a comprehensive response would be issued.

Yesterday press secretary at the OPM, Naomi Francis, told the Jamaica Observer that senior members of the Administration were continuing their review of the judgement.

“I do know that some persons are anxious to hear what the Government's position is, and several options are on the table at this time (but) no decision has been reached because the process is not complete in terms of the review,” said Francis.

“I am sure that once the review is complete and a decision is made on the way forward it will be communicated and I don't think it will be long from now, given the extent of the ruling and the volume of the judgement.

“Certainly, you would have seen that the judges took their time and were careful in terms of how they came out on the Act and the final decision, and so I think it would behove us to have the patience to allow the Administration, the prime minister, the attorney general, to do the review and then to communicate a decision to the Jamaican people,” added Francis.

But Government sources say the court's ruling was the subject of intense discussion at the meeting of the Cabinet on the Monday, April 15 immediately following the ruling and that ended without consensus and only a suggestion for a further review of the more than 300-page ruling handed down by the judges.

According to the sources, there are some members of the Cabinet who are pushing for an appeal of the ruling by the full court panel of Chief Justice Bryan Sykes, Justice David Batts and Justice Lisa Palmer Hamilton.

Cabinet members on that side argue that the judges erred in law when they ruled that the legislation could not stand because some provisions violated the Charter of Rights.

On the other side are Cabinet members who say the ruling of the Constitutional Court should be accepted and immediate efforts made to redraft the legislation to ensure that the provisions do not violate the charter.

The sources say Holness appears to be siding with those who are for the redrafting of the legislation.

Having heard submissions from the parties between October 22 and 24 last year, the Constitutional Court ruled that the legislation was null and void and of no legal effect.

“Having declared some of the provisions in violation of the charter, we are of the view that what was left could not stand because ... it was so bound up with the other provisions that there is no way it could survive by itself... and the other route was that what was left would still be in violation of the constitution,” said Sykes in his oral summation of the judgement.

Justice Sykes said the panel found that aspects of the legislation were in violation of the right to privacy and the collection of biometric data would impact information privacy.

He added that the protections under the Act for the storage and safety of information while in the possession of the State were inadequate and that would also be a violation of the right to privacy.

The judges also found that the mandatory requirement of the legislation deprives the individual of choice. They noted that an individual who refuses to participate in NIDS is at risk of criminal prosecution and will have a conviction although it would not be recorded.

Since the court's ruling, Opposition Leader Dr Peter Phillips has called on the Government to account for the millions of US dollars borrowed from the Inter-American Development Bank for the implementation of the NIDS.

Phillips has tabled several questions in Parliament on issues relating to the expenditure and contracts related to the NIDS. Holness is expected to provide the answers within 21 days after they were tabled.


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