Hogwash! NIDS is no saviour

Hogwash! NIDS is no saviour

... and the PM knows it

Jennifer HOUSEN

Sunday, April 05, 2020

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The coronavirus pandemic has hit like nothing anyone has seen in decades. First World countries initially disbelieved. Their responses were slow. We wait to see if history will be kind to the UK and the USA in their responses. What I saw from Jamaica, though, was that in the same way that we have not let size define us on the international music and sports stage, we took the lead on something that still sees us with stable numbers and an enviable approach. We did not rival world leaders, we surpassed them. I credit that to the prime minister, Andrew Holness, and Minister of Health and Wellness Christopher Tufton.

As this pandemic unfolded, as a non-TV viewer, I have ensured my presence before 'the box' to listen the latest on the Government's updates. Whilst there were initial delays, they were explicable. Inconvenience and restrictions on mobility appeared agreeable trade-offs to the greater good of saving Jamaica.

The more I became glued to the television for the updates, the more developed my observations skills. The prime minister's body language showed an increase in confidence. Tufton was more likeable and believable. Holness appeared (still) threatened by a Christopher Tufton. Marlene Malahoo Forte needed to simplify her language for the average Joe. Nevertheless, despite such personal observations, the information, exhortation, and guidance came through.

The nation has been pulling together. There has been a concerted effort not to 'make it political'. The last thing to do is to make this crisis a political football. The Opposition has been chastened in its utterances. It was, therefore, with alarm and dismay that as I settled in front of the box for the prime minister's usual briefing, I heard him raise the issue of the national identification system (NIDS), struck down by the Supreme Court last year. And he started to use language such as “putting NIDS on a fast track”, “cannot waste a crisis”, and “If we had the NIDS, then it would be easier for the Government to benefit the people,” “We are behind in its implementation,” “Every citizen of Jamaica...”

Whoa! One second, Mr Prime Minister, I thought we weren't going to politicise this? Your references to NIDS, in your delivery, is every bit politicising this crisis. First of all, as part of the legal team who successfully challenged the Government's unlawful and unconstitutional legislation, I feel qualified to speak.

Since the Supreme Court stopped the Government in its tracks, I have not heard the prime minister, at any time, acknowledge that his unlawful and unconstitutional passage of the NIDS Act was flawed. What he has bandied about, instead, has been an 'us against them' scenario, fuelled by impeccable public relations; that is, we want to implement (us/Jamaica Labour Party [JLP]), but they want to oppose (them/People's National Party [PNP]). This is false. And the prime minister knows that.

The idea of a NIDS originated under a PNP stewardship. The crux of the NIDS litigation was unconstitutionality. Accept that, Prime Minister! Your Attorney General sought to defend the abrogation of the constitutional human rights of Jamaicans and the Supreme Court of Jamaica was having none of it.

Both Chief Justice Bryan Sykes as well as the Opposition have recommended, for example, ways that a voluntary scheme could be implemented with a high degree of take-up. The Government has not accepted this. Instead, the Government continues to mislead from the front that somehow the Government wants to take Jamaica into the digital 21st century and the Opposition doesn't.

Indeed, in his utterances, Prime Minister Holness implies that had he not been stopped by the Opposition's legal action, the Government would be some way in having a database by now. This is inaccurate. And the prime minister knows it. The Government's own White Paper, published October 2016, set out a five-year implementation schedule, which means that, even without the litigation, the first registrations would not even yet have taken place as the full infrastructural work would still now, in 2020, be at implementation stage.

Additionally, the Data Protection Act is still not yet implemented, and the prime minister is well aware that in order to have legislation dealing with data it needs a strong data protection platform. The last town hall meeting on data protection was May 2018.

A recent article caught my interest, 'Coronavirus could be used by authoritarian leaders as excuse to undermine democracy, experts warn' ( https://www.independent.co.uk/news/health/coronavirus-us-cases-government-pandemic-democracy-covid-19-a9407011.html). I am well aware what this article suggests and what it could mean for Jamaica. Had the challenge against NIDS not been brought, then an unconstitutional piece of legislation would have made its way into the statute books. In light of the subdued nature of the populace, this coronavirus climate is conducive to authoritarians taking the lead to introduce/implement policy/legislation which would otherwise be resisted, under the guise of “working for the benefit of Jamaica”.

Most Jamaicans do not appreciate the extraordinary impact of the form of NIDS that had been enacted by the Holness Administration and why it had to be struck down. One of the basic fundamental rights the constitution gives to all Jamaicans is the right to be left alone, as long as you are not breaking the law. What the NIDS, as implemented by the Holness Government wanted, was that the Government could enter your property and force you to register to a system whether you wanted to or not. This is unlike a voluntary tax registration number (TRN) or driver's licence system. Additionally, you could transact no business with the Jamaican Government, including buying or selling land, if you did not have a registration with the NIDS, but a foreign national, who did not have a NIDS registration, could purchase property without the need for one, effectively making Jamaicans less than second-class citizens in their own country.

Holness's current posturing on NIDS makes me nervous. When someone is wrong and continues to double down in their 'wrongness' — not realising how wrong they are, or have been — then hope is lost. His lack of acknowledgement that his failed attempt to introduce unlawful legislation to Jamaica was due entirely to the flaws of those who advised him, and rather incorrectly accuse others of being 'political', means he has not learnt and, as such, will make the same 'mistake' again. There is simply no way that 'every Jamaican' will have a NIDS entry. It is constitutionally impossible.

Fundamentally, every Jamaican has a constitutional right to be left alone. That Holness is saying he will act “within the law to ensure every Jamaican has a NIDS” is a contradiction in terms, and entirely nonsense. The best one can hope for is an 80 per cent uptake.

The UK tried a similar NIDS in 2016 and spectacularly abandoned it with the cost of destruction of the hard drives about the same cost of implementation.

Holness, how would NIDS have stopped the coronavirus? How would it have supposedly been “far easier for the Government to provide the individualised benefit system that would be to the benefit of all…”?

That is hogwash, and Holness knows this!

We have seen this coronavirus pandemic draw the country closer to work together. People from all spheres of society have pitched in. Big business has been amazing in taking the lead. Donations have poured in locally. Hotels have placed themselves at the feet of the Government. What the Government cannot now do is to act in an authoritarian manner, spinning any questioning into their actions as 'political criticism', and in his decision not to “waste a crisis” seek to undermine the democracy of this nation by revisiting and seeking to enforce unlawful legislation. It will not happen, Mr Prime Minister.

Jennifer Housen is a barrister-at-law (England & Wales) and attorney-at-law (USA (NY) & Jamaica). Send comments to the Jamaica Observer or jjhousen@gmail.com.

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