NIDS ruling a victory for disorder

Dorlan H Francis

Sunday, April 21, 2019

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The recent ruling by the Constitutional Court has triggered a robust debate with some people behaving as if the ruling was Solomonic in nature. It was not. It was a continuation of some questionable rulings by the courts of Jamaica. This ruling has caused me to wonder about the intellectual depth of Jamaica's judiciary and the rigour with which matters of national importance is deliberated and decided.

Before I go further, let me make it abundantly clear that I have the utmost respect for our three branches of government:

* The Legislative Branch, which is made up of the Parliament — includes the House of Representative (the Lower House) and the Senate (the Upper House). This branch makes the laws.

* The Executive Branch, which is constituted by the prime minister and his Cabinet ministers. They are responsible for making and seeing to the implementation of policies.

* The Judiciary, which includes the Privy Council (UK) — the highest court — the Court of Appeal, the Supreme Court, and the magistrates' court. They are responsible for the interpretation and the enforcement of our laws.

Both the legislative and the executive branches are the subjects of withering criticism, but it seems as if some people are afraid to criticise the judiciary. People should understand that when one disagrees with a court ruling it does not mean that one is disrespecting the courts. And when one criticises a court ruling one is not being contemptuous of the court. It is in that spirit that I will be criticising the courts, because I believe the courts need to brush up on the judgements they are making.

The 'Senate letters' saga was badly decided. That ruling clearly did not take into consideration the unique nature of Jamaica's Senate which was proposed by Norman Manley, and essentially requires the Opposition senators to vote as “one”. The ruling giving senators “independence of thought” is contrary to the original intent of the careful design of the Jamaican Senate. The Opposition gets to name eight senators and the Government names 13 in the 21 member body. To reach the super majority of two-thirds, one Opposition senator must vote with the Government. But since the Opposition senators must vote as one, then for a Government Bill to get Opposition support, the entire Opposition must be in agreement with what the Government is doing.

If an Opposition senator votes against a Bill as a mark of protest and/or one or more Opposition senators vote for the Bill, that is not a problem. The real problem is when the Opposition wishes to vote against a Bill, but a rogue senator, on a frolic of his or her own, chooses to vote with the Government. That is the pathway to constitutional dictatorship.

The Senate letters ruling put a mockery to the careful construct of the Jamaican Senate, and has opened the door that could enable a constitutional dictator in Jamaica the same way the German people ended up with Adolf Hitler. Hitler got his dictatorial powers from the Enabling Act voted into law by the German Parliament.

On the heels of the badly decided Senate letters incident comes the national identification system (NIDS). If this ruling stands then it could make the desire to create an ordered society an elusive dream. That the desire to incorporate in the NIDS Act the latest technological advancements in biometrics would have infringed the rights of Jamaicans was unquestioned. What the court should have determined was whether those infringements of rights were “demonstrably justified”.

The argument from the ruling is that the case was not made that the invasion of privacy that would be occasioned by the NIDS Act was “demonstrably justified”. Yes, the attorney general could have argued more vigorously, but are we to believe that because she did not pound the desk and hyperventilate that was the reason the three learned justices ruled the way they did?

When Justice Bertram Morrison imposed a combination of consecutive and concurrent sentence on a convicted multiple murderer was this at the request of the prosecution pounding the desk? Or was it the brilliant judgement of a learned judge who was cognisant of the heinous nature of the murders that were committed, and the desire and expectation of a society which yearned for a punishment that would fit the crime?

The Constitutional Court, scouring the world, especially the countries of the Commonwealth, for precedence was not comforting. Are we to believe that we are not capable of pioneering judicial determinations? Can't we set precedents for the world to follow? They say all politics is local. Are not laws supposed to be local too and designed to satisfy local challenges? Does India suffer from the same level of “bandoolooism” from which Jamaica suffers? Does India have about one-third of its population living in informal settlements with no fix and determinable addresses? Does India have the same level of difficulty clearing up crimes as does Jamaica? When a police officer gets the description of an offender by the name of Johnny Trouble and finds a person matching the description and apprehends him, only to be told by the suspect that he is Johnny B Goode, then what?

What the court should have used as its guide was the way the Americans responded to the unprecedented and outrageous acts of September 11, 2001 (9/11). In the land where the constitution is King and the civil liberties of its citizens' sacrosanct the Americans, by overwhelming majorities in both Houses of Congress, passed the USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act. This Act passed the Senate with a vote of 96 to one, and it passed the House of Representatives with a vote of 357 to 66.

Section 215 of that Act was alleged to violate the privacy protection of the Fourth Amendment because it permitted “warrantless searches”. Section 213 allowed for “sneak-and-peek” searches. Section 218 allowed the Federal Bureau of Investigation to conduct surveillance of US citizens without showing probable cause of criminal activity. Section 505 was alleged to violate First Amendment rights by authorising searches based on First Amendment activities and imposed gag orders without requiring any form of judicial review. Those were just some of the many alleged violations of individual rights.

That is what was done in the “Land of the free and the home of the brave”. For our judges to come and pontificate as if the invasion of privacy and the violation of rights in furtherance of a better and safer society is tantamount to the taking of life, was frightening. The ruling was weak and was a victory for disorder and those who wish to live in the shadows of society. The ruling reveals an inferiority complex, which suggests that we should not be the first to do anything bold. We will only follow where others lead and we will do so selectively, probably to satisfy political designs.

The Government should not water down the NIDS Act to seek compromise. The Act must be mandatory, otherwise it will be a useless construct. The NIDS must incorporate as many of the technological advances in biometrics to ensure that the ID is as tamper-proof as current capabilities can make it. Before the Government bows it should go to the people to seek a constitutional amendment. Jamaicans do not only want prosperity, they crave good order too.

Dorlan H Francis is a personal financial adviser and author. Among his books is The Economic and Financial Crisis of 2007 - What Caused it : How to Avoid a Repeat. Send comments to the Observer or dhfken@hotmail.com.


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