Editorial | NIDS ruling breaks new ground

The Supreme Court’s comprehensive slap-down of the Government’s national identification law has implications beyond the need of the Holness administration to reflect deeply on its future approach to the formulation of laws. For it raises questions, too, about our commitment to the Constitution.

Further, another critical but, thus far, overlooked feature of the ruling is the seeming willingness of the court, under Chief Justice Bryan Sykes, to take risks and break new ground in its rulings, thus inviting challenges to them. In this case, the court acted to expand the rights of individuals over those of the presumed policy interests of the State.

The National Identification and Registration Act, on which a three-judge panel ruled last week, would have required residents of the island, in order to do business with or gain benefits from the State, to acquire unique identification numbers and cards loaded with biometric, biographical, and demographic information, to be matched against that stored in a national database as proof of identity.

The administration, despite concerns raised in several quarters about the legislation’s potential for infringing on people’s rights to privacy and equality, insisted that it was necessary to combat a Jamaican tendency towards informality, to improve the Government’s ability to develop data-driven policy, and to enhance the island’s ability to participate in the digital economy.

On the basis of urgency, including the need to meet the Inter-American Development Bank’s funding cycle for a US$68-million loan for the project, Prime Minister Andrew Holness rejected the Opposition’s proposal that the law be subject to hearings conducted by a joint parliamentary committee.

But, as we argued at the time, those mediating those concerns couldn’t “be pursued to the sacrifice of others. And certainly not the prejudice of constitutional order”.

We maintain that position, aware of those who, out of political partisanship, have criticised the judgment, as well as those who hold to the potential efficacy of the law and, therefore, find the ruling inconvenient and hope for expedient fudge. If we make those compromises, not only the specific rights and freedoms, but the fundamentals of our democracy will be in jeopardy. Governments will be able to play fast and loose with our Constitution.

In this regard, Chief Justice Sykes and Justices David Batts and Lisa Palmer-Hamilton have shown courage and, in a sense, activism in seeking to ensure that the Constitution delivers what it promises to the people – to the point of reversing themselves on aspects of the law.

A HIGH BAR

As Chief Justice Sykes stressed in his ruling, the traditional presumption was the constitutionality of statute and a high bar for their invalidation, on the basis that legislators understood and appreciated the needs of the people and acted with integrity and the solemnity of the oaths of office. It was a high bar, therefore, for claimants to prove laws were unconstitutional.

However, as the chief justice noted, with Jamaica’s 2011 Charter of Fundamental Rights and Freedoms, which constrains the Parliament from passing laws that may infringe on the Constitution unless they can be proven demonstrably justified for the functioning of a free and democratic society, the new test for constitutionality, established by the Canadian Supreme Court in the Oakes case, is proportionality.

But the Supreme Court, he said, is yet to “depart completely from the traditional approach laid down in cases decided before the new charter, (and) took what can now be seen, in retrospect, a timorous approach to the new provisions. The court was trying to ride two horses at the same time; an impossible feat”.

He specifically referred to a 2012 case involving police officers questioning some of the powers of the Independent Commission of Investigations, in which he was one of the panel of judges who ruled against the police.

Said Justice Sykes: “The time has now come for the Supreme Court to take a clear and unambiguous position on the matter.”