Editorial | Sensible move by Government

The Government has acted sensibly, not only in deciding against appealing the Constitutional Court’s rejection of its national identification law, but in its planned approach to crafting the replacement legislation.

According to the justice minister, Delroy Chuck, the new bill will be subject to a review by a joint select committee of both houses of Parliament, before which interested parties will be able to make recommendations. That is how it ought to have been in the first place.

The National Identification and Registration Act (NIRA) was to be the foundation of a compulsory national ID system that captured people’s biometric, biographic and demographic information. The law was rushed through the House in late 2017, apparently to meet the budget cycle of the Inter-American Development Bank, which provided a US$68-million loan for the system’s implementation. Despite scores of amendments made to the bill in the House and Senate during its debate, the court still held it to be unconstitutional.

The judges found that the scheme’s compulsory nature would, among other things, infringe on people’s constitutional right to privacy as well as citizens’ rights to equality under the law, given that Jamaicans living on the island would be required to have an ID card and number to access government services, when those living abroad wouldn’t.

This newspaper believes, as we have said before, that the court’s reasoning was jurisprudentially unimpeachable. We would, therefore, support a challenge only for higher courts to confirm the Supreme Court’s position that the Oakes test, developed by the Canadian courts, is the standard for determining when, and how, Government can infringe rights guaranteed in the 2011 Charter of Fundamental Rights and Freedoms. When these rights are infringed, Government is bound to prove that the action was “demonstrably justified in a free and democratic society”.

CONSENSUS IN THE SOCIETY

Mr Chuck indicated that some in Government hold that there are appealable issues in relation to the court’s ruling on NIRA and what, in relation to the act, would be “reasonably justified in a free and democratic society”. He didn’t say, however, whether this belief included the court’s use of the Oakes test, rather than the old starting point for interpreting the Constitution – the presumption that the legislature acts in good faith and with an understanding of the needs of the society.

The uncertainties harboured within the Government notwithstanding, the administration decided not to appeal the ruling “because we consider it very important that we should proceed as quickly as possible to have a NIDS (national identification system) bill”.

The good thing is that there is consensus in the society – including the political opposition, who challenged the constitutionality of NIRA – on the need for some form of single national ID.

However, the perceived benefits from any such system, such as the system being a buffer against societal informality, and Jamaica’s integration to the digital economy, can’t be pursued to the detriment of constitutional rights and freedoms. Tolerance for infringements in the pursuance of some presumed greater good, as citizens of authoritarian countries will testify, is often the start of the erosion of democracy. So, efforts to create a system that delivers on the goals of the Government must be matched by respect for fundamental rights and freedoms.

At the same time, we hope for a case that will provide for the higher court’s confirmatory ruling on the application of the Oakes standard.