Editorial | The new NIDS and the Constitution

The Government, we hope, is not about to recommit its mistakes when it rushed through the law for a National Identification System (NIDS) which the court, earlier this year, held to be unconstitutional. The upshot: The Holness administration was forced to put on hold its plan to have all persons living in Jamaica acquire a unique identification number and ID card, on which would be stored biometric and demographic information. If the law hadn’t been thrown out, persons who didn’t have this card wouldn’t be able to access government services, while failing to acquire it would be a criminal offence, although conviction wouldn’t leave a criminal record.

With the passage of seven months since the ruling by the Constitutional Court, it seems obvious, unless it has a change of heart on its earlier intimations and finds a gaping legal loophole, that the Government has abandoned any thought of appealing the judgment.

That, however, doesn’t mean that the idea of NIDS is dead or that the administration is doing nothing about implementing the scheme in some form. In fact, the evidence suggests that it has, again, quietly begun to do a lot.

Last week, for instance, the administration, without fanfare, advertised three senior posts critical to the implementation of the project, which is being funded by a US$68-million loan from the Inter-American Development Bank (IDB).

The apparently most senior of these is a project coordinator who will be assigned “to plan, coordinate, monitor and report on activities at the Registrar General’s Department (RGD), in line with the NIDS Project Implementation Plan, as well as to identify and make recommendations on where the delivery of results against plans can be improved”.

The others call for a business process and documentation officer, whose job will be to “work with vendors to prepare detailed business processes for the planned NIDS and civil registration modifications”, and a senior media officer to “assist the public-relations and marketing manager with the execution of the NIDS communication strategy”.

Obviously, we will soon, again, be hearing a lot about NIDS and its benefits for transforming Jamaica to a modern, digital economy, which will make it easier and more efficient to do business. Indeed, that message is already pervasive among some private-sector leaders, for whom, extrapolating from some of their statements, the absence of NIDS is the primary impediment to robust growth.

A bit of concern

Our concern, however, is that in these discussions the constitutional issues raised by the court are either glibly glossed over or not mentioned at all, which have caused the cynics to believe – quite wrongly, we hope – that there is a willingness to surrender or trade constitutional order for perceived economic gains. If that position persists anywhere, it would, we believe, be shared by the Government. For, it isn’t one or the other.

The Constitutional Court held that the legislation it struck down would have, given its compulsory nature, infringed on people’s constitutionally guaranteed right to privacy, as well as to equality under the law, without the Government proving that these infringements were “demonstrably justified” for the operation of a democratic society.

It is not clear how the Government intends, with its revised arrangements, to clear this hurdle, but it should begin where it ought to have started in the first place – with a serious conversation with the Jamaican people and engagement with the political Opposition.

The last time, over the objections of many people, the Government hurtled the NIDS legislation through Parliament in order, it emerged, to meet an IDB financing cycle. That haste resulted in today’s conundrum. Prime Minister Andrew Holness should ensure that the mistake isn’t repeated.

Further, it is not sufficient for private-sector leaders and the bosses of multilateral institutions to highlight the expected economic gains of NIDS and trifle with the Constitution as though it’s an oddity whose trampling is merely the collateral damage for development.

If the Constitution is a hindrance, marshal the support to amend it. Or, today, it might be NIDS; the next day, the authoritarian in ascendancy.