Laws of Eve | NIRA – disqualified ... a false start

The judgment of the Full Court in the case of Julian Robinson v The Attorney General for Jamaica [2019] JMFC Full 04 was less surprising for its content than for the novelty of the circumstances surrounding its delivery. In unprecedented fashion, the Honourable Chief Justice provided a summary of the 309-page-long unanimous decision striking down the National Identification and Registration Act (NIRA) in its entirety as being unconstitutional via a live audio telecast. Perhaps of equal significance is the fact that the hearing, which lasted three consecutive days, was concluded on October 24, 2018 – less than six months before the judgment was delivered.

I dare say that a new standard is being set and this is evidence of leadership by example.

Simply put, NIRA was intended to establish and regulate a national identification system through compulsory enrolment. While all laws are presumed to be constitutional, that presumption is rebuttable; and this is what is at the heart of this case. The claimant asserted that NIRA violated the Constitution, and he succeeded.

Let me admit that I was not able to read and digest all 309 pages in time to write this article, but I read the following important parts:

(1) The rights and freedoms guaranteed by Jamaica’s Charter of Rights and Fundamental Freedoms are at the core of the Jamaican society’s foundation as a free and democratic [nation]. This necessarily means that a high standard of justification must be established before rights and freedoms are abrogated, modified, or trespassed on once the claimant shows, prima facie, that there has been a violation of his or her rights or freedoms.

(2) The Charter of Rights is based on “the inherent dignity of human beings”, which embodies the right to privacy – “privacy of the person; informational privacy, and privacy of choice”.

(3) A law that abrogates rights will be deemed unconstitutional unless it is “demonstrably justified in a free and democratic society”. The question is not whether it is justified in Jamaica.

(4) We are reminded about the manner in which the three arms of Government (the Executive, the Legislature and the Judiciary) must function (at paragraph 266). “It is ... the remit of the Executive to develop policy. However, policy must not run afoul of the Constitution. The Constitution is the law against which all other laws are judged. It is the duty of the court to determine if the provisions of Acts of Parliament [promulgated by the Legislature], designed to implement policy, are lawful. The court, when doing so, is not moved by the virtue of the policy.”

(5) The Court found that the following sections of NIRA violated the Charter of Rights:

(i) 6 (1) (e) and 43 (1) – Insufficient safeguards against misuse and abuse of the data collected. No independent oversight body to audit and take necessary action.

(ii) Section 20: The compulsory taking of biographical and biometric data violates privacy rights.

(iii) Section 39: Inadequate safeguards to prevent misuse and abuse of database to which a third party will have access.

(iv) Section 41: There is unequal treatment in compelling Jamaican and ordinary residents to produce identifications when accessing goods and services from public bodies when foreigners do not have the same legal obligation.

(v) Section 60 and the Sixth Schedule: There is violation of the right to hold a passport, since they make a national identification a prerequisite to holding a passport.

(6) Ultimately, although some aspects of NIRA did not violate the Constitution, “... in some instances, the offending provisions [of a statute] are so bound to the rest of the statute that what is left cannot survive. Where this is the case then the entire statute is declared to be invalid.”

NIRA has been struck down and, unusually, costs was awarded to the claimant. The question is, “Will a new law take NIRA’s place?”

- Sherry-Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.