Editorial | NIDS: A collision of the right to privacy and the fear of crime

The possibility of giving the Government a bloody nose is no doubt among the incentives of the People's National Party (PNP) going to court over the proposed National Identification System (NIDS).

Approach to politics than disruptive street action, and presuming it goes all the way to the Privy Council, will settle the status of a law about which others, apart from the Opposition, have reservations.

In the event, if, or when, a national identification system is rolled out, it should be with certainty and less likelihood of taxpayers' money being wasted on adjustments and rejigs. In this regard, the parties should ask the courts to fast-track the hearings, not unlike when Edward Seaga, the then leader of the now-governing Jamaica Labour Party (JLP), inspired the challenge to legislation to end appeals to the Privy Council and establish the Caribbean Court of Justice (CCJ) as the island's court of last resort. The CCJ case, begun even before Parliament had debated and passed the bills, was completed within months.

The so-called NIDS law was problematic from the beginning, representing the classic case of increasing collision between the State's guarantee, and people's expectation of, the right to privacy in a liberal democracy and the erosion of that privacy in the name of security.

Globally, the State's concern is mostly about international terrorism. In Jamaica, the fear is primarily of domestic crime, especially homicides, which, at 60 per 100,000, is among the highest in the world. Unsurprisingly, therefore, when the Government began debate on the NIDS bill late in 2017, it framed it largely as a crime-fighting tool, which had to be pursued with urgency, in part because of the danger of the window closing on a US$65 million loan from the Inter-American Development Bank (IDB) to finance the project.

Unfortunately, the process didn't allow for the extended and rigorous debate of it and how the law, at implementation, would impact the privacy and fair-treatment rights guaranteed by Section 13 of the Constitution.

A fundamental concern of the Opposition is that the law, at Section 20, makes it obligatory for any resident in Jamaica to register for a national identification number, while at Section 41 it precludes receiving goods or services from government agencies in the absence of this number. The demographic and biometric information that may be demanded from a registered person would, not too long ago, be probably considered Orwellian, but might be differently interpreted in the context of the security concerns of the postmodern world.

Approach to debate

These important matters apart, this law again highlights an approach to the debate and passage of what is often legislation, of which critical elements slip through via the back door while no one is paying attention. In this case, the third schedule of the act not only lays out the wide range of demographic and biometric information that may be required for registration for an ID, but also amends several acts to make them part of the NIDS architecture, therefore making non-holders of the national ID ineligible for the services they cover. It is, in a way, reminiscent of the amendment to the Constabulary Force Act, changing the terms under which a constable can resign, but only discovered by the Police Federation well after the fact.

This legislative device is not new, neither is it unique to this administration, and the fact that its use may leave large swathes of people in ignorance is, in part, to be blamed on the Opposition, the press, civil society and interested groups for failing to pay sufficient attention. While we appreciate the efficacy of this approach to bills that affect numerous other laws, governments have an obligation not only to be transparent, but aloud about their implication.