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JAMAICA | Supreme Court rules NIDS unconstitutional, declares law null and void

Featured Chief Justice Brian Sykes said said the collection of biometric data would impact information privacy. Chief Justice Brian Sykes said said the collection of biometric data would impact information privacy.
KINGSTON, Jamaica, April 12, 2019 - Jamaica's Andrew Holness administration on Friday experienced a major push back after the  country's Supreme Court declared unconstitutional, the National Identification Act (NIDS) which was intended to provide a comprehensive and secure structure to enable the capture and storage of identity information for all Jamaicans.

A panel comprising Chief Justice Bryan Sykes, Justice David Batts and Justice Lisa Palmer Hamilton ruled that the the mandatory requirement of NIDS for persons to submit biometric information is a violation of the right to privacy, which is guranteed by the Constitution.

The chief justice said it was the court's decision for the law to be struck down in its entirety because those aspects which did not infringe on the Constitutional rights of citizens were not enough to stand alone.

“Having declared some of the provisions in violation of the charter, we are of the view that what was left could not stand because...it was so bound up with the other provisions that there is no way it could survive by itself... and the other route was that what was left would still be in violation of the constitution... And so we are of the view that the National Identification and Registration Act is to be declared null and void and of no legal effect.”

The challenge to the Act was brought by PNP General Secretary Julian Robinson, who argued that certain provisions of the law infringe some of his Constitutional rights. Robinson contended that various sections of the act are unconstitutional, and operate as violations to the rights of the citizens of Jamaica.

The full court panel ruled that aspects of the NIDS Act were in violation of the right to privacy. The Chief Justice said the collection of biometric data would impact information privacy.

“So the legislation here in Jamaica makes provision in some instances for iris scans. The literature tells us that you can glean information about a person's state of health from an iris scan, you can determine almost what illness they are suffering, what is the likely medication they are on, and other things that are very personal and private to them. So it is not just simply at matter of we are just collecting biometric information to be used for identification; there are other implications of that, so hence the question of informational privacy loomed large in our considerations,” he noted.

He added that the protections under the Act for the storage and safety of information while in the possession of the State were inadequate and is therefore a violation of the right to privacy.

Justice Sykes pointed out  that the mandatory requirement of the NIDS Act deprives the individual of choice, arguing that an individual who refuses to participate in NIDS is at risk of criminal prosecution and will have a conviction although it would not be recorded.
 
In a statement issued by the Office of the Prime Minister, the Government said it will spend time carefully reviewing the judgment, after which a fulsome response will be issued.

In the meantime, PNP General Secretary Julian Robinson said the court ruling was a wake up call for Parliamentarians to ensure that laws passed are consistent with the charter of rights. He added that the ruling underscores the importance of acknowledging the right to privacy.

The Chief Justice disagreed with Attorney General Marlene Malahoo Forte's submission that the constitutional challenge of the National Identification and Registration Act, more commonly called the NIDS law, was premature because it was not yet in effect.

 He noted that the charter of rights makes provision for any litigant to seek a constitutional remedy before a violation occurs.  "All the legislative steps had been gone through. It was, on the face of it, passed according to the requisite Parliamentary procedure. The bill became an Act when it received the Governor General's assent, just that it had not yet been brought into force. It's what we would call an appointed day statute, which will come into force at any point," the Chief Justice explained.
 
The National Identification System (NIDS) Bill was passed in November 2017 amidst much protestations and an eventual walkout by Opposition Senators who, among other things, argued that it was being rushed through Parliament, and should have had the benefit of being referred to a joint select committee for a fullsome examination.
 
The Act was passed with 168 amendments, and Implementation was slated to begin next year. Each citizen would be provided with a nine-digit National Identification Number which they will have for life.
Last modified onSaturday, 13 April 2019 02:28
  • Countries: Jamaica
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