Strange ideas about constitutional gov’t

IF YOU didn’t know better, you might have concluded that Prime Minister Andrew Holness was having another, and personal, shot at litigating the NIDS case, or attempting, from the margins, to influence the ruling of the three judges who heard the Opposition’s constitutional challenge of the National Identification and Registration Act his Government passed a year ago. Other cynics might claim that through his utterances, Mr Holness is not only attempting to delegitimise the arguments of critics of the national identification law, but the decision of the high court judges, should they find against it.

This newspaper, however, gives the PM the benefit of the doubt. We prefer to believe that his remarks last weekend, at a governing Jamaica Labour Party (JLP) conference in West Kingston, were merely off the cuff, delivered with political heart, absent of deep thought or reflection.

USE OF NIDS

Under the proposed National Identification System (NIDS), anyone resident in Jamaica will be obligated, by law, to register for an identity card, which will require persons to provide biometric information – the specifics of which are yet to be determined – as proof of identity. Failure to register for a NIDS ID will not only be a criminal offence, but preclude people from accessing government services.

The Opposition People’s National Party (PNP), however, in its challenge of the law, argues that it infringes on people’s constitutionally guaranteed right to privacy, equality before the law, guaranteed right to a passport, and that the Government has made no case that the infringements are necessary for the maintenance of a functioning democracy. The Constitutional Court, which heard the case last month, is to rule in the first quarter of 2019.

The administration initially held that NIDS, given the propensity of Jamaicans to go by several names, thereby shrouding their real identities, would be an important crime-fighting tool, limiting the ability of outlaws to hide behind pseudonyms and alternative personae.

But the Government has also posited that the system is vital to enhancing economic transactions and financial intermediation – a theme pursued by Mr Holness in his West Kingston speech, insisting that it was time for a new generation of Jamaicans “who understand what the future is going to be like (and) appreciate where technology is taking us” to gain ascendancy from those whose thinking “has kept us backward and poor”.

Noting that people share their information through their use of electronic devices, engagement of social media, and in business transactions, Mr Holness appeared to articulate a new philosophical construct for privacy and the basis of the individual’s right to it.

He said: “Anonymity is not privacy. Privacy is when the Government sets rules and regulations about what information cannot be shared or can be shared, under what circumstances, and defends those rules with integrity.”

We make two observations. One is that people, if they so wish, can opt out of a technological society, whatever the cost to themselves. But second, and more profoundly, on the basis of Mr Holness’ argument, it would seem that privacy is not, as supposed by the Constitution, a fundamental or inherent right to be abridged in very narrow circumstances. Rather, it is what is determined by a government once it polices the rules it establishes “with integrity”.

The court may well determine the NIDS law to be constitutional. But that would be on the basis of the court’s determination that the law doesn’t impinge on guaranteed rights and freedoms, on the judges’ perception of the intent of the leader and how well he polices his undertaking. The Constitution, in other words, is central.

In liberal democracies, laws are expected to fit within the frame of the Constitution, not the other way around. Were it otherwise, institutions would give way to the all-knowing leader. And we know where that gets us.