The PSOJ, NIDS and the Constitution

THE PRIVATE Sector Organisation of Jamaica is in danger of getting badly wrong, conceptually and philosophically, its ideas about the Constitution, whose primacy, and the rights and freedoms guaranteed therein, the PSOJ apparently believes, should be capable of being negotiated away by political parties.

That is the sense left with many people, including this newspaper, when the PSOJ’s spokespersons highlight the benefits to be gained if Jamaica instituted a national identification system (NIDS), and of the folly of the opposition People’s National Party’s (PNP) successful challenge of the law upon which the ID scheme was supposed to rest.

The latest articulation of the PSOJ’s flawed, and certainly less-than-nuanced, appreciation of the failure of the Government’s attempt to implement NIDS is to be found in a peroration on the subject by Christopher Reckord, the head of the organisation’s innovation and digitations transformation committee, in an interview with this newspaper.

According to Mr Reckord, the idea of a national identification system that uniquely follows an individual from birth to death was originally promoted by a former leader of the PNP, the late Michael Manley, more than 40 years ago. While the concept has had cross-party support, he argued, the project has been subject to stops-and-starts, because “everyone wants to do it themselves”.

“If they JLP (Jamaica Labour Party) looks like they are ahead, they (PNP) are going to throw every bomb into the thing,” Mr Reckord said. The metaphorical bomb, in this case, was the court case against the National Identification and Registration Act, which was held to be deeply flawed.

Under the law, as it was framed, the Government intended to establish a database of demographic and biodata of Jamaica’s residents, who would be given an identification card, with a unique number, without which they couldn’t access government services, or do business with the Government.

Three judges of the constitutional court unanimously agreed that the mandatory nature of the law was contrary to the right to privacy guaranteed by the Constitution. Further, given that Jamaicans living abroad wouldn’t be subject to the law, but would have access to government services, the legislation infringed the right of citizens to equality before the law. More critically, the Government failed, the court said, to reach the threshold required by the Constitution that breaches of the basic law had to be “demonstrably justified in a free and democratic society”.

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Laws similar to the one ruled to be unconstitutional in Jamaica have recently been struck down, in whole or in part, in a number of jurisdictions, including in India, to which the Jamaican court made substantial reference, and, more recently, Kenya.

The PSOJ, and others, have sought to cast anyone who raises questions about the NIDS, other than the politicos scoring points, as people who either have something to hide, or Luddites afraid of embracing new ideas, or technologies and the value that will flow from them. That, of course, is to be ignorant of, and blind to, the big, conceptual frame.

Constitutions, as the supreme law, establish the context, and framework, within which other laws fit and, thereby the foundation upon which the State sits and functions. In Jamaica’s case, that is a liberal democratic state.

If parliaments, or worse, political party leaders, can play fast and loose with constitutions, without the authority of the courts to pronounce on those actions, then fundamental rights and freedoms are no longer sacrosanct. In that event, the pathway is assured for the ascent of authoritarians and autocrats.

The rights that go first, in these circumstances, are those belonging to persons without the voice, or resources, to challenge the erosion. Soon, even those of persons who believe themselves to be insulated are taken. Indeed, it is to the credit of Jamaica’s government that it appreciated the logic of the court’s ruling that the law, in its current form, was unconstitutional – as it would have been if Mr Manley had brought the same provision four decades ago. The Government is seeking to rewrite the legislation to fit within constitutional principles.

Perhaps it would be useful for the PSOJ to establish a committee on the Constitution and its application to business, and apply the ideas there from not only to its pronouncements on NIDS, but to the use of states of emergency and rights of ordinary people thereunder.