Mr Moreno, NIDS and the Constitution

THE CONSTITUTIONS of functioning democracies are not to be trifled with. If they can be changed at whim and the processes they delineate ignored, the rule of law is imperilled as are the rights and freedoms they guarantee to citizens. And there from democracy faces grave danger.

Happily, this is not a jeopardy that Jamaica has confronted in its 56 years of Independence. Its institutions have been stressed, bent, and have sometimes creaked, but always, they have found a way to right themselves. That, in large part, is because of our adherence to constitutional order and a belief in, for all its flaws, the sanctity of the courts.

Abiding by constitutional and legal process doesn’t always allow for the speediest, and, some will argue, the most efficient management of governmental affairs. For democracy is often contrarian. But as the saying goes, no one has as yet invented a better form of government.

We make these observations against the back of the remarks in Kingston last week by Luis Alberto Moreno, the president of the Inter-American Development Bank (IDB), urging Jamaicans to get on board the Government’s proposed National Identification System (NIDS), which is currently stalled in the courts.

“... What I would say to the Jamaican people is, this is the road to modernity, this is the road to jump into the 21st century, and if you want your Government to push along and move away from being in the 19th century in many ways, this is the way to do it,” Mr Moreno told this newspaper.

It is quite possible that Mr Moreno is right. But that truth can’t be pursued to the sacrifice of others. And certainly not to the prejudice of constitutional order.

NIDS is to be a database of all residents in Jamaica, with each individual having a unique identification number and his identity verified by some form of biometric signature. Once the system is in place, people won’t be able to do business with the Government, and in some cases, access state services, without being registered and having a NIDS number.

Mr Moreno’s institution is providing Jamaica US$68 million to pursue the project. To ensure that the project was compliant with the IDB’s funding cycle and didn’t have to wait another programme period for approval, the Government accelerated the passage of the NIDS bill through Parliament towards the end of 2017, against the arguments of the Opposition, which felt that the law demanded broader and more robust debate.

ECONOMIC BENEFITS TO BE HAD

The Government has mounted an education campaign on the benefits of NIDS, but the People’s National Party (PNP) has taken the law to court, questioning the constitutionality of several of its provisions, including its mandatory application to all residents of Jamaica, while seemingly allowing citizens who live outside of Jamaica to do business with the Government without being registered or having the requisite ID.

Mr Moreno says he appreciates people’s concern about the Government “getting into their business”, but argues that there are economic benefits to be leveraged from having a digital identity registry. Which, really, is not the point at hand.

The delay in the implementation of NIDS is because there are questions about the constitutionality of elements of the law, which are to be arbitrated by the courts. That is a process that no one would want to leapfrog and which, we don’t believe, would be the case being made by Mr Moreno.

If the court determines no constitutional harm is being done by NIDS, we move on. If there is indeed a problem, there are ways to make the law compliant with the Constitution. Or, we can alter the offending provision. But, hopefully, not on a whim.