The Faculty of Law at the Mona Campus of the University of the West Indies (UWI) has warned that despite being a new Bill, the National Identification and Registration Act (NIRA) (2020) still contains some of the privacy concerns that saw it being struck down in the Constitutional Court in April 2019.
At that time, the Full Court, comprising of Chief Justice Bryan Sykes and Justices Lisa Palmer and David Watts, sided with former People’s National Party General Secretary, Julian Robinson, that certain aspects of the controversial legislation breached the rights of Jamaicans to privacy as is guaranteed by the constitution.
Specifically, the faculty has warned about the constitutionality of capturing the facial image of individuals and the collection of fingerprints under the new Bill.
“The latter has the added dimension of requiring an individual to place his or her hands into a specific apparatus for the collection of fingerprints. The mere storage of identity information in electronic databases also demonstrates interferences with individuals’ right to privacy,” said the law faculty in a written submissions to the Joint Select Committee of Parliament examining the new Bill.
“In some respects, the Bill appears to have amplified some of the concerns by delineating specific examples of some of the concerns raised by the court in Robinson,” the law faculty added. The new Bill was tabled in the House of Representatives by Prime Minister Andrew Holness late last year.
According to the law faculty, the Bill has the potential to cause privacy interferences by different means. It pointed to what it said are “clear interferences with the right to privacy under the constitution”.
Added the faculty: “It should be borne in mind that once a constitutional right is interfered with or abrogated, such interference must be justified.”
Continuing, the law faculty said the authentication/verification process, in light of the meta-data created by such a process (the existence of this data being recognised under the Bill), creates interferences by creating datasets with respect to the activities of individuals, to the extent that that individual uses his or her national ID card or national ID number in the pursuit of goods or services.
It pointed to the memorandum of objects and reasons of the Bill, which it said highlights secure identification as the key policy driver for the implementation of the NIDS to be established under the Bill.
“This will, therefore, be treated as the justification intended to be relied on for privacy interferences,” the law faculty stated.
It has also raised several questions, including:
- When will certain information be required and when will it not be?
- Is it simply a matter of certain information being required if it is applicable to a particular individual, or is the authority being given a discretion in this regard?
- Is the delineation to be left to policymaking by way of subsidiary legislation?
The law faculty is contending that the formulation is “imbued with ambiguity”.