Prof Errol Miller

A National ID represents official verification that the person has constitutional rights and privileges in a nation. Such identification is increasingly a matter of public, private and personal importance in the digital age. Personation has a very long history. Probably the most famous instance being Rebecca’s successful tutelage of her son Jacob to deceive his father Isaac, resulting in enmity between his brother Esau and their descendants.

The first attempt of a Jamaican National ID was mooted and related to the establishment of the Electoral Advisory Committee (EAC) in 1979. I am not sure why this first attempt came to naught. The second attempt arose in the late 1990s when the EAC successfully applied biometric, biographic and demographic data to register voters, instituted continuous voter registration, and issued a Voter ID Card for voting in elections. This second attempt at a National ID failed principally for financial reasons. NIDS is the third attempt. It managed to attract the finances needed but has failed on constitutional grounds. The challenge before us is to ensure that a fourth attempt succeeds.

I had not seen the NIDS Act and was completely surprised that the Supreme Court had ruled the Act to be unconstitutional. I therefore went to Supreme Court Website and read the judgement by Chief Justice Mr. Brian Sykes, Justice Mr. David Batts and Justice Mrs. Lisa Palmer-Hamilton twice. Several of the legal constructs, especially those related to presumption of constitutionality, severance, proportionality and privacy are beyond my layman’s conceptual understanding. I therefore leave it to members of the learned profession to debate the legal substance and nuisances of the Judgement.

As a layman I was hooked from the very first sentence of the Judgement: “Dissent has had a troubled history.” I could not put it down. The Judgement is:

1. Breath-taking in its scope and scholarship
2. Brilliant in its analyses of sources cited and positions taken by counsels on both sides
3. Brutal in its rejection of spurious evidence and errant arguments
4. Beautiful in the clarity of its prose
5. Bold to go beyond the complaint of the plaintiff and to strike down the entire Act
6. Boisterously belligerent in its stated adherence of the doctrine of the separation of powers and the role of the judiciary in a free and democratic society.

I am in total agreement with the Prime Minister that the way forward is not by appealing this judgment. From my perspective the Supreme Court ruling has saved the prospect for a Jamaican National ID because it has opened the door for a successful fourth attempt, which will not be achieved by fixing the NIDS Act.

During 2018 I had attended a Townhall Meeting at Bethel Baptist Church when a panel of NIDS officials outlined what NIDS was about and answered questions. Having listened, I concluded that this NIDS initiative would prove to be unimplementable. NIDS would join the long list of laws that could not be enforced because of sustained resistance and non-cooperation.

NIDS was:

• Too omnibus in scope and not focused principally on a National ID
• Too intrusive in the biographic, biometric, demographic, social and economic data demanded;
• Draconian in approach;
• Colonial in mindset: treating people as subjects and not citizens with rights
• Willfully ignorant of the work and achievements of the Registrar General’s Department and the Electoral Commission;
• Almost casual in its proposals for accessing the database that would be created.
• Manifestly naive about the consequences of the planned overreach of the State
• Unrealistically ambitious in its timeframe for implementation
• Needlessly expensive because of the duplications that would be involved
• Myopic given the galloping developments in artificial intelligence, robotics and cloning.

The Supreme Court has stated that demanding biometric data from minors cannot be justified. This rules out the population under 18 years. This is fatal to NIDS but not to a National ID. Barbados has long had a National ID which includes minors but does not require biometrics. The Barbados system is closely linked to the system of registering births and deaths and is worth looking at with respect to providing minors with a National ID.

With respect to the population 18 years and older, the Supreme Court has ruled that compulsory demand for biometric data from all citizens and residents is an unconstitutional invasion of privacy. This is fatal to NIDS because without compulsion it becomes a duplication of Voter ID which will be very difficult to justify.

Since 1997 over 2,000,000 Jamaicans, and Commonwealth citizens residing in Jamaica for over six months, have voluntarily provided biometric information to the Electoral Office. Studies of the EAC comparing voter registration data with census data, gathered in the census year, showed that voter registration increases progressively from just over 50 per cent among 18-year-olds to more than 90 per cent of each age-cohort 30 years and older. This means that more than 80 per cent of Jamaicans over 18 years possess voter id cards while only about 50 to 60 percent vote. This is empirical evidence that the Voter ID Card is sought for purposes other than voting. Indeed, because of its authenticity and quality, the Voter ID Card has become the de-facto national ID of Jamaica.

The way forward to a National ID is two-pronged. First, use the funds that have been secured to implement NIDS to support, strengthen and extend the work of the Registrar General’s Department to institute a National ID beginning with all infants from birth to five years old and modernize the equipment and technology used to capture biometric data by the Electoral Commission and support its measures to promote and encourage voter registration among young adults 18 to 29 years old. Second, deploy legal resources to ensure that the legislation that permits the Electoral Commission to collect biometric data for the purpose of voter registration complies with the Jamaica Charter of 2011. This is vitally necessary given that the use of biometrics has been one of the pillars by which the electoral system and Jamaican democracy have advanced significantly over the last 20 years.

In 10 to 15 years, this two-pronged approach could lead to the  integration and merging of the official National ID into the Voter ID system, the current de-facto national ID, and in the process further consolidate the advances made by the electoral system and Jamaica as a free and democratic society.