Jamaica Observer Headline

The headline of the Jamaica Observer on Tuesday, April 30, 2019, shouted: “Cabinet Divided”. The gist of the story was that some members of the Cabinet favored appealing the Judgement of the Supreme Court that the NIDS Act is unconstitutional while others, including Prime Minister Andrew Holiness, favored of going forward by fixing the law. My reaction was in favor of the approach of the Prime Minister.

Personal Impressions of the NIDS Initiative

During 2018 I had attended a Townhall Meeting at Bethel Baptist Church where a panel of NIDS officials outlined what NIDS was about and answered questions. I have been a supporter of a National ID number. However, I concluded that this latest NIDS initiative would prove to be unimplementable because it was:

• Too omnibus in scope and not focused principally on a National ID number.
• Too granular 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 of the Registrar General’s Department and the Electoral Commission;
• Cavalier 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

Based on my experience Jamaicans of all walks of life and levels of responsibility were unlikely to comply with and provide the cooperation necessary for its success, even where the coercive power of the state is so openly invoked. We are a people schooled in resistance and not easily frightened by threats, even by the state.

I had not seen the legislation and was completely surprised that the Supreme Court ruled that the entire NIDS Act was unconstitutional. My immediate reaction was, good! We have chance to think again and be more realistic.

The Written NIDS Judgement

The Observer headline impelled me to go to the Supreme Court Website and read the judgement by Chief Justice Brian Sykes, Justice David Batts and Justice Lisa Palmer-Hamilton. Let me immediately acknowledge that several of the legal constructs, especially those related to presumption of constitutionality, severance, proportionality and privacy are beyond my layman’s conceptual understanding and is limited to grammatical meaning. I therefore leave it to members of the learned profession to debate the legal substance 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 venture beyond the complaint of the plaintiff and to strike down the entire law
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.

This is not advocacy for the beatification of Chief Justice Sykes, Justice Batts and Justice Palmer-Hamilton as saints of the Jamaican judiciary. Nor any suggestion that the Judgement should be canonized as scripture. Rather, it is the adulation of an elderly layman buoyed in spirit by clear evidence that current justices are worthy successors of the legal giants that preceded them. Our high courts appear to be in safe hands.

This seems to be a seminal judgement with which the members of the learned profession, information professionals, policy advisors and senior bureaucrats will have to contend with for years to come. It seems to have brought and applied the best available jurisprudence, especially from the Anglophone world, to this Jamaican case and then to advance Jamaican and Caribbean jurisprudence through its argumentation and ruling.

Omission of a Notorious Fact

My only problem with the Judgement is with respect to a legal term whose meaning I understand. This legal term is ‘notorious fact’. This is a fact that almost every adult is a society knows. It is notorious fact in Jamaica that the Electoral Office has been collecting and using biographic, biometric and demographic data for the purposes of identification and authentication. Yet this notorious fact is missing from the Judgement. It is not mentioned by the Plaintiff, nor the Defendant nor the esteemed Justices. The notoriety of this fact derives from the personal experience of every person who has applied to register to vote in Jamaica since 1997; public mock exercises in numerous communities across the country; frequent reports in the press, media and on-line; publications of the Electoral Commission; published reports of local and international observers of  Jamaican elections since 2002 and a book written by Mr. Ryan Peralto Sn.

The use of biometric and biographic information to identify persons is a principal component of the contested NIDS legislation. Paragraphs 230 to 246 of the Judgement, under the heading “The Nature of Biometric Systems’, review principles, procedures, experiences and decisions about the nature and use of biometric data in many countries across the world. The omission of this notorious Jamaican fact immediately attracted my attention. I refrain from any speculation of its omission but am obliged to comment Jamaica’s use of biometric and biographic information for identification and authentication because while it was not critical to the Judgement it is very germane to the way forward for a multiplicity of reasons.

Jamaica’s Record in Using Biometric Data for Identification

Jamaica was the first country in the world to use biometric data for identification of persons outside of forensic settings and in its general population. The idea arose in the Electoral Advisory Committee and Member Ryan Peralto, Chairman of the Jamaica Labor Party with the permission of the EAC, applied for and was granted the US patent for this technology. It was one of the first occasions that the US Patent Office granted a patent for an idea and not a device. The patent included all biometric characters although the application was for fingerprints. Professor Laurie Reid of the University of the West Indies chaired the Technical Committee for applying this technology to the electoral process and Mr. William Chin See, QC Chairman of the EAC played a leading role in crafting the Legislation for the use of this technology in the electoral system.

When the Electronic Voter Identification and Ballot Issuing System was first used in a by-election in 2003, Jamaica led the world in the using biometric characters stored in a database to be matched with live biometric features of a person and on a match, issuing an action, a ballot. The United States was first to use this paradigm at its borders and first employed the same company that the EAC had contracted through international tender to implement this system in Jamaica’s electoral system.

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. Jamaica has had continuous registration of voters in 1998 and produces two Voters List per year. Every Voters List since 2001 has been prepared by cross-matching the finger-prints of each applicant against every other applicant and again with everyone who has applied to vote since 1997. Every elector is on the only Voters List once. There is no duplication.

Studies of the EAC comparing voter registration data with census data, gathered in the census year, show 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.

The legislation permitting the collection of biometric data preclude these data from being shared with any other agency, public or private. These data have never been shared, notwithstanding considerable pressure to do so. The Voter Database has never been hacked because it cannot be hacked. This database is not on-line inside or outside the Electoral Office. Physical access to this database is highly restricted and actions on the data are even more restricted. The individuals so authorized are protected with anonymity. There has not been a case of any allegation of any sort brought against the Electoral Office lapse in its custody of biometric information.

Because biometric data vary in quality resulting, in possible errors, the Electoral Office has developed great expertise in dealing with false positives and false negatives. Because false positives are catastrophic to identification, declaring persons to be so when they are not, cross-matching of stored or live data is biased in favor of false negatives, declaring that persons are not when they are. Strict procedures have been developed for resolving false negatives which occur with the generation of every voter list and with every use of the Electronic Voter Identification and Ballot Issuing System.  In a nutshell the experience and expertise of the Electoral Office far exceeds what is described in Paragraphs 230 to 246 in the Judgement.

The use of biometrics in the electoral process has been one of the pillars on which Jamaica has advanced as a free and democratic society. The fidelity and competence with which the Electoral Office has protected and used this very sensitive and private information have earned the trust of the general population which in turn has elevated to status and desirability of having a Voter ID Card.

Having an Official ID

Increasingly an Official identification is required in order to access some goods and services. The Voter ID Card has been sought as such an ID. This has been particularly so for older adults who have not been able to fulfill the requirements for obtaining a birth certificate but can qualify for a Voter ID because they can provide biometric information, proof of residence and easily satisfy officials of the Electoral Office and scrutineers of the recognized political parties are satisfied that they are over 18 years old. The Voter ID Card is the only official ID that many Jamaicans have. In addition, the security features and quality of the Voter ID Card has earned the confidence of financial and other institutions. It is for these reasons and circumstances that the Voter ID Card has been elevated to the status of de-facto National ID.

Policy Options for the Way Forward

This is the third attempt for create a National ID. I am not sure why the first attempt was unsuccessful. The second attempt failure for lack of financing. This third attempt has attracted significant financing but has failed the test of constitutionality. Most significantly is that the Court has ruled that collecting biometric information from minors cannot be justified. The implication of this is that fixing the legal defects of the NIDS Legislation will not make it applicable to minors.

With respect to the population over 18 years, the esteemed Justices ruled that compulsory demand for biometric information by the state violates the individual’s right to privacy. The notorious fact that was omitted in the case before the Justices but was well known when this NIDS initiative was developed now become an inescapable reality. The approach of this third attempt was essentially that of starting from scratch and with a wish list.

Barbados has long had a National Id System which includes minors. The Barbados National ID system does not collect biometric data from minors. The Barbados system is strongly aligned to its system of registration of births and deaths.

Seeing that the Government has obtained significant resources for creating a National ID a two-pronged policy option seems worthwhile exploring. One prong would be enhancing, strengthening and enabling the Registrar General Department to issue a unique National ID Number from birth and that will be immediately implemented for minors to five years of age. Children entering the school system will be the immediate beneficiaries.

The second prong would be to update, upgrade, strengthen and enable the Electoral Commission such that its legislation satisfies all the provision of the Jamaica Charter of 2011; its technology is state-of-the art; its interactions with electors are in line current practices and capabilities; and its efforts to raise the level of registration of persons 18 to 29 years old is fully supported.

Within 20 years both prongs will become integrated. Persons who do not choose to register to vote will have a unique national number that never expires.We are a young country. Building it requires a long-term perspective.