The Supreme Court of Judicature of Jamaica (‘the Court’) issued, on 12 April 2019, its judgment (‘the Judgment’) in Robinson, Julian v. The Attorney General of Jamaica, in which it declared the National Identification and Registration Act 2017 (‘NIRA’) to be unconstitutional, null, void and of no legal effect. In particular, the claimant alleged that the creation of a national identification system, which would consist of a database (‘the Database’) as well as an identification card and number, was likely to violate rights and freedoms protected under the Jamaican Charter of Fundamental Rights and Freedoms 2011 (‘the Charter’), which are entrenched in the Constitution of Jamaica. According to NIRA, the Database would collect biometric, biographical and demographic information as a means of identification and would be established, maintained and operated by the National Identification and Registration Authority (‘the Authority’).
Grace Lindo, Partner at Nunes, Scholefield, DeLeon & Co. told DataGuidance, “The Judgment has pretty much defined privacy beyond what the constitutional right provides. This was one of the first cases looking at the explicit right in the Constitution which carved out privacy in respect of family life, private life, communications and property. The Chief Justice, who gave the leading judgment, felt that privacy encapsulated ‘privacy of choice and informational privacy.’ The concept of informational privacy is very new to the Jamaican jurisprudence. The import of the Judgment is that even without a data protection act, which is still in the works as a draft, Jamaicans can enforce this right of (informational) privacy against the government and even private parties. The duty of care for data controllers in Jamaica just went up.”
The Court examined the definitions provided by NIRA and also elaborated on the concepts of biometric identification systems and data collection, highlighting that NIRA would provide for a system of data collection on all Jamaican citizens and those who live in Jamaica for at least six months of a calendar year. Furthermore, it noted that the Database would essentially become a repository of virtually all biographical information on the entire Jamaican population and ordinary residents by enabling profiling and electronic surveillance through tracking the use of the identification number which would be embedded in such a manner that, over time, all government databases would be linked to each other by way of this number.
The duty of care for data controllers in Jamaica just went up
Lindo continued, “The Court ruled that an amendment [of NIRA] is not possible as it could not sever the offending parts of NIRA to leave a constitutionally valid law. I think the manner of the clauses dealing with mandatory registration had this effect. Section 41 of NIRA created the obligation to register but also made non-registration an offence. Also, the government itself argued that the law was not potent unless it was mandatory, so this Judgment was not a surprise. The Court would have been tasked with becoming a draftsman to save NIRA, [however] the Court cannot become a drafter of statutes.”
Following the above, it was found that NIRA did not provide sufficient safeguards against the misuse and abuse of the data collected by the Database, neither did it provide for an independent oversight body mandated to conduct an audit of the Authority and take action for violations of NIRA. In addition, the compulsory provision of biographical and biometric data was found to violate Section 13 of the Charter, as it did not respect the concept of data minimisation. Finally, the Court held that third-party access to the Database was not justified, thus it also violated Section 13 of the Charter.
Lindo concluded, “The feedback on social media and releases to the press has been ambivalent. The private sector has asked for a bipartisan compromise in finding a solution which passes the constitutional bar. I suspect the private sector sees some benefit, though it is not fully articulated. Stakeholder groups, such as human rights groups, have welcomed the Judgment not only because it provides clarity on the right to privacy but also because it provides learning on proportionality under our constitutional law.”
NIKOS PAPAGEORGIOU Privacy Analyst