Right Steps & Poui Trees


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The New NIDS: A Coalition Statement

On October 26, 2020, a coalition of organizations in Jamaica released a statement about the new national identification system, in the context of the announcement a few weeks ago that the new Bill is to be tabled in Parliament shortly. The organizations are Jamaicans for Justice (JFJ), the Slash Roots Foundation, Caribbean Vulnerable Communities Coalition (CVC), Jamaica Youth Advocacy Network (JYAN) and Jamaica Accountability Meter Portal (JAMP). The statement is posted on the JFJ website and is posted in full below.

The New NIDS: An Opportunity to Do Things Differently

OCTOBER 26, 2020 – On September 29, 2020, the Government of Jamaica indicated that fresh legislation to establish the National Identification System (NIDS) would be tabled, debated, and passed by the end of the year. We welcome the restarting of public discourse on NIDS and the government’s commitment to send the Bill, when tabled, to a Joint Select Committee of Parliament which will take submissions from members of the public.

As Jamaicans, we are all too familiar with the inefficiencies and frustration that stem from ineffective identification options—multiple visits to government offices; numerous calls to find a Justice of the Peace to certify documents; or, in the worst cases, inability to access services when we need them.

As a country, we can do better. But national consensus on HOW we address this problem will be critical to achieving a future in which all persons realise the benefits of access to reliable identification in a way that respects their fundamental rights and inherent freedoms. To achieve this goal, we must bear the following in mind.

1. Flaws in national identification systems can lead to unintentional, but systematic exclusion. When they are rushed or not designed inclusively, oversights in the implementation of national identification systems can have far-reaching implications, including human rights violations. Kenya and India provide relevant lessons. Earlier this year, the Kenyan High Court delayed the implementation of their ID system after it found that it was systematically excluding minority groups. In India, recent studies of their ID system have found that it has failed to improve the efficiency of the state welfare programmes (similar to our PATH programme), and has actually made them more difficult to access for the communities who rely on them the most. Engaging with diverse stakeholders early in the process can assist in identifying potential pitfalls that would be more costly to address later in implementation.

2. Great care is needed in the consultation process. If adopted, NIDS will be the most far-reaching system for collection of sensitive, personal information by the government in Jamaica’s history. While the need and opportunity is clear, the risks are also significant. Future generations of Jamaicans will have to live with the systems we design today. To do this well, consultation with the public should be genuine, with a sincere willingness to make changes where necessary.

3. Learning from the first NIDS process is essential. The first attempt to establish NIDS lacked consensus. It was passed amidst intense parliamentary divide, had no formal channel for public input, and was ultimately struck down by Jamaica’s Supreme Court because it violated people’s rights. In this second attempt, the government must commit to doing things differently in pursuit of national consensus.

Accordingly, we offer these initial recommendations for this next phase of Jamaica’s NIDS project.

1. Ensure that there is sufficient time for meaningful public participation in the law-making process. For the government’s commitment to public input to be meaningful, it must be embraced in the truest sense. At present, the end-of-year timeline for the tabling, public consultation, revision, debate, and passage of the NIDS Bill will be insufficient. This law is likely to affect Jamaicans in profound ways, they therefore must have a real opportunity to understand the concepts in the Bill for themselves and sufficient time to prepare any submissions on areas of concern. Adequate time should also be given to allow Parliament’s honest engagement with the varying perspectives. The process should recognise and respect these considerations. Accordingly, we urge the government to revise the proposed approach, which provides only roughly two months to consider, debate, revise, and pass this Bill.

2. The NIDS Bill should not be passed prior to the operationalisation of the Data Protection Act. Though the Data Protection Act was passed in June 2020, the law has not yet been brought into force by the government— meaning that it has no legal effect until the government decides it will. Bringing the law into force would require, among other things, the appointment of the Information Commissioner—the nation’s chief data protection entity—and publication of the Act’s Regulations, which will outline how entities that hold data such, as NIDS, should operate in practice.

These are critical building blocks of the “digital society” that the government is aiming to transition the country towards. However, with the current end-of-year timeline announced by the government, it is possible that the NIDS Bill could be passed before there are any systems in place for protection of personal data and privacy under the Data Protection Act.

Because NIDS will collect unprecedented amounts of personal data, it is in the country’s best interest to have a data protection infrastructure in place prior to Parliamentary consideration of NIDS. This is critical to ensuring that the systems envisioned by the Data Protection Act are truly (not just in theory) functional and capable of safeguarding people’s information and that the legislation is itself sufficient. Jamaica has not yet seen any element of the Data Protection Act in practice. We strongly urge the government not to pass a NIDS Bill that would sanction the most far-reaching system for collection of people’s private information in Jamaica’s history without this.


3. NIDS should be a voluntary system in both law and in practice. People should not face the prospect of social exclusion because of non-enrolment, nor should their conditions be made more difficult in order to compel their enrolment. While the government can no longer criminalise and fine persons who choose not to enrol (as was previously the case before the Supreme Court struck down the prior NIDS law), other measures that have the effect of coercing persons to enrol should be avoided. Such measures include making certain services contingent on enrolment in NIDS so that those using those services have no choice but to register. Jamaicans should retain the ability to access services in a way that respects their personal autonomy, dignity, and freedom of choice.

THE WAY FORWARD

2020 has demonstrated in no uncertain terms that as a country, we must do things differently. For a project of this magnitude, it will take all of us—the people, the government, the opposition, civil society, and the private sector—to build a system that we can all be proud of; a system that respects our fundamental rights, protects our privacy, and promotes social inclusion through greater efficiency.

To the Jamaican people: In the coming months, we will have the opportunity to read this Bill, engage in discussions, and make our voices heard before Parliament. NIDS may fundamentally change how the state recognises us. It is crucial that we actively shape this for ourselves and future generations.

To the Jamaican government: You have the opportunity to demonstrate your commitment to public participation, social inclusion, and good governance. We urge you to embark on this important national enterprise with genuine respect for the perspectives and different life circumstances of the Jamaican people. We take the Prime Minister at his word when on election night he stated that “It must never be that this Government takes the people for granted.” On the topic of NIDS, this includes giving us sufficient time to prepare and participate.

As organizations who care about creating an inclusive and safe national identification system, we look forward to working with the government and the communities that we serve to bring their ideas and contributions to this process. 

ON BEHALF OF

  • Jamaicans for Justice
  • The Slash Roots Foundation
  • Caribbean Vulnerable Communities Coalition
  • Jamaica Youth Advocacy Network
  • Jamaica Accountability Meter Portal

(For full disclosure, I work on the NIDS issue both as a member of JFJ and in my personal capacity.)


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New NIDS Bill to be Tabled in Parliament Shortly…and be Passed by Year End?

At the first session of the new Parliament on September 29, 2020, Prime Minister Holness made a statement about the National Identification System (NIDS) and laid out the timetable in which he hopes to see the new NIDS Bill passed into law. With legislation that will have such far-reaching impact and which has already been the subject of much controversy, it is important that adequate time is allowed for public review of the Bill before it becomes law.  I am concerned that the timetable laid out by the Prime Minister may not allow sufficient time for this much-needed public review.

In his statement in Parliament, PM Holness said that the draft Bill had been completed and was before the Legislative Committee (of Cabinet) and that it would be tabled in Parliament before the end of October. A Joint Select Committee of Parliament would then be established and it was his hope that the Bill would be passed by the end of the year.

In too many instances over the decades, the deadline given by Joint Select Committees for submissions hasn’t allowed adequate time for interested groups and individuals to review and analyse the draft legislation and prepare submissions. In the current situation, if the new NIDS Bill is tabled within the next two weeks, there would be only 7 to 9 weeks for the entire process to take place, if the Bill is to be passed into law before the end of December. That is,

  • for the Joint Select Committee (JSC) to be established to consider the Bill and make a call for submissions;
  • for the public to review the Bill and make submissions and appear before the Committee, if asked;
  • for the Committee to undergo its own deliberations, considering any submissions, and write and table its report to Parliament;
  • for both Houses of Parliament to consider the report and its recommendations and debate the Bill and pass it.

It may be that once the new Bill is tabled, it will have been so carefully drafted and will have addressed the concerns raised in the judgment of the Constitutional Court which struck down the old Act, and will have taken into consideration many of the concerns raised by the public prior to the passage of the old Act, that there will be few new or remaining concerns to be dealt with. But until we see the new Bill we will not know.

We can read the new NIDS policy that was published in April. We can read or listen to the PM’s statement to Parliament in September. But until the Bill is tabled, we will not know what it actually says and, to use the cliché, the devil is always in the details.

So, for example, the new policy and the PM have said that enrolment in the NIDS will now be voluntary, but how is this addressed in the Bill? Could a situation arise in which government or private sector entities could make the presentation of a NIDS card or number mandatory to access service, so that enrolling in NIDS becomes mandatory in fact or practice, if not in law? Need for discussion before passage into law?

Let’s not have a repeat of the previous experience where a self-imposed deadline drives the process by which the legislation goes through the Parliament. And whereas I agree with the PM that the process shouldn’t be boundless, it needs to be realistic in its allowance for genuine consultation and discussion. This allowance for adequate time before passage of the legislation may indeed forestall problems after its passage, as well as simply being in accord with good governance practices.

(Just to note that the PM spoke about a space on the NIDS website that will allow for public comments about the new Bill. This raises the need for other forums for public information and input before the Bill is passed.)

Relevant Documents

PBCJ recording of Sitting of House, September 29, 2020

https://www.youtube.com/watch?v=axnFC1Xet48

“…we intend to have the Bill through the Legislative Committee before the end of October. The Bill will come back to this House and out of an abundance of caution, I can state here that it will go to a Joint Select Committee, so that there is no opportunity for unnecessary delays and that if there are issues that arise in the traditional way, we deal with it in the Committee. And the public can have their say. At, you know, I don’t want to determine the Parliamentary process but one would expect that the process is not unlimited. There must be some bound to it. And therefore we would like before the end of the year, this year, that we should be seeking to pass the Bill into law. Madam Speaker, once the Bill is tabled in Parliament, as I said, we will have a Joint Select Committee to navigate it through the Parliament and we hope that the deliberations will proceed apace.” 

PM Holness’ comment re new NIDS Bill timeline – Transcribed from PBCJ recording of Sitting of the House, September 29, 2020


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Disaster Risk Management Order No. 14 – Dated October 6, 2020

The Gazette of Disaster Risk Management Order No. 14 was posted online this morning. A copy of the order is posted below:

Prime Minister Andrew Holness announced the new and amended measures contained in this order in Parliament last week Tuesday (October 6, 2020). That the Gazette was posted on the governement website a week later is problematic, but it is the pattern that has prevailed throughout the many months since these Orders have been used. Perhaps we are meant to be grateful that the gazetted orders are posted on the Ministry of Justice, the Office of the Prime Minister and the Ministry of Health & Wellness (scroll all the way to the bottom of the page) websites, albeit some time after the measures are announced, as initially they were not posted online by the government at all.


Documents Regarding Covid-19 and Public Holiday Curfews: A Short Access to Information Story

On September 15, 2020, I sent the following Access to information request to both the Ministry of Health & Wellness (MOHW) and the Office of the Cabinet (CO):

“I would like to make a request for the following information under the Access to Information Act:

1) Documents containing information regarding the use of curfews as a measure to reduce risk of Covid-19 transmission during Easter public holidays April 2020

2) Documents containing information regarding use of curfews as a measure to reduce risk of Covid-19 transmission during Labour Day public holidays May  2020

3) Documents containing information regarding use of curfews as a measure to reduce risk of Covid-19 transmission during Emancipation and Independence public holidays August 2020
These documents could be dated prior to or after the relevant public holidays.”

I received an acknowledgement from the MOHW on September 17, 2020…

“This acknowledges receipt of your Access to Information requesting documents as detailed in bullets 1-3 below.  

Please be advised that we have started the necessay research and will revert to you as soon as possible within the timelines of the Access to Information Act 2002.”  

…and a subsequent phone call to clarify the information that I was seeking.

On September 21, 2020, I received the following acknowledgement of my request from CO:

On October 7, 2020, I received this response from MOHW, indicating that no documents relevant to my request were found:

Today, October 9, 2020, I received this response from CO indicated that no documents related to my request were located:

I just want to note that this response does not indicate that there are documents containing this information, but that they are exempt because of being Cabinet documents as set out in Section 15 of the Access to Information Act.

So, there are no documents in the possession of either the Ministry of Health & Wellness or the Office of the Cabinet that contain information about the use of curfews as a measure to reduce the risk of the transmission of Covid-19 during the Easter, Labour Day or Emancipation and Independence public holidays this year. Documents dated either before or after these public holidays.

Increased curfew hours have been announced for the upcoming Heroes’ Day public holiday. I wonder if any documents containing information about this exist at the Ministry or the Cabinet Office?


Prime Minister’s Covid-19 Statement in Parliament: October 6, 2020

In Parliament this afternoon (October 6, 2020), Prime Minister Andrew Holness made a statement about the current situation concerning Covid-19 in Jamaica and announced a number of changes to the measures pertaining to the management of the pandemic. These measures will be found in the Disaster Risk Management Order No.14, which is not yet available. Some of the measures went into effect at 6pm this evening; others go into effect tomorrow.

Below is the text of the Prime Minister’s statement and I have also included a link to the recording of today’s sitting of the House.

Two areas will have additional measures imposed because of a spike in the number of cases of Covid-19 that have been reported. They are Whitfield Town in Kingston and Waterford in St Catherine. The boundaries of the communities are given below:

The Public Broadcasting Corporation of Jamaica (PBCJ) recording of today’s sitting of the House can be found at this link and allows for the checking of the text of the PM’s statement against delivery.


Disaster Risk Management Order No. 13 – Dated September 23, 2020

The Gazette of the most recent Disaster Risk Management Order is now available and I have posted a copy below. Prime Minister Holness announced the new or amended measures at a press conference on Tuesday (September 22, 2020).

Checks this afternoon of the ususal Ministry of Justice and Office of the Prime Minister’s websites showed that the Gazette of the new Order was not posted there, but the Ministry of Health & Wellness tweeted out a link to Order No. 13 on its website, which was a surprise.


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Disaster Risk Management Order No. 12 – Dated September 8, 2020

The Gazette of the Disaster Risk Management Order No. 12, which contains the changes announced by PM Holness on September 7, 2020, is now available.

The Gazetted copy of the Order has been posted on the website of the Office of the Prime Minister.


Disaster Risk Management Order No. 11 Amendments No. 3 & No. 4 – Dated August 27 & 30, 2020

These are the two most recent amendments to Disaster Risk Management (Enforcement Measures)  (No. 11) Order, 2020, which is the current order in force.

Disaster Risk Management Order 11 Amendment 3 cover page

The Disaster Risk Management (Enforcement Measures) (No. 11) (Amendment) (No. 3) Order 2020 – August 27 2020

Amendment No. 4 contains the protocols governing the access to voting for Election Day (September 3, 2020) for people in quarantine or isolation due to Covid-19.

Disaster Risk Management Order No 11 Amendment 4 cover

Disaster Risk Management (Enforcement Measures) (No. 11) (Amendment) (No. 4) Order, 2020 – August 30 2020

 


Two Amendments to Disaster Risk Management Order No. 11 – Dated August 5 & 18, 2020

There are two amendments to Disaster Risk Management No. 11 Order, one dated August 5, 2020 & the other dated August 18, 2020. Here are copies of the gazetted amendments:

Disaster Risk Management No. 11 Order Amendment Aug 5 2020

The Disaster Risk Management (Enforcement Measures) (No. 11) (Amendment) Order 2020 – August 5 2020

Disaster Risk Management Order No 11 Amendment 2 - Aug 18 2020

The Disaster Risk Management (Enforcement Measures) (No. 11) (Amendment) (No. 2) Order – August 18 2020

The first of these amendments is posted on both the Ministry of Justice and the Office of the Prime Minister‘s website, but as of now the second amendment has not been posted.


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Disaster Risk Management Order No. 11 – Dated July 31, 2020

The Gazette of the Disaster Risk Management (Emergency Measures) (No. 11) Order, 2020 is available. It contains measures announced by Prime Minster Holness in Parliament on Tuesday, July 28, 2020. Many of the measures will expire on September 30, 2020, unless amended prior to that date.

Disaster Risk Management Order No 11 cover blog pic

The Disaster Risk Management (Enforcement Measures) (No. 11) Order, 2020 – July 31, 2020

Order No. 11 is posted on the websites of the Ministry of Justice and the Office of the Prime Minister.

House of Representatives Sitting on July 28, 2020.

The Prime Minster’s statement begins at approx 3:42:35 of the recording.