Right Steps & Poui Trees


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Proclamations & Regulations for SOEs Declared December 6, 2022

Up until the time of publishing this blog post, I have been unable to find copies of the Proclamations and Regulations for the States of Emergency declared on December 6, 2022 online. I have been checking the websites I usually check without success – Office of the Prime Minister, Ministry of Justice and Parliament. I have also checked the Ministry of National Security website, which isn’t a site I usually check for copies of the Gazette.

Yesterday morning (Dec 14), I called the Jamaica Printing Services on Duke Street to ask if I could collect a copy of the gazetted documents and was told to check back in the afternnon, but I wasn’t able to. I called again this morning and was told yes, I could get the copies. So I collected them this afternoon.

I am sharing the copies below:

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Cost of the Negril Sign: A Simple ATI Story

In early September 2022, news came that a new and “iconic” sign had been built in Negril.

There was much public discussion about the sign – its design and construction, whether it was a needed or appropriate addition to Negril, whether it would be the tourist attraction it was being promoted as.

The Minister of Tourism, Edmund Bartlett, spoke of the sign’s “creative and aesthetic appeal”, saying it was “artistically and carefully designed”.

Opposition Senator Damion Crawford said it looked like an “old time saving pan”.

A significant issue raised was its cost and whether it was value for money, at J$12 million.

Questions were asked about what contributed to that cost and I reminded that it was possible to get additional information under the Access to Information Act.

On September 12, 2022, I went ahead and made an Access to Information (ATI) request to the Ministry of Tourism and received an acknowledgment of my request from the Director of Documentation, Information and Access Services on the same day.

(The initial email I sent to the Ministry bounced back, so I called and got the correct current contact information and resent the request.)

Today (October 10, 2022) I received a follow up email granting access, with two documents attached:

  • Breakdown of Cost for the Negril Welcome Sign

  • Tender Report – Negril Sign

This was a very straightforward process, which isn’t always the case with ATI requests. I would encourage you to use the ATI Act for getting information, if you haven’t done so before. If you do, I hope your ATI story is as simple as this one.


GOJ Release Regarding Cost of Commonwealth Secretary General Campaign: An ATI Perspective

On Sunday, August 7, 2022, the Office of the Prime Minister (OPM) issued a press release entitled “Jamaica’s Commonwealth Secretary General Campaign Clean, Transparent, Principled” in which it gave information about the cost of the campaign for Commonwealth Secretary General undertaken by Minister Kamina Johnson Smith.

The release is not posted on the OPM website and wasn’t tweeted by the OPM Twitter account. I have posted below a copy of the text:

Often when I read statements released by government entities, I think of Access to Information (ATI) requests that could be made to get more information about the topic being dealt with. Here are some of the requests that could be made based on this release:

Paragraph 2

  • Documents containing the “already established travel plans and engagements” in place for Minister Johnson Smith prior to the announcement of her candidature (As at January 1, 2022? March 1, 2022?)
  • Documents containing the budgeted costs for these planned trips and engagements
  • Documents containing the actual costs for these planned trips and engagements

Paragraph 3

  • Documents indicating specifically when and where the Minister’s candidature was launched in London in April 2022
  • Documents indicating the cost of the launch
  • Documents detailing the “corporate Jamaica” entities that gave assistance for the launch & the nature and value of that assistance

Paragraph 4

  • Documents indicating the specific dates of each of the 4 engagements mentioned in this paragraph & the dates when they were first added to the Minister’s schedule.
  • Documents containing the budgeted cost of each of the 4 listed engagements
  • Documents containing the actual cost of each of the 4 listed engagements

Paragraph 6

  • Documents setting out the travel schedule undertaken by the Minister covering 7 countries/8 governments in Africa
  • Documents indicating the cost of (each of) these trips/meetings

Paragraph 7

  • Documents giving a detailed breakdown of the $18, 267, 575.07 expended on the campaign. (Many of the categories for the breakdown are already suggested in the press release itself. However, actual documents/vouchers/etc from the various ministries & govt agencies can actually be requested under the ATI Act. A consolidated account/report compiled in response to this request isn’t the only way to go, if an applicant wants more detail.)

Paragraph 8

  • Documents providing details of the expenditure for the Commonwealth Heads of Government Summit in Rwanda of (i) $12, 827,897 by the OPM, (ii) $7,715,585.37 by the Ministry of Foreign Affairs and Trade and (iii) $5,131,386 by the Ministry of Tourism.
  • Documents providing details of the expenditure by the government for the previous Commonwealth Heads of Government Summit, in the UK in 2018

Paragraph 9

  • Documents referring to any aspect of the FINN Partners contract with Minister Johnson Smith and/or the services provided by FINN Partners. (This would include any internal memos, emails or any other form of communication.)
  • Documents providing information about the individuals or entities from “corporate Jamaica” who were party to the arrangement with FINN Partners.

Paragraph 11

  • Any documents evaluating the ways in which the campaign “served to strengthen bilateral relations and further enhance Jamaica’s reputation on the international stage.”

No one applicant might want to submit all of these possible ATI requests, and there are other requests that are not on this list that another applicant might be interested in submitting. This, however, illustrates that there is a lot of information that this release does not provide and that the ATI Act provides a mechanism by which further, more detailed information can be accessed.

I want to make clear that I am not here questioning Minister Johnson Smith’s qualifications, experience or suitability for the post of Secretary General. I have a lot of respect for her and her abilities.

What I am seeking to do is to point out that even where the government or one of its agencies says that it has been transparent in some regard, there are often many other pieces of information that can be requested for full transparency. To ask for further details is legitimate and the ATI Act provides the means for doing so, if someone wants to request that further information. And that does happen quite naturally in the course of seeking information about a matter…a document that is provided or released may lead to requests for further documents or information.

In a paradigm of open government, which recognises that people have a right to access all the information held by the government, with a few, specific, limited exceptions, it would be troubling for requests for information to be seen as somehow unpatriotic or to be discouraged. If the people are entitled to the information, go ahead and give it. Give as much of it proactively as is possible. Government bodies don’t have to wait on ATI requests to release information that is being asked for publicly. And follow-up questions and requests for additional information should be expected.

I have always liked Section 6(3) of the ATI Act, which says that an applicant for access does not need to give any reason for requesting access. It is an important protection for citizens, as they do not have to justify to the State the reason that they want access to any particular document or piece of information. The State should grant access or deny access in accordance with the Act. The information belongs to the people. It is held in trust by the State for them. They have a right to access it. The State has a duty to provide access.

Flawed as it is, in need of strengthening as it is, the ATI Act is one of the most important pieces of legislation to be passed in Jamaica in the past quarter century, as I repeatedly maintain. And we need to pay close attention to the pending review of the Act to ensure that any amendments to it strengthen, rather than weaken, its provisions.


Update: WRONG Copy Tabled – The Emergency Powers (Parish of St Catherine) (No. 2) Regulations, 2022 Tabled in Parliament

UPDATE: TODAY (JUNE 22, 2022) IT HAS BEEN REPORTED THAT THE WRONG COPY OF THE SOE REGULATIONS WAS TABLED IN PARLIAMENT YESTERDAY. MEMBERS OF PARLIAMENT HAVE BEEN CALLED TO A SPECIAL SITTING OF THE HOUSE TOMORROW FOR THE TABLING OF THE CORRECT REGULATIONS. SO THE REGULATIONS BELOW WILL BE REPLACED WITH THE CORRECT COPY.

Gleaner article: MPs called back to Parliament after gov’t tables wrong SOE regulations

(The Gleaner article download posted on blog 25-11-22)

Update – added on November 25, 2022

I am adding a copy of the correct regulations for this State of Emergency, for completion of the record for this blog post. The State of Emergency was not extended beyond the initial 14 days. I have also posted here a link to the PBCJ recording of the sitting of the House of Representatives on June 23, 2022 at which the correct Regulations were tabled and an explanation of the error was given by the Minister of National Security, Horace Chang.

***********************************************************************************************************

The Emergency Powers (Parish of St Catherine) (No. 2) Regulations, 2022 were tabled in Parliament by Minister of National Security Horace Change this afternoon (June 21, 2022). These are the regulations now governing the State of Emergency declared last Friday, June 17, 2022.


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Constitutional Court Rules Parts of 2018 Emergency Powers Regulations Unconstitutional: Roshaine Clarke v A.G. Judgment

This morning (June 17, 2022), the Constitutional Court handed down its judgment in the matter of Roshaine Clarke v Attorney General of Jamaica, a matter dealing with the constitutionality of parts of the Emergency Powers Regulations, 2018, which governed the State of Public Emergency under which the Claimant had been detained.

Interestingly, hours before the Court handed down its judgment, Prime Minister Andrew Holness announced that a new State of Emergency (SOE) had been declared, for the parish of St Catherine.

A live audio feed from the court was provided.

This is part of a welcome development in which live feeds have been provided in a few cases of great public interest. It would be good for this to happen in many more instances.

A Press Summary was provided to highlight aspects of the case and ruling:

The written judgment was handed down.

Emergency Powers Regulations 2018

For ease of reference, I am providing a link to an earlier blog post with a copy of the Emergency Powers Regulations, 2018.


The Gleaner’s Bank of Jamaica Information Request: A few ATI thoughts

Last Thursday (May 5, 2022) The Gleaner published an article titled “BOJ Mum on Money Price Tag” in which it told about the Bank of Jamaica’s refusal to grant access to information requested under the Access to Information (ATI) Act.

The Bank of Jamaica (BOJ) has refused to disclose the cost of financing the controversial upgrade of banknotes scheduled for release later this year.

An Access to Information (ATI) request submitted by The Gleaner for the cost to revamp the notes, first announced in Parliament by Minister of Finance Dr Nigel Clarke, was denied by the central bank.

“The contract relating to the cost of upgrading the banknotes is exempt from disclosure under the Access to Information Act,” the BOJ’s Deputy General Counsel Alvana Johnson said on April 22 in response to the request.

Johnson did not state which provision within the legislation it used to shield the disclosure of the cost.

The cost for the upgrade was determined based on bids submitted, The Gleaner was told, but details of the bids were not disclosed, nor were the names of the bidders.

Additionally, the BOJ, which is charged with the maintenance of the financial system’s stability, would not reveal who was awarded the contract.

Excerpt from Gleaner article, BOJ Mum on Money Price Tag, 5/5/2022

I don’t know the exact wording of the Gleaner’s ATI request but the topic certainly seems to be one that would be of general interest – matters concerning the production and the cost to the country of new bank notes that are to be issued later this year. It doesn’t really matter, however, whether anyone else would be interested in the information an applicant has requested. Just as it doesn’t matter why the information is requested. Section 6(3) of the ATI Act says:

The Gleaner says that BOJ denied its request for information and the ATI Act says – in Section 7(5) – that where that happens, the Govenment entity must give reasons for the denial:

The Gleaner included a quote from the BOJ saying that the relevant contract was exempt under the ATI Act. However the BOJ did not say which Section in the Act it was relying on in order to claim that the contract was exempt.

Part III of the ATI Act deals with exempt documents; it has ten sections with multiple subsections dealing with a number of reasons a document might be considered exempt from disclosure. The reasons are varied and include things such as

  • the disclosure would prejudice the security, defence or international relations of Jamaica
  • it is a Cabinet Decision, or other official record of any deliberation of the Cabinet
  • documents related to law enforcement, the disclosure of which would facilitate the escape of a person from lawful detention
  • the disclosure would reveal trade secrets
  • the disclosure would result in destruction of, damage to, or inteference with, the conservation of endangered species of plants or animals.

There are many more.

When a Government entity doesn’t give the reason for its denial of access, it is problematic, as I pointed out in this tweet:

On Friday (May 6, 2022), BOJ responded to the Gleaner article with a notice posted on its website – Cost of Upgraded Banknote Series:

Bank of Jamaica (the Bank) recently concluded a contract with De La Rue, a UK based company, to redesign and print the upgraded banknotes which will be put into circulation towards the end of this year. The Bank acknowledges the valid concerns regarding the provision of information about the cost of the upgraded banknotes. However, we are not able to disclose such information as the terms and conditions of the contract with De La Rue, which include the cost, are subject to a strict confidentiality agreement. In fact, personnel engaged in the procurement process were required to sign non-disclosure agreements prohibiting them from disclosing the settled payment terms. Disclosure would therefore expose the Bank to legal action for a breach of contract. The Access to Information Act exempts the disclosure of information relating to the terms of the Contract as to do so  would be an actionable breach of confidence.

The selection of De La Rue as the successful printer was the result of a rigorous procurement process conducted by the Bank with the final recommendation being approved by the Minister of Finance and the Public Service as required by the Bank of Jamaica Act.  The procurement process is consistent with the Government’s procurement guidelines. Six reputable banknote printers submitted bids which were assessed by a committee of the Bank’s currency experts. Based on confidentiality of the bidding process, the Bank is unable to divulge information on the other entities.

The cost of printing banknotes over the last three years (2019 – 2021) was approximately USD7.0 million per annum. For the upgraded banknotes, the cost will, initially be higher given (i) the significantly larger quantities to be ordered as the redesigned notes will fully replace the current notes over time, (ii) the new substrate, polymer, that will be used, (iii) enhanced security features to combat counterfeiting and (iv) the new designs for each denomination. However, the polymer substrate used will result in cost savings for the Bank over time as the average useful life of the banknotes will increase by at least 50 percent thereby enabling the Bank to order less banknotes and at a lower frequency in the future.  

Bank of Jamaica will provide relevant information regarding the new series of banknotes as part of a comprehensive public education campaign leading up to their introduction into circulation at the end of this year.

BOJ Notice, 6/5/2022

BOJ gave additional information in this notice, including the name of the company that was awarded the contract. It also said more about its reason for denying the Gleaner’s request, though it still did not specifically state the Section of the ATI Act it was relying on to claim an exemption. From its comment that “Disclosure would therefore expose the Bank to legal action for a breach of contract“, one might assume that one of the subsections of Section 17 is being relied on but an applicant ought not to have to make an assumption.

In a response on Twitter, BOJ did refer to Section 17…

…which says this:

The issue of the new bank notes has been of public interest and the subject of discussion since the Finance Minister’s announcement in Parliament two months ago. The Gleaner’s article and the BOJ’s responses have raised more questions, including ones to do with the application of the ATI Act. It will be interesting to see if the Gleaner is satisfied with the BOJ’s responses or whether they will request internal review of the BOJ’s decision or ultimately go to the Appeal Tribunal.


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New NIDS Bill Tabled in Parliament

Yesterday afternoon (December 15, 2020) the new National Identification System and Registration (NIDS) Bill was tabled in Parliament.

The Bill was read the first and second times and a Select Committee of the House was named; a Select Committee of the Senate is to be named and the two committees will sit jointly to review the new Bill. The MPs named yesterday were:

Delroy Chuck (Chairman), Fayval Williams, Marlene Malahoo Forte, Marsha Smith, Robert Morgan, Dwight Sibblies, Julian Robinson, Hugh Graham and Lothan Cousins.

In his statement about the new Bill to the House, PM Holness didn’t outline a timetable for its passage as he had done in September, but MP Chuck did mention it in his brief comments:

“It is a very important Bill and we certainly would like to use the next two months profitably and hopefully we can debate and have the Bill passed during this fiscal year.”

It is during this short period that the public will have the opportunity to read and analyse the Bill and to give feedback.

Below is the prepared text of the Prime Minister’s statement, which can be checked against the PBCJ recording to hear his additional comments and to hear the comments made by Leader of the Opposition, Mark Golding.

The proceedings regarding the new NIDS Bill start at approx 2:44:40 in the PBCJ recording.


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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.)