Right Steps & Poui Trees


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Increased Police Killings, Privacy & Other Concerns: INDECOM’S 1st Quarterly Report 2017

Jamaica’s Independent Commission of Investigations (INDECOM) is a Commission of Parliament mandated “to undertake investigations concerning actions by members of the Security Forces and other agents of the State that result in death or injury to persons or the abuse of the rights of persons”. (INDECOM Act) The Commission began work in late 2010 and submits annual and quarterly reports to Parliament; these reports are available to the public and many are posted on INDECOM’s website. The reports give both data and analysis regarding the complaints and incidents investigated; they also include reviews of issues of concern to the Commission. In the past, these issues have included

  • deaths in custody
  • deaths of the mentally ill in confrontation with the police
  • command responsibility for the use of force
  • the School Resource Officers Programme
  • firing at vehicles.

1st Quarterly Report 2017

INDECOM 1st Quarterly Report 2017

The 1st Quarterly Report – 2017 was tabled in Parliament earlier this month and INDECOM held a press conference last Friday (May 26, 2017) to discuss the contents of the report.

Part One of the report gives information about new complaints received by INDECOM during the first three months of 2017 and lists the names of the security force-related fatalities, giving the location of each incident and which state agency was involved in the fatality.

Other information, such as Fatal Shootings by Parish, is given.

INDECOM 1st Q report 2017 p 11 chart

Part Two  of the report deals with the work of the Legal Department. It gives information on the Commission’s completed reports for the period and gives details of the recommendations of the Legal Department in 51 fatal shooting incidents. Most of these incidents took place between 2011 – 2015, but there is one case from 2008 and another from 2010. In the majority of these cases, there was the recommendation that no criminal charge be laid or disciplinary action be taken, and that the file be forwarded to the Special Coroner. In one case there was the recommendation that a policeman be charged with murder and in another case there was a confirmation of the DPP’s decision to charge a policeman with murder. INDECOM 1st Q 2017 - cases 1-2INDECOM 1st Q 2017 - case 15INDECOM 1st Q 2017 - case 22INDECOM 1st Q 2017 - case 33

The report also indicates the arrests and charges during the first quarter:INDECOM 1st Q 2017 - arrests and chanrges

Part Three of the report is on Lessons Learnt. It contains alarming data about the sharp increase in the number of people killed by the security forces in the first three months of 2017, when compared to the same period last year – a 75% increase.  This sets out in report form information that INDECOM has already communicated during the year.

The decline in security force fatalities, from above 200 killed per annum, for many years, fell to 115 in 2014. This was a 55% reduction. Fatalities dropped to 101 in 2015 and 111 in 2016.

However, the first quarter of 2017 (Jan – March) has seen a 75% increase in fatal shootings over the same period of 2016; 42 fatalities as against 24 in 2016. NB. 42 fatalities was not reached until mid-May, in 2016.

Fatal shootings in January, 2017, amounted to 19, a figure last observed in January 2014. Explanations provided by the JCF for this increase and subsequent months was reported as a rise in police confrontations with criminal gangs. (p. 31)

INDECOM press conference 26-5-17

Left to right: Denyelle Anderson (Public Relations Officer), Terrence Williams (Commissioner) , Hamish Campbell (Assistant Commissioner)

At the press conference, INDECOM Assistant Commissioner Hamish Campbell gave an update in the number of fatalities, stating that as of May 25, 2017, 64 people had been killed, compared to 44 by the same date in 2016. This is a 45% increase, which is still an alarming figure. He also reported that as of that date, the combined number of people shot and killed or shot and injured by the security forces was 87.

Mr Campbell also spoke about the fact that  46% of the people shot and killed or injured by the security forces in the first quarter of 2017 were not in possession of a firearm and 32% of them were completely unarmed.

INDECOM pictograph p. 31

Pictograph 1: Persons killed or injured without a firearm or in possession of non-firearm weapon (p. 31)

 

The section contains further information about these incidents and concludes as follows:

INDECOM 1st Q report 2017 p 33

Part Four of the report gives information about INDECOM’s meetings with the JCF, its outreach activities and press releases issued.

Additionally, the First Quarterly Report has an article on the issue of privacy and policing, dealing with surveillance, CCTV cameras and the need for regulations in Jamaica governing their use. There is also a review of the Major Organised Crime & Anti-Corruption (MOCA) Bill before Parliament and the concerns INDECOM has about aspects of the Bill. INDECOM Commissioner Terrence Williams spoke about these two issues at the press conference and I will comment on them in a separate blog post.

INDECOM’s Reports are a useful mechanism for the public to track the work of the Commission and some issues of great importance to the society. It is a shame that they are not the subject of more discussion and debate in the Parliament itself.

 

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DNA? No Way! – More on The National Identification & Registration Act, 2017

A March 27, 2017 Jamaica Information Service (JIS) report titled National Identification System Will Be Game Changer – Chuck quotes Minister of Justice Delroy Chuck saying:JIS Min Chuck re natl id 27-3-17

The National Legislation and Registration Act, 2017 has been tabled in Parliament but hasn’t yet been passed. Minister Chuck’s reported statements to a police gathering in St Ann raise a number of concerns, one of which is his inclusion of DNA as one of the biometric identifiers to be included in the National Identification System.

When I wrote a blog post about the legislation last week, I had not seen the report of Minister Chuck’s speech, and I referred to the inclusion of DNA as an alarming future possibility:

So at some point in the future, a Prime Minister could decide to amend the Third Schedule to include DNA as one of the biometric identifiers the Government would have the power to collect from every Jamaican citizen for storage in the database.

It is disturbing that the Minister of Justice sees the inclusion as a welcome current reality, rather than a problematic future possibility! Particularly since the Bill tabled in Parliament in March makes no mention of DNA, except the following in the Sixth Schedule, which deals with Amendments and Repeal of other Acts to be done in association with the new legislation:NIDS Bill - DNA Evidence Act amendment

DNA is not included in the Third Schedule, which lists the wide-ranging information the State will be empowered to collect from every Jamaican citizen for storage in a central database, nor is it included in the definitions of biometric information or core biometric information in the Interpretation section of the Act:NIDS Bill - biometric infoNIDS Bill - core biometric info

However, it would be quite easy to add DNA to the list in the legislation as currently drafted. The regulations have not yet been drafted or made public, and when they are, DNA could be included. Regulations are subject to affirmative resolution – 57(2). Additionally, Section 58 empowers the Prime Minister to amend the Schedules of the Act, including Schedule Three, which would be an even easier method for including DNA.NIDS Bill Section 58

So, I ask the question: Does the Government intend to include DNA as one of the biometric identifiers to be collected for use in the National Identification System? If it does intend to collect DNA, then this should be made clear prior to passage of the Act. If it does not intend to collect DNA, then a specific prohibition needs to be included in the legislation, as has been done for some demographic information:NIDS Bill - demographic info

I have focussed on DNA in this post, given that it is the most extreme suggestion for collection and it has been mentioned by the Minister of Justice. I think, however, that ALL biographical, biometric and demographic information listed in the proposed legislation need to be reviewed and carefully considered before the Act is passed.

Other Questions About the Act Highlighted in JIS Report

The JIS report includes the following:JIS Chuck re Natl ID 27-3-17 banks

This points to the issues of

  • who will be entitled to request or demand the National Identity Number and/or National Identity Card from an individual,
  • under what circumstances such a request or demand can be made,
  • what right an individual will have to refuse such a request or demand and
  • what the consequences of such a refusal will be.

These need to be clearly understood before the Bill is passed into law.

For example, it is stated in the Bill that:NIDS Bill Section 41

This indicates that both public sector and private sector entities will have the power in law to request or demand that an individual provides their National Identification Number or National Identification Card and the individual will be required in law to produce it. (So you could go to the hardware store to buy a tin of paint and be required in law to produce your identity card if asked for it?)

How does this apply to requests or demands by the police? The JIS report states:JIS Chuck re Natl ID 27-3-17 police stop 2

The Bill is silent on any requirement that an individual must carry their National Identification Card at all times. Is it intended that this be included in regulations? Will the police be empowered in law to require someone to produce their National Identification Card? And if so, under what circumstances? As part of a “routine stop”? Only where there is reasonable suspicion of involvement in some criminal offence, committed or imminent? And what is contemplated as the consequence if someone doesn’t have their National Identification Card on them? Would that become grounds for detention? And if people are going to be required to carry their National Identufication Cards with them at all times, at what age would that requirement begin? And would it be all the BIOMETRIC data that would become available on swiping the card in the scenario above?

In another scenario presented by Minister Chuck, the police would have easy access to the fingerprints stored in the centralised database:JIS Chuck re Natl ID 27-3-17 access to fingerprints

This is a misleading portrayal of the process for the police to gain access to fingerprints or whatever core biometric information is eventually stored in the central database. It goes beyond “a quick check with the National Identification System headquarters”. In the Bill tabled the process is far more complex, as it should be given the sensitive nature of individuals’ biometric information. The process is set out in Section 45 of the Act and involves an application to the court and the criteria that a Judge must consider in granting the order for release of the information to the police.

The report ends with reassurances from the Minister:JIS Chuck re Natl ID 27-3-17 focus on crime applications

The security of any information stored in the centralised database is of critical importance. Is there a need for some minimum standards to be included in the legislation?

If you read through the National Legislation and Registration Act, 2017 in its current draft, you would not see the strong emphasis on its use as a crime fighting tool. It is presented primarily as a means for identification in accessing goods and services. This is one of the reasons for scrutiny at the level of a Joint Select Committee and clarification for the public. What are the implications (intended or unintended) of the provisions of the proposed legislation? What are the risks? What is the potential for erosion of rights and abuse by the State?

I am fully aware of the potential for inaccuracies and incompleteness in reports of events and speeches, but if the JIS report is an accurate one, then I am disappointed in Minister Chuck, because he is one of the people I would look to for strong scrutiny of the Act for potential breaches of rights and to lead discussion in that regard.

With or without this JIS report of the Minister’s speech, these are issues for consideration prior to passage of the Act. There are others that I will also raise in future posts.

 


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Does the National Identification & Registration Act Go Too Far?

This is the second weekend in a row that I have spent some time reading through a Bill recently tabled in the Parliament. This time it was the National Identification and Registration Act, 2017, tabled by Prime Minister Holness during his Budget Debate contribution in March. NIDS Bill title

In tabling the Bill, PM Holness said:

This Bill is consistent with a rights-based approach to ensuring that every citizen of Jamaica can be identified and known to the state, so that their rights and entitlements can be preserved and planned for in advance. This will create a tremendous public good by reducing transaction time and cost.

Mr. Speaker, the Registrar General Department will be transformed into the National Identification and Registration Authority and will be responsible for implementing the project. Funding for the project is being negotiated through the IDB and a detailed work plan is already prepared. We expect to be piloting the project in September next year.

From Contribution to the 2017/18 Budget Debate by PM Andrew Holness

Having read through the Bill, I certainly think that it needs to be considered by a Joint Select Committee to benefit from “the closer scrutiny of the Parliament”, as PM Holness said in relation to the Law Reform (Zones of Special Operations) (Special Security and Community Development Measures) Act.

The Act will establish the National and Civil Identification Database and will empower the Government to collect a variety of biographic and biometric information about each citizen of Jamaica and other individuals who are ordinarily resident in Jamaica. The range of information is set out in the Third Schedule of the Act:

NIDS Bill data aNIDS Bill data bNIDS Bill data cNIDS Bill data d

This isn’t even the final list, as the definitions of both “biographic information” and “biometric information” in the Interpretation section of the Act allow for additional data to be included in the Regulations, by referring respectively to “and such other information as may be specified in the regulations” & “or such other biological attribute of the individual as may be specified in the regulations”. The Regulations referred to haven’t yet been drafted or made public, so there is no way of knowing at this point what they might include in the first instance or in the future. (In fact, in more than a dozen places in the Bill, further details are relegated to the Regulations, in some instances leaving me feeling that the country is being asked to sign a contract now and find out the details later. With the devil so often lying in the details, perhaps the Regulations need to be brought to Parliament alongside the Bill or the details need to be included in the Bill itself.)

It is also important to note that Section 58 of the Act gives the power to the designated Minister (who is the Prime Minister in this Act) to amend Schedules: NIDS Bill Section 58

So at some point in the future, a Prime Minister could decide to amend the Third Schedule to include DNA as one of the biometric identifiers the Government would have the power to collect from every Jamaican citizen for storage in the database.

But without going to future possibilities, a look at the existing list includes items that need to be deleted. For example, A 9. The religion of the individual. Why would it be necessary for the Jamaican Government to inquire into, collect, record and store in a permanent database the religion of every citizen of Jamaica? Other items among the biographical information need to be similarly questioned.

The biometric information is of particular concern, as one can hardly get more intrusive of a person’s privacy than to collect such data. Each of those items from A 22 – 33 needs to be carefully reconsidered. The Government will seek to reassure that the data will be secured and protected and only accessed under certain circumstances. I think it needs to be questioned whether by the simple fact of your being born in Jamaica, an act in which you have no choice whatsoever, the Government should have the power in law to collect all this biometric information from you.

There are other aspects of the Bill that need to be carefully considered and I plan to do further posts on this. At the core of the legislation, however, is the information the Government intends to collect about each citizen and so this is a good place to begin.