Martin Henry | NIDS and the responsibilities of the people’s representatives
In the words of Member of Parliament for South-East St Andrew, Julian Robinson, who happens to also be the general secretary of the People’s National Party, the striking down of the NIDS law in a Supreme Court ruling “is a vindication of the value of the Jamaican Constitution and its Charter of Fundamental Rights and Freedoms and the right it gives to every Jamaican to ensure that the laws which Parliament enacts is consistent with the Charter of Rights.”
Robinson had filed the motion against the NIDS Act on behalf of himself and his constituents, arguing that the National Identification and Registration Authority (NIRA) Act 2017 passed by the Government side in Parliament on November 21, 2017, during an Opposition walk-out, was a trespass upon the rights and freedoms of citizens.
At the time, I cheered on the action as a demonstration of the system working in the interest of the people, with the Opposition facing an impasse in the Legislature in the discharge of its constitutional duty turning to the Judicial Branch of Government for a resolution.
In ‘On with the NIDS Challenge’ (June 3, 2018), I wrote: “On May 8, the parliamentary Opposition filed a motion in the Supreme Court, asking the court to rule that sections of the act for the establishment of a National Identification System breach guaranteed constitutional rights of Jamaican citizens and legal permanent residents of Jamaica and should be declared null and void and struck down.”
Both morning dailies carried the same headline for their front-page lead story the day after the filing: ‘NIDS battle’. It is a very important and useful battle. Not only for the specific matter of determining the constitutionality of elements of the NIDS Act, but for the matter of using the judicial branch of government to determine the legitimacy of laws enacted by the legislature and to interpret the Constitution.
In a record-breaking turnaround time, a three-member Constitutional Court, headed by the chief justice himself, heard arguments over three days, October 22-24, 2018, and delivered its 309-page judgment in an unprecedented live-streamed event on April 12, 2019. The case was concluded a mere 11 months after the motion was filed. This is a great moment for the judiciary, not only for its defence of the Constitution against encroachments by the Legislature, but in the timely fashion in which it discharged its constitutional duty.
A NIDS is both necessary and inevitable. But it cannot be without rigorous safeguards of the constitutional rights and freedoms of citizens and the proper protection of their privacy and personal data. This is what the parliamentary Opposition fought for, both in the Parliament (unsuccessfully) and through the courts (successfully).
The Constitutional Court agreed that the NIRA Act was in clear breach of eight of the 25 fundamental rights and freedoms of citizens enumerated in the Charter of Fundamental Rights and Freedoms, leaving the law so compromised, the chief justice said in his presentation of the ruling, that the rest of it could not stand.
In a press conference the day the motion was filed, the leader of the Opposition made it clear that “we are in support of a National Identification System, and we believe a properly constituted national ID system would be beneficial to Jamaica, but the NIDS bill, as currently constructed, infringes on the rights of a number of Jamaicans in some critical ways”.
We have come to view the Opposition mostly as a government-in-waiting relentlessly, and sometimes mindlessly attacking the plans and policies of the Government and shouting loudly that they can do it better. The Constitution intended for the Opposition, the critical role of being the principal bulwark against any trespass upon the rights and freedoms of the people by the Government, wielding State power and functioning as the principal defender of the Constitution itself from any incursions against it. The NIDS case, which went before the Supreme Court, is role fulfilment.
The law, having been struck down, is back to the legislative drawing board, walking a new Bill through a joint select committee, which will allow critical inputs from the watchdog Opposition, from citizens wishing to fulfil their duty to influence legislation, and which, in this particular case, will have the unprecedented benefits of a clear and comprehensive judicial judgement. NIRA II should be a good law! The Supreme Court is not used nearly enough as a constitutional court.
NO JOB DESCRIPTION
New Member of Parliament Ann-Marie Vaz (Government, Portland Eastern) was sworn in last week Tuesday without the encumbrance of a ‘job description’.
What are the people’s representatives in the House of Representatives sworn to do? Under Powers and Procedure of Parliament, at Section 48 (1), the Constitution simply and rather briefly (some would say too briefly) says: “Subject to the provisions of this Constitution, Parliament may make laws for the peace, order, and good government of Jamaica.”
The first thing that is clear is that the actions of Parliament must conform to the Constitution.
In principle, any member of Parliament can bring a member’s motion to the floor. In practice, it is the Executive through the ministers who mostly table bills.
While Juliet Cuthbert-Flynn’s (St Andrew West Rural) motion for the decriminalisation of abortion has gained traction and is before a House committee, there are several private members’ motions lying comatose on the Table of the House, including Fitz Jackson’s (St Catherine Southern) highly popular banking regulations motion. This is a travesty. Provisions should be made for the regular debating of private members’ motions, which allows every elected representative with no regard to party to fulfil their most basic parliamentary responsibility.
The Constitution, in its wisdom, has divided the Parliament into ‘government’ and ‘Opposition’. The Government side is a majority of MPs supporting one of their own to be appointed prime minister. The leader of the Opposition is appointed as that member who has the support of most of the members who do not support the government majority. As we have seen in the Supreme Court NIDS ruling, one of the most important functions of the Opposition is to scrutinise the constitutionality of laws proposed.
A law-making strategy, only poorly developed in our Parliament but perfected by the American Congress, is to attach riders to proposed legislation in exchange for giving support. This is particularly potent for government backbenchers to influence law and policy in the direction of the interests of their own constituents. The grip of party loyalty strangles this strategy.
The minister of justice is faced with the embarrassment of outdated laws with absurdly low fines in today’s money. He has pledged to drag these laws into the 21st century. Between making new laws for “the peace, order, and good government of Jamaica” and overhauling old legislation, the Legislature could be gainfully employed over more and longer sittings.
ONE OF THE LAZIEST
The Jamaican Parliament, as I have shown in other columns, is one of the laziest in the Commonwealth, based on its number of sittings per year.
The entire membership makes up the Standing Finance Committee of Parliament, which determines the annual Budget. A proper Budget process would provide enormous opportunities for parliamentarians to influence policy, plans, and programmes to be executed by the Executive in the best interest of their constituents, and, more broadly, for “the peace, order, and good government of Jamaica”.
But how are the people’s representatives to ‘assist’ the people?
The Constituency Development Fund is not the answer. Even without invoking its trespass upon the hallowed constitutional principle of the Separation of Powers, which I often do in my railings against the CDF, the likkle money can only allow the MP to deliver discriminatory benefits since it cannot possibly reach equitably all the qualified needy people in any category of need.
The arm of Government that delivers services to the people, according to the policies, plans, and programmes of the Executive, as ratified by the Legislature, is the Public Service. A very important service role of the people’s representatives is to police the performance of public agencies in the interest of the people, first in their own constituency and then more broadly nationally.
Between serious legislative engagement, engagement with the formulation of policies, plans, and programmes, and monitoring the delivery of public services to the people through public agencies, the MP would have little time for playing boops, a role for which they have no constitutional authority.
I want someone to file a motion in the Supreme Court testing the constitutionality of the Constituency Development Fund. I am sure Julian Robinson won’t. The CDF is one of the few things with rock-solid bipartisan support among the people’s representatives.