3 takeaways from the Jamaica Supreme Court’s ruling to strike down the National ID System Act

Jamaica has been in the process of setting up a national ID system. Now, the entire initiative is in peril, thanks to a recent ruling by the country’s Supreme Court, which has struck down the law upon which the ID system was being established. What are some of the learning we can take away from that experience? We outline three takeaways.

Starting in late 2017, we, at ICT Pulse, have had a few discussions on the proposed National Identification System (NIDS), and the associated legislative framework, which Jamaica was in the process of implementing. In one of our November 2018 podcast episodes, with Grace Lindo, attorney at law, and Partner at Nunes, Scholefeld, DeLeon & Co, in Jamaica, she mentioned that the NIDS Act had been legally challenged as being unconstitutional. At the time of our conversation, the matter had been heard by the Supreme Court of Jamaica, and the parties were awaiting the decision.

By way of a quick overview, Jamaica does not have a single national identification (ID) document. Similar to countries where that is the case, an individual’s driver’s licence, passport, and other government-issued documents are used, but for various reasons, a broad cross-section of citizens might not have any official identification document.

In 2017, a NIDS Bill was tabled and was widely criticised. However, the ruling Government did not address the fundamental difficulties expressed by many stakeholders, and with much resistance, it was promulgated into law. The opposition party took the Government to court on the matter, and a decision was finally issued on Friday, 12 April 2019.

The ruling, which is 309 pages long, and is available on the Supreme Court of Jamaica website; but in summary, the Court struck down the NIDS Act in its entirety, on the basis that several key provisions were indeed unconstitutional.

Although the decision was not unexpected in many quarters, to some degree, both the Government and the country at large are reeling from the outcome. Further, considerable work has already begun on implementing the NIDS, which at this juncture may have been all for naught. To that end, here are three lessons, we believe, the tech community can take away from the NIDS experience in Jamaica.

1. Speed to market should not be at the expense of having a sound foundation

In recent times and in the tech space, in particular, there has been an emphasis on speed to market, that is, getting products (goods and services) in the hands of consumers as soon as possible, and thereafter, improving them along the way. This construct is readily evident in the smartphone market, where yearly, the major manufacturers release new devices, which might only be minor improvements on previous versions, or newly added features are still quite buggy, and are patched continually after the phones are available for purchase.

In the case of the NIDS legislation, the Government was eager to have it passed, and so essentially overruled calls by the Opposition for more detailed examination of the then Bill, especially in light of the latter’s concerns, and those voiced by a wide cross-section of stakeholders. However, in its decision, the Supreme Court was of the view some of the provisions of the Act were unconstitutional – which essentially points to the foundation of the NIDS framework.

Had the Government been prepared to facilitate the review – address the core concerns, which was the basis for the litigation – they would not be in the current position, where all of the money and effort to begin to set up NIDS might have been wasted. In a similar vein, ought to ensure that their products have been developed on a strong foundation, to avoid compromising themselves, and their products, in the long run.

2.  Do not lose focus on consumer rights

The Internet was initially conceptualised as an open and distributed network where, to be fair, there were very few rules. This open environment created an attractive backdrop for innovation, evidenced by the products and services that we enjoy today.

However, even in that medium, regulation is beginning to take hold. Entities, such as Google and Facebook, are finding their every move scrutinised, and increasingly, they are being required to shoulder more the responsibility for the influence they wield. In other words, the “Wild, Wild West” days of the Internet is giving way to consumer rights, consumer privacy and data protection, to name a few.

Referring to the NIDs framework, the Act sought to mandate the collection of biometric data, and to penalise those who did not conform to its requirements, such as by barring them from accessing government services. While generally, a NIDS could benefit Jamaica as a whole, it is untenable for it to trample of the basic – constitutional – rights of citizens/consumers.

To that end, online businesses need to be more mindful of consumer rights and protection. Although in the Caribbean, for example, some of those frameworks might not be as developed as in other countries, increasingly, these frameworks are being designed to have extra-jurisdictional reach. Hence, the standards and expectations globally, with respect to consumer rights and protection, are getting higher, and cannot be avoided.

3.  Be prepared to go back to the drawing board and start from scratch

Finally, following from the first point, and noting that in its ruling on the NIDS Act, the Supreme Court did not seek to excise the offending provisions. Essentially, it was of the view that with those provisions omitted, what remained could not stand on its own. Hence, the Government could not perform a patch job on the Act, but ought to go back to the drawing board and start from scratch.

In a similar way in the tech space, it may be possible to iterate a concept only to a certain point. However, for that product or service to continue to evolve, a comprehensive review and re-think of the initial concept or framework might be necessary to generate new ideas, and a new path forward.

Having said this, people frequently talk about ‘not re-inventing the wheel’ – to mean using or being guided by earlier models or blueprints to fully conceptualise or implement a project. However, in doing so, it is easy to be limited by those  earlier structures, just make cosmetic changes, and not ensure that the output is fully aligned with your client’s (or your country’s) needs.

Image credit:  Andrew F. Scott P6033602 (flickr)