No one will have a criminal record if they refuse to enrol on the National Identification System (NIDS).
This was disclosed by Attorney General, Marlene Malahoo-Forte, in her submissions for the government today in the Constitutional Court.
The constitutionality of the law giving rise to the NIDS, the National Identification and Registration Act, is being challenged in that court. The matter has been brought by the Opposition People’s National Party.
The Opposition is arguing that the Act breaches several rights of Jamaicans. The PNP argues that the compulsory nature of the Act is what makes the law impact a person’s rights.
The Opposition argues that the Act infringes upon several rights, including a person’s right to liberty.
The NIDS Act says a person who refuses to enrol will be prosecuted. It says the person will have to pay a maximum fine of $100,000. Those who don’t pay the fine would be convicted.
Mrs. Malahoo Forte argued that the conviction wouldn’t form part of their record. She says they also wouldn’t face imprisonment but would be subject to some other penalty under the Criminal Justice Reform Act.
Justice David Batts, who is one of the three presiding judges, noted that even though the conviction is not recorded, doesn’t mean the person is not considered a convict or criminal.
Chief Justice Bryan Sykes also questioned why the law didn’t provide for a civil penalty instead of a criminal prosecution. Justice Sykes also asked if there wasn’t any other way that enforcement could be carried out without a fine being imposed.
The Attorney General in response stated that this was a standard way of enforcing the law in varying types of legislation. In particular, it was also alleged yesterday that one aspect of the Act would treat Jamaicans unfairly in comparison to non-Jamaicans.
Today, during her submission, Mrs Malahoo Forte was asked what would happen in the case of a Jamaican who has been living outside of the country for many years. Those persons she says upon visiting would have to give a reasonable or lawful excuse to access services.
The PNP has also submitted that the Act breaches the protection of property rights. The Opposition says the Act which requires the collection and storage of personal data or information violates the protection of property rights.But, the Attorney General says there’s the prohibition of disclosure.
Mrs Malahoo Forte says the Act states specifically when data would be disclosed. Some of these disclosure stipulations include the identification of bodies of deceased persons, to identify missing persons and also through the authority of the court.
Disclosure can also be made in areas for the prevention or detection of crime, in a state of emergency, for national security reasons or in matters having to do with the Proceeds of Crime Act.
In the meantime, the Attorney General was questioned extensively about the data that would be taken from citizens. She explicitly said that under the NIDS Act there’s no requirement for DNA.
However, persons may give their blood type. Justice Sykes asked if a person’s DNA could be determined from giving their blood type. And, Mrs Malahoo Forte said no.
The Attorney General is to resume her submissions tomorrow morning at 10:00 when the hearing enters its third day.