Jamaican Supreme Court Strikes Down National Identification Act, Praises Justice DY Chandrachud's Dissent Judgement in Aadhaar case!
In a far-reaching judgment, the Constitutional Court in Jamaica has unanimously declared the National Identification and Registration Act (NIRA) as 'unconstitutional, null, void and of no legal effect'. In the judgement, the Constitutional Court widely referred to judgements passed by Indian Supreme Court, especially of Justice Dhananjay Y Chandrachud in the Right to Privacy and Aadhaar cases. 
 
The three-judge bench of Chief Justice Bryan Sykes, Justice David Batts and Justice Lisa Palmer Hamilton,said, "The NIRA is unconstitutional null and void insofar as it is intended to make compulsory the taking of biometric and other data so as to provide a national identification number and card for every citizen and resident of Jamaica. The involuntary nature of the policy infringes guaranteed constitutional rights.” 
 
“Furthermore, the statute seeks to prevent access to services both public and private, or to make possible the denial of such services, to citizens who fail to obtain the said national identification. There is further no, or no adequate, mechanism to prevent the utilisation of the data obtained for other purposes such as the creation of profiles. The danger of a 'big brother state' or as the Supreme Court of India called it, a 'surveillance state' is real. The wide ranging provisions for information sharing and verification, as well as identity confirmation by public and private sector, adds to that reality," the Court said.
 
In the judgement, Chief Justice Sykes, specifically mentioned he preferred views of Justice Chandrachud than the majority from the Aadhaar judgement of September 2018. "From reading the judgments in this (Aadhaar) case, Justice Dr Chandrachud, in my respectful view, demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority or the other judges, who delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or anyone having control over one’s personal information and generally I preferred his approach to the issue over that of the other judges." 
 
"Unlike the majority in Puttaswamy (26 September 2018) (Aadhaar case), who seemed to have taken a rather benign view of this aspect of the matter Justice Dr Chandrachud destroyed the notion that merely because similar or identical information is already in the possession of the state that in and of itself makes taking of such information again legitimate. His Lordship clearly understood the implication of collecting biographical information, combining it with biometric then automating the process with supporting algorithms. Add to that the possibility of profiling. This scenario translates into great power over the lives of persons especially when that data and technology are in the hands of the state and powerful private actors as in Google, Amazon and the like. Of course, with the latter, the engagement is consensual or at the very least the person can opt out after sometime. What NIRA is proposing is control over vast amounts of data, no opt out and linking the data held in different silos by a unique identification number, thereby reducing anonymity even further and increasing the possibility of profiling and generating new information about the data subject," Chief Justice Sykes added.
 
The Constitutional Court in Jamaica also observed that the majority judgement in the Aadhaar case did not fully understand technological aspects of the UID in India. It stated, "The combination of all that data with algorithms in the age of artificial intelligence makes it possible to now generate facts that would not otherwise be known about the individual and those facts are not relevant to the purpose of identification. We are now in the era of ‘self-learning’ machines that is machines that can itself create new knowledge without any programming. These machines are able to do this from the data it already has. Respectfully, the majority in Aadhaar case did not seem to have a full understanding of this and its implications in the say that has been demonstrated by Justice Dr Chandrachud."
 
"Notwithstanding the far reaching decision of the majority, I am inclined towards the view of Justice Dr Chandrachud in his dissenting judgment. That learned Judge recognised that technology has caused our institutions of governance to face new challenges. 'Technology questions the assumptions which underlie our processes of reasoning. It reshapes the dialogue between citizens and the state. Above all, it tests the limits of the doctrines which democracies have evolved as a shield which preserves the sanctity of the individual'. At paragraph 3 of his judgement he starkly sets forth the import of the decision: 'Technology, confronts the nature of freedom itself'. 'The case', he asserts at paragraph 5, 'speaks to the need to harmonise the commitment to social welfare while safeguarding the fundamental values of a liberal constitutional democracy'," the bench said.
 
On the proportionality test as well, the Jamaican apex court found Justice Chandrachud more reasonable than the majority. "This judge (Justice Dr Chandrachud), in his dissent, applied the same proportionality test as did the majority but arrived at a different result. His decision is sufficiently important, and so reflective of my own views." 
 
"This learned Judge, in his dissent, also decided that the proportionality test failed because the Act allowed private entities to use Aadhaar numbers. This he said would lead to commercial exploitation of the personal data and profiling without consent. Profiling can be used to predict market behaviour and preferences and even influence the choice for political office. These are contrary to privacy protection norms. Susceptibility to communal exploitation renders the relevant provisions arbitrary. The failure to define 'services and benefits' also was unreasonable and disproportionate," Chief Justice Sykes said.
 
"In words, which I respectfully wish to adopt as my own," the Jamaican Chief Justice said, "the learned Judge (Justice Chandrachud) summarised the overall constitutional failings of the Aadhaar scheme thus, 'Identity is necessarily a plural concept. The Constitution also recognises a multitude of identities through the plethora of rights that it safeguards. The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about identification and is an instrument, which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.”
 
Last year on 26th September, the Supreme Court of India, in a majority judgement, had held validity of Aadhaar for welfare schemes. The Constitutional Bench also said Aadhaar cannot be mandated for opening of bank accounts or for mobile connections and the notification issued by department of telecom (DoT) for making Aadhaar linking to mobile phones mandatory is unconstitutional.  
 
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BV SUDHANVA

3 days ago

contempt of court on the jamaican supreme court?

Assange personifies contradictions of US politics, challenges media
Once hailed by the left as the champion of transparency and reviled by the right as a leaker of state secrets, Julian Assange is now trapped between them having played a role in the rise of a right-wing president and in the spread of hidden information embarrassing to the progressives.
 
As the founder of WikiLeaks, Assange, was among the first to demonstrate the tremendous power of the Internet and digital technology to pierce the secrecy of governments and impact politics and society.
 
The media fed off WikiLeaks data dump that he facilitated, even as it stayed a hands breadth away from legal complicity in obtaining the classified information for which others - and now Assange - paid the price.
 
Assange straddled the worlds of cyber activism and journalism as WikiLeaks is viewed as a media platform of which he had been the publisher.
 
Now the media is torn by his arrest, whether to defend him or to walk away, also has to calculate the impact on the profession. 
 
 
Democratic Party Representative Tulsi Gabbard tweeted: "The arrest of Julian Assange is meant to send a message to all Americans and journalists: be quiet, behave, toe the line. Or you will pay the price."
 
A writer in the Columbia Journalism Review warned: "Going forward, journalists will need to be vigilant. Assange's case is specific, but the way the Justice Department responds to his arrest could have serious implications for all of us." 
 
The American Civil Liberties Union also highlighted the threat to journalists. One of its project directors, Ben Wizner, said: "Any prosecution by the US of Assange for WikiLeaks' publishing operations would be unprecedented and unconstitutional, and would open the door to criminal investigations of other news organisations." 
 
So far, the US government has not charged him with espionage or aiding the enemy, which could directly involve the journalistic aspects of the leaks. He was charged in a federal court near Washington with only "conspiracy to commit computer intrusion" for allegedly helping the former Army intelligence analyst Chelsea Elizabeth Manning crack passwords to ultra-secret computer networks that she used to get the information for him.
 
WikiLeaks and Assange became central to the allegations of Russian interference in the 2016 US elections and collusion with President Donald Trump that have dominated American politics since then. 
 
Special Counsel Robert Mueller, who investigated the allegations, found that Russia had meddled in the polls through the leak of embarrassing material about the Democratic Party and Hillary Clinton, but he has absolved Trump of involvement.
 
This makes Assange less of a sympathetic character to the progressives and Democrats - and the media - because of Clinton's defeat.
 
Assange had first earned the wrath of the conservatives and the type of people forming Trump's base because of the government secrets he got from Manning, before she underwent sex-change and was then known as Bradley, in 2010. Of the more than 750,000 documents and other material she gave Assange in 2010, the most damaging to the US were videos of military action in Iraq involving civilians. 
 
The Australian computer geek-turned-activist, Assange, shared them with media organisations producing hundreds of investigative stories around the world, not only on military affairs, but also diplomatic operations and internal political and economic affairs of many countries including India. These made enemies for him around the world.
 
But the trove of emails and documents purloined from Democratic party officials showing a bias in the party's leadership against Bernie Sanders, the leftist challenging Clinton, marked a turn of events. The disclosures led to the resignation of Democratic National Committee Chair Debbie Wasserman Schultz and other officials.
 
The upheaval that followed and the disenchantment of Sanders supporters is blamed for Clinton's defeat by President Donald Trump.
 
The Moscow's had was seen behind the leaks making Russia central to her defeat in the eyes of her supporters and Special Counsel Robert Mueller was appointed to investigate if Trump had colluded with Russians.
 
Although Assange denied he got them from the Russians, Mueller charged Russian hackers known as Guccifer 2.0 with the hack.
 
Secretary of State Mike Pompeo exemplifies the dichotomy about Assange. On Thursday, he said about his arrest: "I don't have anything to say. There's a legal proceeding now." 
 
But as the Central Intelligence Agency director in 2017, he called WikiLeaks "a non-state hostile intelligence service often abetted by state actors like Russia". He added that US intelligence had determined that the Russian military intelligence agency GRU had used WikiLeaks to release information it had gotten through hacks against the Democratic National Committee. 
 
The WikiLeaks disclosures about India, mostly from US diplomatic cables going back several years, included material about contacts between politicians, public figures, journalists and civil society contacts with diplomats as well American diplomats' views of Indian developments right down to the microlevel of happenings in states.
 
Assange's accomplice in the court filings in the US, Manning was court martialed on 22 charges including aiding the enemy and was sentenced in 2013 to 35 years in a military prison. However, former President Barack Obama commuted to seven years before he left office and freed how.
 
But she is back in prison after a judge last month ordered her held indefinitely for refusing to testify before a court panel, known as a grand jury, investigating Assange and WikiLeaks.
 
Now in British custody, Assange like other fugitives such as Nirav Modi and Vijay Mallya, will try to fight the extradition to the US or Sweden using the British judicial system.
 
Trump, meanwhile, has refused to be drawn into a discussion of his arrest or role. "I don't really have an opinion. The Attorney General will be involved in that and he will make a decision," he said.
 
Disclaimer: Information, facts or opinions expressed in this news article are presented as sourced from IANS and do not reflect views of Moneylife and hence Moneylife is not responsible or liable for the same. As a source and news provider, IANS is responsible for accuracy, completeness, suitability and validity of any information in this article.
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Wikileaks' Julian Assange Arrested in London
After Ecuador terminated its political asylum, Wikileaks' founder Julian Assange on Thursday was arrested by the British police inside Ecuadorian embassy in London, , seven years after he took refuge there to avoid extradition to Sweden in a sexual assault case that has since been dropped.
 
 
In a tweet, Lenin Moreno, president of Ecuador said the country decided to withdrew asylum to Mr Assange for his repeated violations to international conventions and daily-life protocols.
 
According to reports, the Ecuador president also made it clear that Mr Assange will not be extradited to a country with death penalty.
 
Reacting strongly on Mr Assange's arrest, Edward Snowden, another whistleblower, called this as dark moment in press freedom. In a tweet, he says, "Images of Ecuador's ambassador inviting the UK's secret police into the embassy to drag a publisher of--like it or not--award-winning journalism out of the building are going to end up in the history books." 
 

 

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Mohan Krishnan

7 days ago

Assange is of no use to UK. He can be handed over to US as a criminal whistle blower as a friendly gesture.

But Nirav, Lalit and VIjay are not criminals. They have money and UK loves them.

UK laws revolves around the money.

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