Mauritius: Decision Of The Judicial Committee Of The Privy Council On Smart ID Card

Last Updated: 9 January 2017
Article by Ammar Oozeer

Madhewoo v. The State of Mauritius and another [2016] UKPC 30

There is a legal obligation on every person who is a citizen of Mauritius to have an identity card within six months of reaching the age of 18. The National Identity Card Act ('the Act') was amended in 2013 to implement a scheme for a new smart identity card for Mauritian citizens. Under the new law, every adult citizen of Mauritius is under an legal obligation to apply for a new biometric identity card to replace the previous one. To obtain the new identity card, a person must provide biometric information, namely their fingerprints and photograph. The minutiae of the fingerprints are extracted and such data are recorded and stored in a central database kept and managed by the Registrar of Civil Status. Ammar Oozeer, Barrister at Law at BLC Robert & Associates, discusses in detail a case before the Supreme Court relating to the compulsory requirement to take and record a Mauritian citizen's fingerprints as required under the Act.

Before the Supreme Court

The matter was heard before three judges and the decision was delivered on 29 May 2015. Their Lordships held that: (a) the law which imposes the compulsory taking and recording of fingerprints of an adult Mauritian citizen for the purposes of his/her national identity card discloses an interference with Mr Madhewoo's right against the search of his person guaranteed under Section 9(1) of the Constitution; (b) the law which enforces the compulsory taking and recording of fingerprints for the purposes of a national identity card constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution; (c) the law providing for the storage and retention of fingerprints and other personal biometric data regarding the identity of a person constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution; and (d) the provisions in the Act and the Data Protection Act 2004 for the storage and retention of fingerprints of the biometric identity card of a citizen of Mauritius are unconstitutional.

Before the Judicial Committee of the Privy Council

On 24 November 2015, Mr Madhewoo ('the Appellant') was granted leave by the Supreme Court to appeal before the Board of the Judicial Committee of the Privy Council ('the Board').

The Appellant challenged the constitutionality of (a) the legal obligation imposed by the State to provide fingerprints and other biometric information under Section 4 of the Act; (b) the storage of the identity card data on a database; (c) the compulsory production of an identity card to a policeman who makes a request for production; and (d) the penalty provided for non- compliance with a request for production of an identity card by a policeman.

As regards Section 4 of the Constitution, which protects the right to life, the Board held that this section is not engaged as it is concerned with the deprivation of life and "not with any suggested diminution in the quality of life resulting from having to provide fingerprints and biometric information."

The Board further held that Section 7 of the Constitution, which protects against torture and inhuman and degrading treatment, is not engaged. It was argued on behalf of the Appellant that he felt he was treated as a criminal when compelled, under criminal sanction, to provide fingerprints. Their Lordships stated that "the Appellant's fear of degradation and stigmatisation because he saw himself as being treated in the same way as a criminal has to be [balanced] by a recognition that every citizen over 18 years of age in Mauritius is required to provide his or her fingerprints for the purpose of the identity card."

The Board confirms the decision of the Supreme Court that the compulsory taking of fingerprints and the extraction of minutiae involve an interference with the Appellant's right under Section 9(1) of the Constitution not to be subjected to bodily harm except with his consent. It is to be noted that this right is not absolute. A limitation to the right not to be subjected to bodily search is permissible, under Section 9(2) of the Constitution, if provided by law in the interests of, inter alia, public order. The exception would be permissible, in the words of the last part of Section 9(2) of the Constitution, 'except so far as that provision or as the case may be the thing done under its authority, is shown not to be reasonably justifiable in a democratic society.' In addressing whether the obligation to allow an individual's fingerprints, and other biometric information about himself/herself, to be taken and recorded, constitutes a justified interference under Section 9(2) of the Constitution, the Board approves the test used by the Supreme Court, namely whether the measure pursued a legitimate aim, whether the reasons given by the State for the interference in pursuit of that aim were relevant and sufficient, and whether the measure was proportionate to the aim pursued. The Board did not have issue with the Supreme Court's assessment that the taking of fingerprints within the applicable legal framework pursues a legitimate purpose of "establishing a sound and secure identity protection system for the nation and thus answers a pressing social need affording indispensable protection against identity fraud." Their Lordships of the Supreme Court observed that such a purpose "is vital for proper law enforcement in Mauritius." Their Lordships went on to state that taking into account the appropriate safeguards in the taking of the fingerprints for their insertion on the smart identity card, and the relatively limited degree of interference involved, such interference is proportionate to the legitimate aim pursued.

As regards the storage and retention of fingerprints and other biometric data, the Board held that a law which provides for the storage and retention of such information regarding the identity of a person in principle constitutes a permissible derogation, in the interests of public order, under Section 9(2) of the Constitution.

Originally published by Data Protection Leader.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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