Madhewoo v The State of Mauritius and another (Mauritius)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hodge |
| Judgment Date | 31 October 2016 |
| Neutral Citation | [2016] UKPC 30 |
| Docket Number | Appeal No 0006 of 2016 |
| Court | Privy Council |
| Date | 31 October 2016 |
[2016] UKPC 30
Privy Council
From the Supreme Court of Mauritius
Lord Mance
Lord Clarke
Lord Wilson
Lord Sumption
Lord Hodge
Appeal No 0006 of 2016
Appellant
Sanjeev Teeluckdharry Erickson Mooneapillay (Instructed by Blake Morgan LLP)
Respondents
James Guthrie QC Kamlesh Domah (Instructed by Royds Withy King)
The National Identity Card Act 1985 ("the 1985 Act") provides for adult citizens of Mauritius to carry identity cards which bear their names and signatures. More recently, the government proposed to introduce a new smart identity card, which incorporates on a chip the citizen's fingerprints and other biometric information relating to his or her external characteristics. The National Identity Card ( Miscellaneous Provisions) Act 2013 ("the 2013 Act") is the legislative vehicle which was enacted for this scheme, which it effected by amending the 1985 Act.
Mr Maharajah Madhewoo ("the appellant"), a citizen of the Republic of Mauritius, has not applied for a biometric identity card. He challenges the constitutionality of the 2013 Act by seeking redress under section 17 of the Constitution, which allows a person to apply to the Supreme Court for redress if he alleges that any of sections 3 to 16 of the Constitution, which set out the individual's fundamental rights and freedoms, "has been, is being or is likely to be contravened in relation to him".
Section 3 of the 1985 Act (as amended) provides for the Registrar of Civil Status to keep a register in electronic or other form in which the particulars of every citizen would be recorded. Section 3(2) provides that the particulars to be recorded on the register shall be the sex and names of the person and such reasonable or necessary information as may be prescribed regarding the identity of the person. The particulars which were prescribed for recording on the register included both fingerprints and encoded minutiae of fingerprints: the National Identity Card (Particulars in Register) Regulations 2013, regulation 3 ("the 2013 Regulations"). As explained in para 11 below, these Regulations were later repealed.
Section 4 of the 1985 Act (as amended) provides that every citizen within six months of attaining the age of 18 must apply for an identity card at an office designated by the registrar. Section 4(2) provides:
"Every person who applies for an identity card shall —
(a) produce his birth certificate or his certificate of registration or naturalisation as a citizen of Mauritius, as the case may be;
(b) produce such other documents as the Registrar may require;
(c) allow his fingerprints, and other biometric information about himself, to be taken and recorded; and
(d) allow himself to be photographed,
for the purpose of the identity card."
Section 5 provides that the identity card shall bear the person's names, date of birth, gender, photograph, signature or thumbprint, and NIC number and also the date of issue and (in section 5(2)(h)) "such other information as may be prescribed". The appellant has expressed concern that the latter provision could result in the inclusion of medical and health data on the chip in the identity card, but the Government has not prescribed the inclusion of such data and one of its witnesses, Mr Ramah, the project director of the Mauritius National Identity Scheme ("MNIS"), gave evidence that no such data has been recorded on the cards.
Section 7 of the 1985 Act (as amended) provides:
"(1) Every person may —
(a) in reasonable circumstances and for the purpose of ascertaining the identity of another person; or
(b) where he is empowered by law to ascertain the identity of another person,
request that other person to produce his identity card where that person is a citizen of Mauritius.
(1A) Where a person is required to produce his identity card in accordance with subsection (1)(b), he shall —
(a) forthwith produce his identity card to the person making the request; or
(b) where he is not in possession of his identity card, produce his identity card within such reasonable period, to such person and at such place as may be directed by the person making the request.
(2) Where any person is required to produce evidence of his identity, it shall be sufficient for that purpose if he produces his identity card."
Section 9(2) of the 1985 Act (as amended) provides that it is an offence to contravene the Act or any regulations made under it; and section 9(3) provides that the maximum penalties for an offence are a fine of 100,000 rupees and imprisonment for a term of five years. Section 12 provides that the collection and processing of personal data, including biometric information, under the Act shall be subject to the Data Protection Act.
In this appeal the appellant challenges the constitutionality of (a) the obligation to provide fingerprints and other biometric information under section 4, (b) the storage of that material on the identity card under section 5, (c) the compulsory production of an identity card to a policeman under section 7(1A) in response to a request under section 7(1)(b), and (d) the gravity of the potential penalties under section 9(3) for non-compliance. He claims, first, that the implementation of the new biometric identity card is in breach of sections 1, 2, 3, 4, 5, 7, 9, 15, 16 and 45 of the Constitution coupled with article 22 of the Civil Code (which provides that everyone has the right to respect for his private life and empowers courts with competent jurisdiction to prevent or end a violation of privacy) and, secondly, that the collection and permanent storage of personal biometric data, including fingerprints, on the identity card are in breach of those sections of the Constitution and that article of the Civil Code.
In an impressive judgment dated 29 May 2015 the Supreme Court (Balancy SPJ, Chui Yew Cheong and Caunhye JJ) upheld part of the appellant's challenge under section 9(1) of the Constitution, which provides:
"Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises."
The Court stated that the Constitution must be given a generous and purposive interpretation and held that
"The protection under section 9(1) would clearly be against any form of undue interference by way of a search of any part of the body of a person without his consent. The coercive taking of fingerprints from the fingers of a person and the extracting of its minutiae would thus clearly fall within the scope of the protection afforded to the integrity and privacy of the person under section 9(1) of the Constitution."
The Court therefore held that the provisions of the 1985 Act (as amended) which enforce the compulsory taking and recording of fingerprints of a citizen disclosed an interference with the appellant's rights guaranteed under section 9(1) of the Constitution. The Court rejected the submissions that the other provisions of the Constitution and the article of the Civil Code had been breached.
Having held that there was interference with a right guaranteed by section 9(1) of the Constitution, the Supreme Court went on to consider whether that interference was justified under section 9(2) which provides:
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
(a) in the interests of … public order …
(b) for the purpose of protecting the rights and freedoms of other persons; …
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."
The Supreme Court held that the provisions of the 2013 Act which provided for the taking and recording of fingerprints for the purposes of a national identity card were a permissible derogation under section 9(2) as the creation of the card was in the interests of public order and it had not been shown that the provisions were not reasonably justifiable in a democratic society.
The appellant enjoyed more success in his challenge to the storage and retention of the fingerprints. The Supreme Court held that the storage and retention of the fingerprints were not reasonably justifiable in a democratic society under section 9(2). It held that the storage of the data was not sufficiently secure because the safeguards of the Data Protection Act were not sufficient and the storage of the data was not subject to judicial scrutiny and control. The respondents have accepted the Supreme Court's decision on this matter and have altered this part of the statutory scheme, in response to the court's ruling, by repealing the 2013 Regulations and replacing them with the National Identity Card (Civil Identity Register) Regulations 2015 which do not prescribe the recording of fingerprints and encoded minutiae of fingerprints on the register. Counsel for the respondents informed the Board that the encoded fingerprint minutiae were included only on the chip on the biometric identity card and not on the register, that a person's fingerprints were destroyed after he or she was issued with the biometric card, and that the Government had not issued card-readers which would give access to the minutiae on the chip. This was, he said, a "holding position" to comply with the Supreme Court's ruling. When the Supreme Court heard the challenge in September 2014, over 850,000 citizens had applied for identity cards. The Government's current position is that citizens can still use their identity cards issued under the 1985 Act until 31 March 2017.
The Supreme Court has granted the...
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