Carte d’identité nationale : la demande d’injonction du Dr Maharajah Madhewoo rejetée

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MADHEWOO M v THE STATE OF MAURITIUS

2013 SCJ 401

In Chambers

SN 1550/2013

IN THE SUPREME COURT OF MAURITIUS

In the matter of:

Maharajah Madhewoo

Applicant

v.

The State of Mauritius

Respondent

In the presence of:

The Permanent Secretary of the Ministry of Informationand

Communication Technology

Co-Respondent

JUDGMENT

This is an application for an injunction restraining and prohibiting

the respondent

by itself and through its servants, prposs, agents or otherwise to

cause the issue and/or

implementation of a new biometric identity card as from 1 October 2013

pending the

determination of the main action for constitutional redress which the

applicant has very

recently lodged before the Supreme Court.

It is common ground that the respondent has, through Acts of

Parliament and

regulations, introduced and started implementing since 1 October 2013

a scheme for a

new identity card for citizens of Mauritius (the new ID Scheme),which obligates any


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person who applies for the new identity card to provide biometric

information about

himself, including his fingerprints.

At the outset, it is worth reminding that in applications of the

present type, the

Judge in Chambers is called upon to decide whether provisional

measures are warranted

in order to safeguard the rights of a party pending the determination

of a main case and

not to make a final determination of the rights of the parties. It is

certainly not within the

jurisdiction of the Judge in Chambers to decide the constitutionality

of Acts of Parliament

and subsidiary legislation.

Rule 4(a) of the Supreme Court (Judge in Chambers) Rules 2002 provides

that an

applicant must disclose all relevant facts in his initial affidavit

evidence in support of his

application. In the present application, ex facie the applicants

initial affidavit dated 30

September 2013, his case is based on the following grounds:

(i) the obligation to provide biometric information in order to obtain

a new

identity card is an infringement of his constitutional right to

privacy; and

(ii) the said obligation will affect his fundamental right to freedom

of

movement.

With regard to ground (i), the applicant avers that his private

confidential data will

be shared with third parties and that he will stand helpless if ever

there is any misuse or

distortion of his data by officers and institutions of the respondent.

Learned Counsel for

the applicant has submitted that the right to privacy is guaranteed by

sections 3 and 9 of

the Constitution and article 22 of the Code Civil Mauricien. His

contention is that sections3 and 9 should be read purposively together and are the equivalent of

article 8 of the

European Convention for the Protection of Human Rights and Fundamental

Freedoms

(the European Convention). Learned Counsel relies on the decision of

the European

Court of Human Rights in the case of Marper v The United Kingdom

delivered on 4


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December 2008 to the effect that the continued retention of

fingerprints and DNA samples

of individuals after criminal proceedings against them have been

dismissed or

discontinued constitutes a violation of article 8 of the European

Convention.


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With regard to ground (ii), the applicant avers that he will turn 60

next year and this

will affect his freedom of movement as people of 60 years of age will

have to show theirnew ID card whilst travelling. Learned Counsel did not offer any

submissions with regard

to this ground.

As far as the respondent is concerned, with regard to ground (i), it

denies that

there is any infringement of any constitutional right to privacy and

avers that there are

adequate safeguards in the law, namely under the Data Protection Act,

for the collection

and processing of biometric information which will not be shared with

any third party orauthority unless a Court so orders or the disclosure is required under

any enactment. The

respondent further avers that it is acting within the parameters of an

adequate legal

framework which has been put in place for the implementation of the

new ID Scheme.

There are physical security measures as well as technical security

mechanisms to

safeguard and secure the biometric data provided by a person who

applies for a new

identity card.

Furthermore, learned Counsel for the respondent has submitted as

follows:

section 9 of the Constitution does not provide for a general right to

privacy but a right

restricted to the protection for privacy of home and other property

as suggested by its

heading and the wording of subsection (1). Had the framers of our

Constitution intended

to provide us with a constitutionally entrenched general right to

privacy, they would have

expressly done so as has been done in other Westminster model

Commonwealth

jurisdictions. Moreover the fact that the framers of our Constitutiondeparted from the

wording of article 8 of the European Convention is suggestive of the

fact that section 9

was never meant to confer a general right to privacy.

With regard to ground (ii), the respondent avers that the freedom of

movement of


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senior citizens will in no way be impeded since there will be a need

to carry the new

identity card not for travelling but only for travelling on a bus for

free, and there is no

fundamental right to travel on a bus for free.

I have duly considered the whole evidence on record and thesubmissions of

learned Counsel. I may dispose of a first issue. It is clear that the

granting of an interim

injunction is not warranted in the present case. As held in Gujadhur v

Gujadhur Ltd

[1970 MR 25], an interim injunction may be issued where there is

extreme urgency and

there is a need to avert an imminent disaster. This is not the case

here at this stage.


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Section 10A of the National Identity Card Act provides that the

applicant has until 15

September 2014, i.e. almost a year, to apply for his new identity card

and provide hisfingerprints. Contrary to his contention, his constitutional rights

are, therefore, not at

imminent risk of being infringed.

I shall now turn to consider whether I should issue an interlocutory

injunction in

favour of the applicant against the respondent pending the

determination of the main

case. In Malleck Ltd v Mauritius Commercial Bank [1992 SCJ 108], the

appellate

Court laid down the basic principles relating to the granting of an

interlocutory injunction,particularly as enunciated in American Cynamid Co. v. Ethicon Ltd.

[1975 A.C. 396], as

follows:

(1) the applicant who seeks an interlocutory injunction must establish

that he

has a good arguable claim to the right he seeks to protect;

(2) the Court must not attempt to decide the claim on the affidavits;

it is enough

if the applicant shows that there is a serious question to be tried;

(3) if the applicant satisfies those tests, the grant or refusal of an

injunction is a

matter for the exercise of the Courts discretion on a balance of

convenience;

(4) there are a number of factors that may be taken into account at

that stage

of the decision: these are, amongst others, the public interest where

the

acts of a public body are in question, whether damages would be a

sufficient or appropriate remedy, whether the wrong alleged will cause

irreparable prejudice or whether more harm will be done by granting or

refusing an injunction; and

(5) if the extent of the uncompensable disadvantage to each party

would not

differ widely, it may not be improper to take into account in tippingthe

balance the relative strength of each partys case as revealed by the

affidavit evidence adduced on the hearing of the application.

However, the above principles may be applied with variations in a

number of

special categories of cases. In Soornack v Le Mauricien Ltd [2013 SCJ

58], it was held


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that it is well established that in applications for injunctions in

cases of libel (defamation

in written form) the threshold test is not merely to show a serious

question to be tried butin fact to show that there is an actual probability of success in the

main case.

What is the threshold test to be applied in the present case? Learned

Counsel for

the respondent has argued that the threshold test is the one laid down

in Societe des

Chasseurs De Lile Maurice v The Commissioner of Police [2008 SCJ 100]

and it is

not merely a serious question to be tried test. In that case, the

applicant was contesting

the constitutionality of parts of the Firearms Act 2006 and hadapplied for injunctive relief

before the Judge in Chambers. The learned Judge held as follows:

Therefore, short of obvious, flagrant violation of a constitutionally

protected right, I am of the view that the present forum is not the

right

one. These are matters to be considered before the competent Court

where all issues can be fully canvassed and the parties respective

contentions tested contradictorily, rather than on affidavit evidence.

I am

unable to say that the matters disclosed in the affidavits before me

show

such urgency on account of any clear or blatant violation of any

constitutionally entrenched rights as to warrant the intervention of

the

Judge in Chambers by way of an interlocutory injunction prohibiting

the

operation of the law pending the determination of the main case

entered

by the applicants.

I agree that the threshold test in the present case is that the

applicant must show

urgency on account of a clear or blatant violation of a

constitutionally entrenched right ofhis. This is a more stringent test than to merely show that there is a

serious question to

be tried and is justified by the fact that the applicant is in effect

asking the Court to prevent

the Executive from implementing laws which have been regularly enacted

by Parliament

and are presumed to be constitutional.


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As a matter of fact, the laws passed in order to provide a legal

framework for the

introduction and implementation of the new ID Scheme are section 15 of

the Finance

(Miscellaneous Provisions) (No. 2) Act 2009 (Act No. 20 of 2009), the

National Identity

Card (Miscellaneous Provisions) Act 2013 (Act No. 18 of 2013), theNational Identity Card

Regulations 2013 (Government Notice No. 216 of 2013) and the National

Identity Card

(Particulars in Register) Regulations 2013 (Government Notice No. 237

of 2013).

The applicant is contending that these laws are in breach of his

constitutional

rights of privacy and of movement. It is appropriate to set out the

relevant extracts of the

provisions of the law on which the applicant is grounding his case.


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Sections 3(c) and 9(1) of our Constitution read as follows:

3 Fundamental rights and freedoms of the individual

It is hereby recognised and declared that in Mauritius there have

existed and shall continue to exist without discrimination by reason

of

race, place of origin, political opinions, colour, creed or sex, but

subject to

respect for the rights and freedoms of others and for the public

interest,

each and all of the following human rights and fundamental freedoms

(a) ...

(b) ...

(c) the right of the individual to protection for theprivacy of his home and other property and from

deprivation of property without compensation, ..

9 Protection for privacy of home and other property

(1) 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.

Article 8 of the European Convention, on the other hand, reads as

follows:

Right to respect for private and family life

1. Everyone has the right to respect for his private and family life,

his

home and his correspondence.

Article 22 of the Code Civil Mauricien reads as follows:

22. Chacun a droit au respect de sa vie prive.

Les juridictions comptentes peuvent, sans prjudice de la

rparation du dommage subi, prescrire toutes mesures, telles que

squestre, saisie et autres, propres empcher ou faire cesser une

atteinte lintimit de la vie prive.

Ces mesures peuvent, sil y a urgence, tre ordonnes par le

Juge en Chambre.

Section 15(1) of our Constitution reads as follows:

15. Protection of freedom of movement


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(1) No person shall be deprived of his freedom of movement,

and for the purposes of this section, that freedom means the right to

move freely throughout Mauritius, the right to reside in any part of

Mauritius, the right to enter Mauritius, the right to leave Mauritiusand

immunity from expulsion from Mauritius.

It is the respondents contention that our Constitution does not

provide for a

general right to privacy but a right restricted to the Protection for

privacy of home and

other property as suggested by the heading and the wording of section

9 (above) and

by the fact that the framers of our Constitution have not expressly

provided us with a

constitutionally entrenched general right to privacy as they could

have done.

On the other hand, it is the applicants contention that sections 3

and 9 should be

read purposively together and are the equivalent of article 8 of the

European Convention.

There is no doubt that the wording of article 8 is not the same as

that of sections 3 and 9

of our Constitution (above), hence the submission of learned Counsel

for the respondent

that the decision in Marper v The United Kingdom (above) is not

relevant in our context

as it is predicated on article 8. In this context, it is to be noted

that in Matadeen v Pointu

[1998 MR 172], the Judicial Committee of the Privy Council observed

that Chapter II of

our Constitution is evidently based on the European Convention but

there are also

significant differences in language and structure and it cannot be

assumed that particular

sections were necessarily intended to have the same meanings. In

Union of

Campement Sites Owners and Lessees v The Government of Mauritius [1984

MR

100], it was held that we should be very cautious in importing

wholesale into the structureand framework of our Constitution complete articles from foreign

Constitutions.

In this context, the United Kingdom and the Indian decisions quoted by

the

applicant in support of his case are of no real help to him and must

be viewed in their own


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political and legal contexts. Ex facie the extract from the Guardian

newspaper annexed to

the applicants affidavit, it was eminently a political decision of

the newly elected incoming

Conservative-Liberal Democrats government to scrap the national

identity card scheme

introduced by the outgoing Labour Government. And the Aadhar cardsin India were

issued through an executive order and not pursuant to an Act of

Parliament.

As regards the applicants freedom of movement, it is difficult to see

how it can be

seriously contended that the new ID Scheme will affect this

fundamental right of the

applicant. At worst, the non possession of the new identity card will

prevent the applicant


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from travelling by bus for free, which cannot be said to be a

fundamental right entrenched

in the Constitution. It will certainly not prevent the applicant from

travelling be it by busagainst payment, car or other means of transport. In any case, as

rightly pointed out by

learned Counsel for the respondent, there is no urgency in relation to

the applicants

travelling as a senior citizen inasmuch as he will not be 60 until

2015 ex facie his own

existing identity card.

As already stated above, it is not within the jurisdiction of the

Judge in Chambers

to decide whether a law is constitutional or not. However, in the

light of the cogentarguments advanced by learned Counsel for the respondent, it does

appear that the

applicant will have to surmount a formidable obstacle before the

competent Court in order

to prove his case as set out in his affidavit and documentary

evidence. Moreover, there is

clearly no urgency in the present case as the applicant has until 15

September 2014 to

apply for his new identity card and provide his fingerprints and as

his existing identity card

will remain valid until 15 September 2014 under section 10A of the

National Identity Card

Act. In these circumstances, I find that the applicant has, on the

evidence on record,

failed to show urgency on account of a clear or blatant violation of

his constitutionally

entrenched rights such as to warrant the intervention of the Judge in

Chambers.

As already pointed out above, a person making an application before

the Judge in

Chambers must disclose all relevant facts in his initial affidavit

evidence in support of his

application. However, the applicant has sought to introduce, as it is

by the back door, newgrounds in his second affidavit dated 3 October 2013. He now further

avers that the new

ID Scheme will be in breach of his right to liberty and will

constitute an inhuman and

degrading treatment. These new grounds have been averred in a

haphazard and

confused manner without stating with precision which sections of the

Constitution have


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allegedly been breached and without being substantiated, with the

applicant indulging in

mere conjectures and speculations.

The applicant has also invoked article 22 of the Code Civil Mauricien

(above).

However, this is an ordinary law and the applicant himself has chosento seek

constitutional redress. Moreover, as rightly submitted by learned

Counsel for the

respondent, a right provided for in an ordinary law can be limited,

modified or varied by a

later ordinary enactment.


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In the light of my finding that the applicant has failed to show

urgency on account

of a clear or blatant violation of his constitutionally entrenched

rights such as to warrantmy intervention, there is strictly speaking no need for me to consider

where the balance of

convenience lies. I shall, nevertheless, proceed to do so and I find

that the balance of

convenience is in favour of respondent. The new ID Scheme has been

widely publicized

for months now. The applicant, for his part, has lodged the present

application only on the

eve of the new ID Scheme being implemented on 1 October of this year.

In Auckbarally

v Jankee [1977 MR 265], it was held that an injunction being an

equitable remedy, hewho seeks such a remedy must show that he has acted with due celerity

and has not

been guilty of laches. Moreover the respondent is giving effect to

the Acts of Parliament

implementing the new ID Scheme which are presumed to be constitutional

and the

balance of convenience is in favour of maintaining compliance with the

law in the absence

of compelling evidence of a clear or blatant violation of a

constitutionally entrenched right.

For the above reasons, I decline to issue the injunction prayed for by

the applicant.

I, accordingly, set aside the present application with costs. I

certify as to Counsel.

D. Chan Kan CheongJudge

14 October 2013

For Applicant :

For Respondent :

For Co-Respondent:

Mr. K. Bokhoree, Attorney-at-LawMr. S. Teeluckdharry, together withMr.

E. Mooneapillay and Mr. D. Mooneesamy, of Counsel

Ag. Chief State AttorneyMrs A. D. Narain, Parliamentary Counsel,

together withMr. S. Namdarkhan, Senior State CounselAg. Chief State AttorneyMr. D. Reetoo, Senior State Counsel together

withMs K. Domah, Temporary State Counsel


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Carte d’identité nationale : la demande d’injonction du Dr Maharajah Madhewoo rejetée

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